kcsl panel feminists@law, vol 4, no 1 (2014) measuring labour and rethinking value lisa adkins* in this lecture, part of feminists@law's series on 'labour, value and precarity in the age of austerity', lisa adkins considers the form of labour which has been at the very heart of feminist theorizations of immaterial labour, namely domestic labour. she considers transformations to this labour in the context of financialization, and in particular the direct links which are being forged between domestic labour and the creation of financial value. adkins considers the implications of these links, or more precisely, of the financialization of domestic labour, for the current state and future of the relations of social reproduction.'   *lisa adkins is the bhp billiton chair of sociology at the university of newcastle, australia; email lisa.adkins@newcastle.edu.au. untitled document feminists@law, vol 5, no 2 (2016) the protection of civilians and protection of peacekeeping mandates: gender and ethics in collective security gina heathcote* this is an audio recording of a lecture given at the centre for critical international law and centre for law, gender and sexuality, university of kent, on 1 march 2016. the lecture considers how security council authority and legitimacy gain traction through the deployment and development of normative provisions. it focuses on the robust peacekeeping mandates in the security council resolutions on the protection of civilians and on women, peace and security to demonstrate how the security council's thematic resolutions are increasingly used to justify new modes of force. this raises questions regarding the ethics of a feminist project focused on supporting the women, peace and security framework that is increasingly co-opted into militarised peacekeeping. at the same time the council's use of gender perspectives and the protection of civilians narrative is seemingly used to avoid scrutiny of its agenda and mandates, suggesting the development of normative and thematic work as requiring greater scrutiny from critical and feminist actors. * dr gina heathcote is a senior lecture in law and gender studies at the school of law, soas, uk. her research interests include feminist legal theory, the international law of armed conflict and the use of force, and gender dynamics in peacekeeping and collective security. her forthcoming book, feminist dialogues in international law, will be published in 2016 by oxford university press. untitled document feminists@law, vol 5, no 2 (2016) sexual assault and advance consent: a feminist judgment in r v ja jennifer koshan* this is an audio recording of a seminar given at the kent centre for law, gender and sexuality, university of kent on 12 november 2015. the paper discusses a draft feminist judgment in r v ja [2011] scc 28 (supreme court of canada), a spousal sexual assault case involving the issue of whether parties can consent in advance to sexual activity that will occur while they are asleep or unconscious. the ja ruling has generated critique and debate amongst feminists and law and sexuality scholars that pits women's security interests against their sexual autonomy. the judgment endeavours to analyse whether it is possible to adopt an approach to advance consent that advances both of these interests, or whether they are ultimately irreconcilable.  in doing so, it explores the proposal of justice fish, writing in dissent at the supreme court of canada, that an appropriate balance might be that taken under s 75(2)(d) of the uk's sexual offences act 2003, which creates a presumption against advance consent but not an absolute bar to arguing it. the author is a member of the women's court of canada project, the first feminist judgment re-writing project internationally, and she also speaks to the potential value as well as challenges of feminist judgment writing. *jennifer koshan is a professor in the faculty of law, university of calgary, and was a visiting scholar at the kent centre for law, gender and sexuality in autumn 2015. kcsl panel feminists@law, vol 4, no 1 (2014) the contribution of feminism to contemporary public debates about law nicola barker, sinéad ring, maria drakopoulou and rosemary hunter* this is an audio recording of a panel session at the kent critical law society conference, 'the society of control: interrogating law, governance and regulation', held on 1-2 march 2014 in keynes college, university of kent. the panel, titled 'the contribution of feminism in contemporary public debates about law', featured three speakers. nicola barker spoke on 'feminism, family and the politics of austerity' (commencing at 1.10). the powerpoint slides accompanying her presentation are provided alongside this audio file. sinéad ring spoke on 'the pernicious nature of rape myths and how they continue to affect rape prosecutions' (commencing at 16.30). maria drakopoulou spoke on 'feminism, tradition and the question of sexual violence' (commencing at 41.00). rosemary hunter acted as discussant, commenting on all three papers (commencing at (1.05.38). the speakers are introduced at the beginning by serena natile.     *all four speakers are members of the law school, univerrsity of kent, uk. email n.j.barker@kent.ac.uk; s.ring@kent.ac.uk; m.drakopoulou@kent.ac.uk; r.c.hunter@kent.ac.uk. feminists@law, vol 4, no 1 (2014) betsy stanko, 'the policing and prosecution of rape: what do we know and how should our knowledge shape policy and practice?' this is a video of a lecture given by betsy stanko at lse on 11 march 2014, in which she presents the findings of her research on the investigation and prosecution of rapes reported to the metropolitan police service over the 8 years from 2005-2013. the lecture is followed by comments from panellists louise ellison, martin hewitt and harriet wistrich. louise ellison addresses the treatment of rape complainants with mental health conditions; martin hewitt discusses the need to provide access to justice for rape victims; and harriet wistrich talks about the recent civil case, dsd v commissioner of police for the metropolis [2014] ewhc 436 (qb), in which two of the victims of serial rapist john worboys successfully sued the metropolitan police under the human rights act 1998 for failures in their investigation of the rapes. the event was organised by lse law, lse gender institute and the mannheim centre for criminology, and was chaired by christine chinkin. betsy stanko from donatella alessandrini on vimeo. the lecture can also be found on the lse website. betsy stanko is honorary professor of criminology at royal holloway, university of london and assistant director, planning and portfolio, metropolitan police service. she is soon to join the mayor of london's office on policing and crime as head of insight and evidence. christine chinkin is professor of international law at the lse and acting director of the centre for the study of human rights. louise ellison is professor of law at the university of leeds. martin hewitt is the deputy assistant commissioner, specialist crime and operations, metropolitan police service. harriet wistrich is a solicitor with birnberg pierce and partners. time for reflection? considering the 'past', 'present', and 'future' of feminist legal scholarship | a roundtable discussion 2010 pecans conference 'transgressing power(s)' 30 april 2010 university of westminster in his "theses on the philosophy of history" (1940), walter benjamin called for a blasting open of the continuum of history. his call was one that would bring into question teleological narratives of progress, and urge a radical rethinking of the concept of the òpresent.ó similarly, judith jack halberstam considers the ability of new temporal logics to òopen up new life narratives and alternative relations to time and spaceó (2005). though differently conceptualized, these insights from benjamin and halberstam make poignant interventions on the pitfalls of unreflective time, and the political possibilities of imagining a new temporality. what do such insights mean for feminist legal studies? has an orientation towards a "future" feminist ideal been productive in feminist legal scholarship and activism? how does your own work engage with temporality? does a reconceptualization of time offer any insight for your work, or for feminist legal projects more generally? discussion of these questions intends to interrogate what is often taken for granted as "progress" within the field, and to consider the benefits and drawbacks of thinking feminist research and activism inside or outside (or indeed of deploying this dualism in the first place) the domain of chronological time. roundtable participants: brenna bhandar (law, kent), julia chryssostalis (law, westminster), elena loizidou (law, birkbeck), and janice richardson (law, exeter) chair: sarah keenan (law, oxford brookes) panel organiser: stacy douglas (law, kent) part i: time for reflection? brenna bhandar (part 1) from stacy douglas on vimeo. part ii: time for reflection? julia chryssostalis (part 2) from stacy douglas on vimeo. part iii: time for reflection? elena loizidou (part 3) from stacy douglas on vimeo. part iv: time for reflection? janice richardson (part 4) from stacy douglas on vimeo. keywords: feminism, law, time, pecans, feminists@law ellison et al audio feminists@law, vol 5, no 1 (2015) accessible justice? rape victimisation and psychosocial disability louise ellison, vanessa munro, katrin hohl and paul wallang this is an audio recording of a paper delivered as part of the 'sexual offences and offending' stream at the slsa annual conference, university of warwick, on 1 april 2015. the powerpoint presentation associated with the paper is provided in the accompanying pdf document. in a context in which research evidence indicates high rates of alleged sexual victimization amongst adults with psychosocial disabilities (psd), this paper sets out to explore some of the challenges that are posed to the criminal justice system by these types of complainants. we do so by drawing upon rape allegation data recently collected by the london metropolitan police service over a two month period. our analysis of this snapshot of metropolitan police rape reporting suggests that a significant number of rape complainants have recorded psds, and that these complainants are significantly more likely than those without recorded psds to experience additional, circumstantial vulnerabilities, including intellectual disability, alcohol and/or drug dependency, and repeat victimisation. our findings also suggest that cases involving complainants with recorded psds are significantly more likely to suffer attrition – to ‘drop out’ of the criminal justice system – due to police or prosecutorial decision-making. in this paper we reflect upon possible explanations for this heightened attrition rate but also use our snapshot analysis as a stepping off point from which to highlight the need for more sustained critical research on the treatment of complainants, and the adequacy of police and prosecutor training and practice in this area. louise ellison is a professor of law at the university of leeds, uk. email l.e.ellison@leeds.ac.uk. vanessa munro is professor of socio-legal studies at the university of nottingham, uk. email vanessa.munro@nottingham.ac.uk. katrin hohl is a lecturer in criminology at city university london, uk. email katrin.hohl.1@city.ac.uk. paul wallang is a consultant psychiatrist at st andrew's healthcare conaghan audio feminists@law, vol 5, no 1 (2015) challenging and redressing police failures in the context of rape investigations: the civil liability route joanne conaghan this is an audio recording of a paper delivered as part of the 'sexual offences and offending' stream at the slsa annual confeerence, university of warwick, on 1 april 2015. the question of police attitudes to and conduct of rape complaints has been in the british public eye now for some time. a damning succession of studies have catalogued police failings, from initial reporting through to final disposition of a case, generating a mountain of data evidencing deep structural, institutional, and cultural problems going to the heart of the effectiveness of the criminal justice system. located within a broader policy context of growing concern over the low rate of convictions for rape cases and set against a backdrop of substantial reform of rape law, not just in england and wales but around the globe, the police handling of rape investigations has attracted repeated criticism and public scrutiny. one way of addressing these concerns is through strategic civil litigation. looking beyond the uk, it is clear that both tort and human rights arguments have been successfully invoked to redress systemic and operational problems pertaining to the police conduct of rape investigations. within the uk, such developments have been constrained by the doctrinal framework, particularly by the strong judicial deference given to policy considerations against civil liability first articulated in hill v chief constable of west yorkshire (1989). however, recent developments in human rights law and, in particular, the successful suit against the metropolitan police for investigative failures in the context of the ‘black cab rapist’ case (dsd & nbv v commissioner of police for the metropolis (2014)) suggest that this avenue of redress may now be opening up. how should this development be viewed in the context of the wider problem rape presents to criminal justice? can civil liability be deployed effectively to bring about transformative cultural and institutional change in the context of investigating and prosecuting rape? might it deliver results where all else appears to have failed? the purpose of this paper is to begin to explore these questions. joanne conaghan is a professor of law and head of the law school at the university of bristol, uk. email joanne.conaghan@bristol.ac.uk. dean spade, 'equality claims and population control' keynote address pecans international workshops july 2011 centre for feminist legal studies, university of british columbia critical race theory generally and intersectionality theory in particular have provided scholars and activists with clear accounts of how the legal approaches to oppression that have been taken up through the anti-discrimination principle have failed to sufficiently change conditions for those facing the most violent manifestations of settler colonialism, heteropatriarchy, white supremacy, ableism, and xenophobia. these interventions have exposed how discrimination principle's reliance on individual harm, intentionality, and universalized categories of identity has made it ineffective at eradicating these forms of harm and violence and has obscured the actual operations of systems of meaning and control that produce maldistribution and targeted violence. this paper follows this line of thinking an additional step to focus on the racialized-gendered distribution schemes that operate at the population level through programs that declare themselves race and gender neutral but are founded in the production and maintenance of race and gender categories as vectors for distributing life chances. in the context of intensifying criminal and immigration enforcement and wealth disparity, it is essential to turn our attention to what foucault called "state racism"--the operation of population-level programs that target some for increased security and life chances while marking others for insecurity and premature death. this paper looks at how social movements resisting intersectional state violence are formulating demands (like prison abolition and an end to immigration enforcement) that exceed the narrow confines of the discrimination principle and take administrative systems as adversaries in ways that pull the nation-state form itself into crisis. video by stacy douglas music by john maus 'believer' (upset the rhythm 2011) dean spade on 'equality claims and population control' from stacy douglas on vimeo. dean spade is an assistant professor at the seattle university school of law. in 2002, dean founded the sylvia rivera law project (srlp.org), a non-profit law collective that provides free legal services to transgender, intersex and gender non-conforming people who are low-income and/or people of color. while working at srlp, dean also taught at columbia and harvard law schools. dean was recently awarded a dukeminier award for his 2008 article "documenting gender" and the 2009-2010 haywood burns chair at cuny law school, and was selected to give the 2009-2010 james a. thomas lecture at yale. untitled document feminists@law, vol 7, no 1 (2017) queering asylum anxieties: sexual orientation and gender identity refugee claims senthorun raj*  this is an audio recording of a paper given at the socio-legal studies association annual conference, newcastle university, 5-7 april 2017. over the last three decades, an increasing number of anglophone courts have recognised asylum claims on the basis of sexual orientation and gender identity. such jurisprudence has been heralded for “progressing” lgbti rights. yet, the progressive promise of these “pro-lgbti” decisions leaves much more to be desired. often formulated under the rubric of a “particular social group,” the extent to which queer refugees have been granted protection has been contingent on whether they subscribe to normative ideas of intimacy, identity, and injury. specifically, queer refugees must demonstrate they have a “well-founded fear of persecution” by subscribing to ethnocentric assumptions about sexual citizenship, gender expression, erotic relationships, and state violence. while the concept of fear has been central to the grant of asylum under international law, it has also been mobilised in legal, political, and academic responses to the adjudication of such claims. specifically, the fear about having a refugee jurisprudence that is too queer has led to states attempting to curb opening the proverbial “floodgates.” this anxious attempt at control has been painfully fleshed out in the way courts navigate the nexus between “authenticating” immutable sexual or gender identities and “counting” what amounts to sustained state persecution. drawing on appellate case law from australia, uk, us, and the eu, my paper will disturb how fear stifles the recognition of queer identity, intimacy, and injury. by disrupting judicial gestures, i will consider how “asylum anxieties” continue to undermine queer claims for protection. * lecturer in law, keele university, uk. s.raj@keele.ac.uk breny mendoza a latin american feminist perspective ______________________________________________________________________ feminists@law vol 1, no 1 (2011) ______________________________________________________________________ the role of the law in the rule of law of the new oligarchies: a latin american feminist perspective breny mendoza* as i think about the role that the law played in the preparation and execution of the military-civilian coup d’etat in honduras in june of 2009, i’ve become more aware of the importance of the law for oligarchic rule under the new conditions of neoliberal global capitalism. this may have been always the case, but there is a particularity in the use of the law today that deserves our unrelenting attention. we can refer to the configuration of the indefinite detainee and the new modalities of imprisonment in guatánamo of the bush era that came about by the suspension and derealization of the law to create precisely the new juridical figure of the indefinite detainee. judith butler has been very eloquent in the description of this legal phenomenon in her book precarious life. her reflections there helped me understand how the pentagon and the honduran oligarchy used the law and the supposed defense of the constitution to violently depose and deport the democratically-elected president of honduras, institute a “constitutional succession” by naming an unconstitutional successor, and later call elections under a state of siege and the suspension of the law. documents released by wikileaks reveal the absolute knowledge of the us embassy of the distortion of the law to carry out the coup. we, of course, have similar things occurring in haiti, afghanistan, and iraq. now interestingly, anti-oligarchic and anti-neoliberal social movements in latin america also make use of the law to constitute a new social power. this has been the case of venezuela, bolivia, and ecuador where social movements were able to grab control of state power and reissue new constitutions that recouped sovereign power to the people. needless to say, in the same process of constitutional renewal the power of social movements became entangled with a state power that now disputes their sovereign power. as i have mentioned elsewhere, there is a plasticity, breakability, and perversity in the law as well as an intimacy of the law with oligarchic and state power that makes legal codes and legal practices compatible with military codes and undemocratic rule. but more importantly, because of this peculiarity of the law, constitutional processes that aim to recover the sovereignty of the people can be rendered meaningless, if the process towards the constitution is not accompanied by a politics of intersectionality that puts into question the abstract notion of the people. in other words, constitutional processes to recover the sovereign power of the people must consider the ways power is constituted by gender, race, class, and sexuality, as well as by other divisive practices, before it can become meaningful. feminist legal scholars and activists have a lot to contribute in the rethinking of the rule of law and the reformulation of constitutions. in latin america feminists have had to face the challenge of enabling intersectional politics to have their feminist agenda included in the new constitutions. the success has been rather mixed and we find instances in which feminists must confront male dominated indigenous movements that downplay the role of gender in the new popular power (bolivia and ecuador) or have had to question their own entanglements with liberalism and the coloniality of power. in the case of honduras, where social movements were unable to reverse the coup because of the intervention of the pentagon and the us department of state led by hillary clinton, feminists are already facing difficulties in finding out what is or should be feminist in a future constitution that resurrects popular sovereignty. feminists in honduras are already questioning the validity of constitutions to construct an alternative to oligarchic power. yet rewriting constitutions has become the most important strategy for anti-oligarchic, anti-neoliberal and feminist social movements in latin america that want the refoundation of the nation and the decolonization of society. these movements have a lot to teach the west and the united states in particular, as oligarchic power is becoming more entrenched in state power. here again we find other examples of the perverse use of the law as in the case of sweden that uses a law passed as a result of feminist struggle against the impunity of rape to criminalize a dissenter of oligarchic rule like julian assange of wikileaks. or the attempt by some us politicians to resurrect the espionage act to not only apprehend assange but also to restrict the civil rights of americans in the name of national security and the rule of law. all these uses of the law must give pause to transnational feminists. we will need to construct a new research agenda and a new feminist legal scholarship that helps us construct the links between the new legalese and legal discourses that occur at both sides of the divide of the global south and the global north. * associate professor of gender and women’s studies, california state university northridge, usa. �hyperlink "mailto:breny.mendoza@csun.edu"�breny.mendoza@csun.edu�. � judith butler, precarious life: the powers of mourning and violence (london: verso, 2004). � wikileaks revela actos corruptos de roberto micheletti en honduras �hyperlink "http://mexico.cnn.com/mundo/2011/01/29/wikileaks-revela-actos-corruptos-de-roberto-micheletti-en-honduras"�http://mexico.cnn.com/mundo/2011/01/29/wikileaks-revela-actos-corruptos-de-roberto-micheletti-en-honduras� (as accessed on 11/04/2011). wikileaks-honduras,‘revela participación de los eeuu en el golpe de estado contra zelaya’. available online at �hyperlink "http://fidelernestovasquez.wordpress.com/2010/11/30/wikileaks-honduras-revela-participacion-de-los-eeuu-en-el-golpe-de-estado-contra-zelaya/"�http://fidelernestovasquez.wordpress.com/2010/11/30/wikileaks-honduras-revela-participacion-de-los-eeuu-en-el-golpe-de-estado-contra-zelaya/� (as accessed on 11/04/2011). laprensa, ‘honduras: micheletti, lobo y vásquez en nuevos cables de wikileaks’. available online at �hyperlink "http://www.laprensa.hn/pa%c3%ads/ediciones/2011/01/30/noticias/honduras-micheletti-lobo-y-vasquez-en-nuevos-cables-de-wikileaks"�http://www.laprensa.hn/pa%c3%ads/ediciones/2011/01/30/noticias/honduras-micheletti-lobo-y-vasquez-en-nuevos-cables-de-wikileaks� (as accessed on 11/04/2011). los angeles times, ‘wikileaks on latin america: honduras coup 'illegal'. available online at �hyperlink "http://latimesblogs.latimes.com/laplaza/2010/11/wikileaks-latin-america-venezuela-honduras-paraguay-argentina.html"�http://latimesblogs.latimes.com/laplaza/2010/11/wikileaks-latin-america-venezuela-honduras-paraguay-argentina.html� (as accessed on 11/04/2011). ________________________________________________________________ 2 ________________________________________________________________ 1 douglas introduction: diminishing returns? _________________________________________________________________________ feminists@law vol 1, no 2 (2012) ________________________________________________________________________________ introduction: diminishing returns? feminist engagements with the return to “the commons” stacy douglas* garrett hardin’s now infamous essay ‘the tragedy of the commons’ (1968) stands as a hobbesian analogy for what he claims are the inherent destructive capacities of human beings that perpetually stand in the way of realizing a free community of individuals with shared resources. hardin’s essay suggests that, when faced with the responsibility of sharing the commons, individual human self-interest or fear of it will win out over practices of collectivity, sharing, and mutual aid. more recently, there has been a resurgence in political theory and political philosophy addressing the concept of “the commons”. some of the most popularly cited references to the idea can be found in the work of slavoj žižek (2009) and hardt and negri (2009). this work has further been expounded upon in international conferences devoted to ‘the idea of communism’ in london (2009) and berlin (2010), as well as the publication of an edited collection with the same title (žižek and douzinas 2010). steeped in the philosophy of spinoza, hardt and negri use a notion of the common that ‘…does not position humanity separate from nature, as either its exploiter or its custodian, but focuses rather on the practices of interaction, care, and cohabitation in a common world, promoting the beneficial and limiting the detrimental forms of the common’ (2009: 8). for žižek, the commons is comprised of culture (‘primarily language, our means of communication and education, but also shared infrastructure such as public transport, electricity, post, etc…’), external nature (‘from oil to forests and the natural habitat itself’), and internal nature (‘the biogenetic inheritance of humanity’), and are all increasingly enclosed by the forces of global capital (2009: 53). it is the process of our exclusion from these commons (‘our symbolic substance’) that žižek argues should effectively proletarianize us into fighting for something more than capitalist liberal democracy a system whose laissez-faire violence is justified through the empty gesture of ‘universal inclusion’ without any material bite (2009: 55). žižek’s answer to this political conundrum is a call for communism. and yet, the past century has seen vast and varied critical feminist engagements with historically changing concepts of communism and “the commons”. struggles for universal suffrage, critiques of universality, denouncements of the hollowing out of the welfare state as a result of neoliberalisation (see brenner et al. 2012; hugill et al. 2011), and challenges to the concept of the human, are all examples of a rich and diverse feminist tradition of engagement with the concept of “the commons”. given the popular return to the idea of the commons, what more does feminist analysis have to give to this conversation? does the concept still have potential for future feminist projects? if so, what is this potential and what do these projects look like? how do they resonate or not with those of the past? further, what role if any does the “the state” play in these imaginings? on 23 march 2011, the kent centre for law, gender, and sexuality (kclgs) and kent law school hosted a workshop with donatella alessandrini, brenna bhandar, rosemary coombe, radhika desai, denise ferreira da silva, and nina power to explore these questions. originally scheduled to take place in a reserved seminar room, in a last minute decision the workshop was moved to the eliot college dining hall as a gesture of solidarity with students who had occupied it a day earlier. this occupation came just three months after kent students carried out a four-week occupation of the senate building that lasted over christmas and new year. both protests were part of a uk-wide student movement intent on drawing attention to the increasing student fees and heavy-handed austerity measures being implemented by the conservative/liberal democrat coalition government, measures that are still the subject of widespread public protest almost an entire year later. the dining hall is located in a busy area of the university with a high amount of student foot traffic and is a regular spot for student meetings and group activities. as such, the location change made for some difficulty in hearing and delivering papers at the workshop. as a result we were in constant negotiation with other users of the space about how best to accommodate everyone’s needs while still expressing allegiance to the political thrust of the occupation. some of these negotiations went poorly and some were more successful. most importantly, however, although we experienced frustrating levels of noise and disruption throughout the day, we were also able to experience the rewards of negotiating the stickiness of “solidarity” and “the commons”. in fact, it was the difficulty of these amorphous terms that inspired the idea of the workshop in the first place. and so, how fitting it was that in response to what some of us have experienced as overly smoothed conceptions of “the commons”, “communism” and “revolution” in other conversations, our workshop engaged with both theoretical and practical difficulties of the terms. moreover, amidst our theoretical conversations about “the public”, “the commons”, and subversive property regimes, disputes over legal entitlements to university space were negotiated in both physical and ideological terms in our very presence. nearing the end of the day university staff and security arrived on site to inform the occupiers that they had to leave the space. of course, this experience confirmed what we already knew the local, national, and global relevance of these conversations is intimately bound up with pressing political issues that cannot be evaded through soundproof university classrooms. the papers that follow mark the beginning of conversations attempting to bring this milieu of activism, feminism, anti-colonial and anti-racist approaches to bear on the return to “the commons”. as such, they begin to help explicate some of these pressing political issues in a time when such work is much needed. references brenner, neil, nik theodore and jamie peck. 2012. ‘towards deep neoliberalization?’ in j. künkel and m. mayer (eds.). neoliberal urbanism and its contestations – crossing theoretical boundaries. london: palgrave macmillan. forthcoming. hardin, garrett. 1968. ‘the tragedy of the commons’. science. vol. 162. no. 3858. 1243-1248. available at: http://www.garretthardinsociety.org/articles/art_tragedy_of_the_commons.html. hardt, michael and antonio negri. 2009. commonwealth. cambridge: harvard university press. hugill, david, peter brogan and nik theodore. 2011. ‘the everyday violence of urban neoliberalism: an interview with nik theodore’. mr zine. may. available at: http://mrzine.monthlyreview.org/2011/theodore050411.html. žižek, slavoj. 2009. ‘how to begin from the beginning’. new left review. vol. 57. may-june, 43-55. available at: http://www.newleftreview.org/?view=2779. žižek, slavoj and costas douzinas (eds.). 2010. the idea of communism. london: verso. * phd student, kent law school, university of kent, uk. � hyperlink "mailto:stacydouglas@gmail.com" �stacydouglas@gmail.com�. ________________________________________________________________________________ 2 _________________________________________________________________________ 1 feminist futures karin van marle feminist futures __________________________________________________________________________________ feminists@law vol 1, no 1 (2011) __________________________________________________________________________________ feminist futures karin van marle* what research and or political issues are currently important for feminist legal studies and what issues need to be addressed by feminist legal studies in the future? responding in a meaningful way to these questions posed by the feminists@law editorial board has been much more difficult than i thought it would be when i was approached initially. why? is it because there are so many issues that are important and that need to be addressed that i don’t know where to start? or is it that there are still after so many years of feminist struggle so many important and urgent issues? or is it because the important and urgent issues seem to be getting more by the day? it is probably all of the above. i was asked to respond specifically from my perspective, so below i tentatively raise a few issues that are pertinent in post-apartheid south africa in my view. let me start by again noting the difficulty. the continuing socio-economic inequality of women should be high if not the priority on the agenda. similarly the extreme sexual violence against women and girls and the high incidence of rape of women and girls should be taken seriously when considering feminist research and politics. the particular plight of black women, of women infected with hiv/ aids and of gay women should be recognised in terms of socio-economic inequality as well as sexual violence and rape. but restating these problems and repeating the ongoing devastation in the face of a seeming progressive constitution and constitutional court has been done and will add nothing new to feminist legal studies in south africa or elsewhere. a more important task – because this has been on the agenda – could be to do more analysis of the reasons for the failure. and here from my own perspective as an academic working at a university my suggestion for feminist legal studies (and also for feminists@law) is twofold. firstly i would like to see feminist research seeking for the ideal of justice, even though it is unattainable. this search for justice is one that encompasses an involvement with norms and ideals, not merely numbers, measures and statistics. secondly, feminist politics in my mind could benefit by exploring the notion of an ‘ethics of discomfort.’ i elaborate briefly on both suggestions below following marianne constable’s ‘nietzsche, nihilism, and the social scientification of law’ (1994) and michel foucault’s ‘for an ethics of discomfort’ (1997). as already noted i am treading on thin ice – how could i, given the already mentioned state of devastation, argue for what may seem as a purely abstract, theoretical and idealistic research path and given the precarious position of women as political agents suggest an embrace of discomfort? constable (1994) responds to the influence of sociology on legal theory in the us. space does not allow me to repeat her argument in any detail. however, to my mind constable’s argument has important implications for feminist research and the future of feminist research and i will take out only what i regard as the most pertinent for my tentative suggestions concerning feminist legal research. constable follows nietzsche’s history of metaphysics as told in twilight of the idols (1889) in which he illustrates how through various phases (platonism, christendom, kantianism and utilitarianism) the ‘real’ or ‘true’ world has been replaced by a world of phenomena, one that is observed and described according to empirical precision. translating this into legal research one finds a similar shift from questions posing ‘what should the law be?’ and ‘why should one obey the law?’, ‘ought questions’, to questions posing ‘what is law?’, ‘why do individuals and groups obey the law?’, typical ‘is’ questions (constable 1994: 555). like nietzsche, constable’s concern is that in observing the apparent we are not more focused on material issues linked to the ideal and the just, but those also disappear: ‘we have abolished the real world: what world is left? the apparent world perhaps. … but no! with the real world we have also abolished the apparent world’ (constable 1994: 552). constable’s argument amounts to much more, but bringing this to bear on my suggestion here: i am not sure that all the focus on the material situation of women (as if such a situation can ever be grasped and described fully), albeit meticulously measured and described, contributes to the ideal of justice. rather, i would urge questions of the ought to be of woman’s being and becoming. practically this does not mean that feminists should discontinue gaining facts and information about women’s lives, but we should acknowledge the ethical limit of these attempts and strive to do more of the difficult, conceptual and less certain work. sometimes as feminists we should refuse to engage in another counting exercise, of being counted by others but also of counting and measuring ourselves. feminist legal studies should be careful not to accept an understanding of law and specifically feminist jurisprudence that amounts to ‘sociological knowledge as the truth about law … sociology – whether as science or as interpretation, as law or as philosophy – speaks the truth of positive law in the language of belief and appearance, the language of “legitimacy”, “values”, “norms”, “distribution”, and “policy” – from which justice and the “true” world disappear’ (constable 1994: 588). toward the end of the 1994 article constable asks, ‘what world is left … what remains?’ (588) the danger for law and also feminist legal studies is for ‘the law of sociology … to become absolute command. … sociological law threatens to be the consummation of nietzsche’s history of metaphysics: the permanent transfiguring or becoming of absolute subjectivity’ (constable 1994: 590). however, she ends with the possibility of hearing ‘something other than the law of sociology shows itself’ (590). feminist legal research should be concerned with this ‘other’, with the possibilities of a world that remains, with other kinds of subjectivity. if the research path tentatively suggested for feminism is one engaged with the other of legal positivism, what kind of politics could feminists engage in? in a short essay responding to a book by jean daniel (the era of ruptures 1979) foucault comments on change, identity, and the left. he notes that daniel takes a turn from the question the left has been asking for a long time, ‘we exist but who are we?’ daniel’s proposition is that ‘those who understand that it is necessary to wrest oneself from conservatism in order to be able to, at the very least, exist, and in the long term, not be completely dead, what must they be, or rather what must they do?’ (foucault 1997: 126). what is significant for feminist politics is the call for a critical distance and reflection. we might experience ‘a globalization of the economy’, ‘a globalization of political consciousness’ but not ‘a universalization of political consciousness’ (foucault 1997: 125). it is foucault’s recall of merleau-ponty that i find suggestive for a feminist politics: ‘never consent to be completely comfortable with your own certainties. … one must clearly feel that everything perceived is only evident when surrounded by a familiar and poorly known horizon, that each certitude is only sure because of the support offered by unexplored ground. the most fragile instant has roots. there is here a whole ethics of tireless evidence that does not exclude a rigorous economy of the true and the false; but is not reduced to it either’ (127). feminist scholars should continue to be concerned with women’s material circumstances – poverty, sexual violence, discrimination on account of race, sexual orientation and hiv status. but we should also do more than merely describing the social phenomena and accepting policy and reform as enough. questions related to the ‘ought’, an active interest in what remains after or behind sociological description linked to a politics and ethics that accept the limits of evidence and embrace discomfort might disclose previous paths and directions again for present and future research and politics. references constable, marianne. 1994. ‘genealogy and jurisprudence: nietzsche, nihilism, and the social scientification of law’, law & social inquiry 19: 551-590. daniel, jean. 1979. the era of ruptures. paris: grasset. foucault, michel. 1997. ‘for an ethics of discomfort’, in the politics of truth, ed. sylvère lotringer and lysa hochroth. new york: semiotext(e). nietzsche, friedrich. 1889. twilight of the idols. * professor, faculty of law, university of pretoria, south africa. �hyperlink "mailto:karin.vanmarle@up.ac.za"�karin.vanmarle@up.ac.za�. __________________________________________________________________________________ 2 __________________________________________________________________________________ 1 ‘asking for the moon’ a ‘musing’ on cornell’s beyond accommodation karin van marle ‘asking for the moon’ __________________________________________________________________________________ feminists@law vol 1, no 1 (2011) __________________________________________________________________________________ ‘asking for the moon’ a ‘musing’ on cornell’s beyond accommodation: ethical feminism, deconstruction and the law. karin van marle* the first writing of drucilla cornell that i ever read and have reread many times thereafter was her 1990 cornell law review publication titled ‘the doubly-prized world: myth, allegory and the feminine.’ beyond accommodation, published in 1991, can either be regarded as an elaboration of the ideas and thoughts raised in the 1990 article, or the latter could be regarded as a shortened version of the book. be that as it may, cornell, since the late eighties/early nineties, has been putting forward a multi-layered and complex feminist philosophy that no one can nor should attempt to summarise and from which no one should even attempt to take out the main themes or highlights. i can merely mention three notions put forward by cornell in the book that not only influenced my engagement with feminist theory but also changed my understanding of law in a deep and profound manner. firstly, the affirmation of sexual difference without relying on any given understanding or description of ‘woman’; secondly, the insistence on the deconstructability of the law; and thirdly, her explicit focus on the ‘heart.’ these three notions all support what for me continues to be cornell’s greatest contribution her consistent and infallible use of fable, myth, and the imagination that could push feminists, as she has it, following derrida, to even ‘ask[] for the moon’ (cornell 1991: 205). ‘the story of sexual difference is continually affirmed’ (2) cornell’s affirmation of sexual difference without reverting to any given description of what ‘woman’ is or supposed to be remains one of the most important contributions to feminist thought. the well known and trite debates on sameness/difference, or whether we should focus on difference as an issue of dominance, relationality or care were left behind by cornell’s ‘mamafesta.’ joining postcolonial and critical race feminists, cornell underscores the importance of race, class and ethnicity for women’s freedom and justice. but her careful play with these aspects prevented any form of rigid identity politics. similarly important is that she manages to take the material suffering of women as an extremely serious matter while not limiting women to any given presentation. as cornell states: writing the mamafesta, as i rewrote it here, is a fable for the elucidation of her-story such that feminine “reality” can be written. in the fable as i have rewritten it, the opposition between the literal and the textual is undermined. undermined, but not obliterated. the material suffering of women is not being denied in the name of a process of writing that continually transforms the representation of the feminine as if the rewriting itself could put an end to patriarchy. instead, the fable emphasizes the deconstruction of a reality that stands in as the unshakable, literal truth, so that the more that has yet to be written from the side of the feminine is not shut out as non-existent. no woman can claim that hers is the ultimate reality excluding all others, based on a concept of gender identity or on the uncovering of the essence of woman. thus, the writing of the mamafesta does not attempt to resolve the riddle of femininity once and for all, by locating women’s specificity in a pre-given nature of sexual difference. (2) ‘deconstruction points us beyond legal reform to justice’ (111) cornell’s refusal to accept any given description of what woman is or what women’s subordination entails has significant implications for law and legal reform. the “subject” is never just the hostage of its surroundings, because these surroundings cannot be consolidated into an unshakable reality that defines us and by so doing necessarily limits possibility to the evolution of what already “is.” (107) the reliance on differance as continuously subverting the claim that ‘this is all there is’ and disclosing the ‘trace of otherness’ that always remains, exposes the limits of any attempt of legal reform to legitimately respond to women’s subordination (108-109). following lyotard, cornell explains how any given description of the real (‘the tyranny of the real’ (109)) will exclude some from the system and deny some voices to be heard. feminists in their quest for justice must heed this. cornell follows lyotard, who instead of defining justice, defines injustice, because any attempt to describe justice will amount to ‘confining resistance within itself’ (110). according to cornell, deconstruction can have an important bearing on feminist jurisprudence because it illustrates how, by reinterpretation, the law could be challenged and transformed. however, these possible challenges and transformations should not be confused with justice. to be just to justice, we must not conflate justice with any given context, even the context that ended a particular injustice for women and the silence surrounding a claim unspeakable within a particular tradition. (112) ‘hearts starve as well as bodies’ (xv) from her very first writings cornell has been firm about the notion that feminism should be about ‘changing woman’s place in the world’ (xv). ‘but’ as she rightly asks ‘what does changing the world entail?’ (xv). she notes that it most definitely entails change in women’s material reality, about how goods and resources are redistributed. feminism, in particular second wave feminists, have focused on the importance of women’s bodies. however, cornell underscores that ‘hearts starve as well as bodies’ (xv). in an era in which women’s rights, socio-legal and specifically empirical approaches are in full force, women are mainstreamed through international, regional and local treaties and conventions, and are counted and measured, cornell’s claim for a feminism inspired by idealism what she names ethical feminism is of great importance. psychoanalytic theory is also crucial for ethical feminism: ‘by centering attention on the form of the free person, we are confronted with what psychoanalytic theory has called psychic laws, the law of how human beings are enculturated’ (xvi). however, cornell’s engagement with lacan is not straightforward. although she follows his insights to a certain extent she departs from his claim that the feminine is ultimately unrepresentable. the representation of woman can take many forms, and of course we should be cautious not to attempt to capture or lock ‘woman’ to any given description. however, through myth, fable and allegory we could continue to seek to affirm feminine sexual difference without reverting to old stereotypes: the affirmation of the feminine may be impossible as other than the reversion to the old stereotypes. undecidability cannot be wiped out in an appeal to knowledge if there is no ontological given to the feminine we can appeal to as our truth. … but the possibility that we might be approaching a new choreography of sexual difference with every new step we take can also not be wiped out. (205) i have been relying on cornell since the beginning of my academic career. in 1994 i began research for my llm dissertation on the possibility of legal transformation with specific reference to how pornography was treated in a then very ‘new’ south africa. cornell’s ethical feminism, the nuanced engagement with women’s sexual difference and the problems of representation steered me to formulating an approach to the regulation of pornography in a society with many newly founded freedoms. in my lld thesis i again drew on cornell in order to argue for an ethical interpretation of equality as a response to the developing equality jurisprudence that was heavily based on canadian substantive equality approaches. these early research projects provided me with what njabulo ndebele (2003: 82) calls ‘an angle of approach’ for future endeavours focused on notions of transformation, critique and the becoming of a post-apartheid jurisprudence. for me the greatest contribution of cornell as ethical feminist is that, in her problematisation of traditional boundaries, she discloses alternative approaches for others to follow in feminism, law and life. being a feminist researcher in post-apartheid south africa, cornell’s work has been and will remain inspirational for a long time to come. ‘such a new choreography may be asking for the moon, but through asking for the moon, we speak and write’ (205). references cornell, drucilla (1990) ‘the doubly-prized world: myth, allegory and the feminine’, cornell law review 75: 644-699. cornell, drucilla (1991) beyond accommodation: ethical feminism, deconstruction and the law, new york: routledge. ndebele, njabulo (2003) the cry of winnie mandela, banbury: ayebia clarke publishing. * professor, faculty of law, university of pretoria, south africa. �hyperlink "mailto:karin.vanmarle@up.ac.za"�karin.vanmarle@up.ac.za�. __________________________________________________________________________________ 2 __________________________________________________________________________________ 1 vasuki nesiah priorities of feminist legal research _____________________________________________________________________________________ feminists@law vol 1, no 1 (2011) _____________________________________________________________________________________ priorities of feminist legal research: a sketch, a draft agenda, a hint of an outline… vasuki nesiah* two decades back feminist scholarship addressing international law still occupied outsider status in many arenas.  early interventions in the field outlined the priorities of feminist research in international law as the mainstreaming and consolidation of feminist insights in other terrains into international legal analysis, inclusion of feminist perspectives within mainstream legal practice, and the expansion of feminist analysis of public/private onto the international law stage.    today i would argue that our priority should be change not consolidation, challenge not inclusion, re-examination not expansion. the agenda laid out by those early interventions has been significantly advanced in the intervening decades. that very success has been partly responsible for the changed landscape of international law; today we have a new context characterized by unexpected complications and considerations that warrant a revisiting of our priorities. the arena relating to the legal regime operative in times of war presents a case in point. in the mid-nineties rhonda copelon and other pioneers in this field lamented the historic marginalization of women’s experience of armed conflict, and the concomitant neglect of legal arguments that could press accountability for human rights violations against women in such contexts. much feminist research in the decade that followed was directed at advancing and strengthening legal arguments that would feed into war crimes tribunals in the hague, arusha and freetown. today the fruits of those efforts are reflected in the international criminal court, in a series of security council resolutions focusing on women victims of war and a dramatic increase in institutional and material resources devoted to women’s experience of human rights abuse in the context of conflict. the advances of feminist agendas regarding the recognition of women in these varied domains is indicative of how dominant streams of feminism have succeeded in authorizing and delimiting what counts as legal and policy ‘knowledge’ about women in war. these achievements have been accompanied, and perhaps enabled, by their own blind spots.  the contingent parameters of successful legal strategy in a particular historical context have too readily been generalized as the parameters of intellectual inquiry and our political agenda as such.  for instance, feminist interventions engaging with contexts of war twenty years ago may have been correct to emphasizing women’s victimization in such contexts because there was little recognition of the gendered impact of war; yet in those intervening years that contingent strategy has been naturalized as the feminist approach to war as such. thus today feminist interventions have been disproportionately invested in building legal arguments that define and advance the gendered victim subject.  thus the strategy has focused on working towards an international legal and policy framework for war as one that sees women primarily as victims, as one where crimes such as rape get incorporated into legal definitions and findings of “apex” crimes such as genocide, as one where the sanction for those crimes gets equated with crimes such as murder, and recognition of this victimization becomes the ground from which women speak and the gendered impact of war can be recognized. too often this strategy insulates itself from critique and contestation because it sees feminism itself as also victimized and always on the defensive.   this stance has crippled legal strategy but it has also stunted our intellectual agendas.  while there may have been and may continue to be specific historical contexts where we decide that a focus on injury and the gendered victim subject may be the best legal strategy, this is not an intellectual framework that should be generalized a priori as setting the parameters for feminist research agendas in diverse contexts of war.  rather we should seek to open up the question of subjectivity by interrogating those received parameters even if it may have ambivalent, or even adverse, consequences for legal strategy. if feminist legal research is to rediscover an intellectually and politically radical space it may need to interrogate its own claims.  this may involve less intimacy with the halls of power and more political risk.  similarly, if feminist legal research agendas are going to be intellectually robust and subversive of received truth claims, we may need to unpack the universalization of analytical prisms such as the public/private distinction and examine the conditions of their production.   moreover, if feminism was going to be about a politically relevant and engaged analytics, it may not always begin with gender as the starting point of analysis; critical feminist analysis will be precisely that which can eschew such pieties in understanding and challenge the enabling conditions and distributive implications of international law in ways that are intellectually versatile and politically relevant. finally, and relatedly, while many other areas of feminist research have unpacked, pluralized and troubled the category of ‘woman’, the category is deployed as self-evident and strikingly untroubled in the domain of feminist research on international law. if we want to reinvigorate feminism’s critical traditions we need to risk the heretical and contest closure on this most fundamental of questions. this is just the beginning of an effort to sketch some ideas about how we may define a vital, critical feminist legal research agenda.   i begin by examining where we already find ourselves – where feminist agendas have become consolidated, insulated from challenge and empowered for expansion.  thus my argument is that rather than defining feminist research agendas by celebrating and fortifying particular “achievements”, historicizing those achievements and their conditions of possibility should itself be the agenda.  the agendas of twenty years ago cannot be the agenda of today; different historical circumstances call for different approaches.  in other words, creative intellectual renewal and political relevance both demand that we develop a critical political imagination that constantly has its own assumptions in its crosshairs. * associate professor of practice, school of individualized study, nyu gallatin, new york, usa. �hyperlink "mailto:vn10@nyu.edu"�vn10@nyu.edu�. � the most famous intervention in this regard is the path breaking “feminist approaches to international law” by hilary charlesworth, christine chinkin and shelley wright that was published in the american journal of international law, vol. 85, no. 4 (1991), pp. 613-645.   alongside this piece there were a series of interventions in the early 1990s that broke new ground in their discussion of feminism in an international law terrain and defined a broad and diverse field of research.  see also karen engle’s “female subjects of public international law” in 26 new england law review 1509 (1992), and ratna kapur and brenda cossman’s “trespass, impasse, collaboration” in 2 journal for human justice 99 (1991). by the mid-90s, in a turn led in different arenas by rhonda copelon and catharine mackinnon, we also saw a proliferation of articles focused particularly on women and international law pertaining to war. for an account of these developments in international criminal law, see janet halley, “rape at rome: feminist interventions in the criminalization of sex related violence in positive international criminal law” in 30 michigan journal of international law 1 (2008). � rhonda copelon, “women and war crimes,” 69 st. john's law review 61 (1995). � the appointment of catharine mackinnon as special adviser on gender crimes to the office of the prosecutor in the international criminal court is perhaps the most striking illustration of this remarkable convergence of research and political and legal strategy.  in 1994 mackinnon wrote her enormously influential “rape, genocide, and women’s human rights” in 17 harvard women’s law journal 5 (1994). in 2008 she was appointed special adviser on gender crimes. see halley, above n.1. � some have described feminism’s incorporation into the corridors of international law and policy at the highest levels, as indicative of feminism’s own will to power, of the consolidation of “governance feminism”.  on governance feminism, see halley et. al. in “from the international to the local in feminist legal responses to rape, prostitution/sex work and sex trafficking,” 29 harvard journal of law and gender 335 (2006). � for instance, an approach that ‘applies’ the public/private distinction to contest statist approaches and attend to “women’s rights as human rights” posits the public/private distinction as a framework that constrains our intellectual inquiry.  thus we entrench an analytic practice that is reflexive rather than reflective.  instead, investigating multiple genealogies of the public/private in diverse and specific contexts can open us to the fact that law and statehood can be structured in ways that are plural, fluid and unexpected. � for instance, if we are looking at the distributive dynamics of international trade, we cannot begin with an a priori assumption that gender is the starting point to challenging the legal architecture of the international trade regime. _________________________________________________________________________________________________________ 2 _________________________________________________________________________________________________________ 1 dean spade demanding the unthinkable ______________________________________________________________________________ feminists@law vol 1, no 1 (2011) ______________________________________________________________________________ demanding the unthinkable dean spade* many feminists and others seeking to transform the world have written about science fiction, recognizing both how imaginary peoples and worlds are often based on and can often expose the categories and technologies of our own, and suggesting that the limits of the imaginable might be where we need to spend time if we seek transformative change. lately, i find myself reading science fiction, especially utopic and dystopic stories that depict transformations in us society, non-hierarchical governance structures, and alternatives to capitalism.  none of them are really great, and most leave me particularly unsatisfied with regard to race and ability analysis, but all of them touch on my desire to see political questions and proposals that haunt me depicted in detail.  how does unpleasant work get done when everyone is guaranteed sufficient food, clothing, and shelter regardless of work? what does the transition look like between a society that relies heavily on racialized-gendered imprisonment to a society without imprisonment? what do governance and negotiation look like when anti-hierarchical aliens are helping women from lesbian communes transform the world?  what dangers lurk in moments of crisis and transition, and what opportunities? how can people heal from centuries of trauma wrought by capitalism, colonialism, white supremacy and heteropatriarchy? when centralized infrastructure disappears, what local solutions emerge? reading octavia butler, l. timmel duchamp, ursula le guin, starhawk and others and especially recently re-watching the 1983 film ‘born in flames’ has given me moments of expansiveness on these and other questions that i need badly, and that i think feminist legal theory might need too. this feels particularly true right now.  in the context of neoliberalism, especially the legacy of the criminalization and destruction of social movements, the nonprofitization and philanthropic control of any work remotely related to social justice, and the consolidation of media, transformative critical politics have become especially unspeakable, unheard of and illegible.  the range of political possibility imaginable is so narrow and so constrained by neoliberal frames that the realm of impossibility is the only generative place to hang out.  anti-patriarchal political projects are continually being invited and seduced into the realm of possibility as new justifications for criminalization and empire.  rhetoric about the lives of women and queers is being employed to launch hate crimes legislation domestically and invading armies globally to build and sustain systems of racialized-gendered violence.  yet racist and homonormative projects operating under signs of “women’s” and “lgbt rights” proliferate because grant dollars, media coverage and professional accomplishment greet those positioned to bear such messages.  in this context, not only do we experience the alienation of living in what feels like the pages of octavia butler’s parable series or duchamp’s marq’ssan cycle, but we also recognize the need to take inspiration from science fiction to bring our critical engagements with co-constitutive categories of nation, gender, race, body, human, and population into new political dimensions.   the political demands of prison abolition and an end to immigration enforcement invite feminist legal theorists and other troublemakers to use our category-deconstructing superpowers to try imagine what is forbidden to be imagined by the constrained political horizons visible in neoliberalism.  i want feminist legal theorists to think all of our work through the lenses offered by these demands, which are destabilizing to racialized-gendered nationalisms and legal systems and which are producing resistance practices at the edges of possibility. conceptualizing these demands together requires us to see how technologies of policing and caging constantly invite us, even as we resist from one position, to justify our demand for freedom in the caging of others, especially through the symbolic registers of family, worker, and monster.  immigration politics in the us are riddled with rhetoric about family unity, hard work and independence (from social welfare), and arguments that non-criminalized immigrants should be given status.  the narrow place carved out for migration in this equation ties it to heteropatriarchal family structures and employment (both of which us immigration law already uses to determine access to legal immigration) and mobilizes the racialized-gendered “law and order” rhetoric that fuels the prison industrial complex that is devouring poor people and people of color.  meanwhile, many criminal punishment system reform projects rely on family unification and worker/“contribution to society” frames, and also distinctions like innocent/guilty and violent/non-violent that refine punishment systems and deepen justification for policing and caging.  these reform projects that fall short of abolition often do so in the shadow of the monster/predator figure that racialized-gendered specter that rationalizes caging above all else.  that figure is constructed today through the proliferation of scientific knowledges and practices producing diagnostic criteria and theories of brain chemistry and development that rationalize permanent psychiatric imprisonment.   the political demands of prison abolition and an end to immigration enforcement require us to untangle the interwoven norms, knowledges and practices that produce the policing and imprisonment of people through criminal punishment systems, immigration enforcement systems and medical/psychiatric systems. they require us to examine and dismantle the categories of family, nation, worker, individual, and monster that organize law and culture.  they require us to struggle to imagine ways of life that cannot be seen from where/when we are standing ways not organized through those categories. science fiction sometimes offers that window to a place where we contend with the dilemmas of systems of distribution and stateness that would be abolished if policing and caging were also abolished.  for feminist legal theory, those edges of imagination are urgently needed now, in these decidedly anti-revolutionary times, when resistance persists against significant odds. notes towards a reading list anna agathangelou, morgan bassichis & tamara spira, ‘intimate investments: homonormativity: global lockdown, and the seductions of empire’, 100 radical history review 120 (2007). lizzie borden, ‘born in flames’ (1983). lewis, bradley, ‘a mad fight: psychiatry and disability activism’, in lennard davis (ed.), the disability studies reader (2006). octavia butler, the parable of the sower and the parable of the talents (2000). eli clare, exile and pride (2010). gabriella coleman, ‘the politics of rationality: psychiatric survivors' challenge to psychiatry’ in beatriz da costa and kavita philip (eds), tactical biopolitics: art, activism and technoscience (2010). angela y. davis, abolition democracy: beyond prison, torture and empires (2005). l. timmel duchamp, marq’ssan cycle (2005-2010). roderick a. ferguson, aberrations in black: toward a queer of color critique (2003). deepa fernandes, ‘the immigration industrial complex’ in targeted: homeland security and the business of immigration (2007). michel foucault, society must be defended: lectures at college de france,1975-1976 (2003). peter gelderloos, how nonviolence protects the state (2007). generationfive, toward transformative justice, available at http://www.generationfive.org/tj.php. dan georgakas & marvin surkin, detroit: i do mind dying: a study in urban revolution (1998). ruth wilson gilmore, golden gulag: prisons, surplus, crisis and opposition in globalizing california (2007). ursula k. le guin, the dispossessed, (1994). keeling, kara. ‘looking for m: queer temporality, black political possibility, and poetry from the future’ 15(4) glq: a journal of lesbian and gay studies 565 (2009). naomi klein, the shock doctrine: the rise of disaster capitalism (2008). iris morales, ‘palante! siempre palante! the young lords’ (1996). mae m. ngai, impossible subjects: illegal aliens and the making of modern america (2005). jasbir puar, terrorist assemblages: homonationalism in queer times (2007). chandan reddy, ‘time for rights? loving, gay marriage, and the limits of legal justice’ 76 fordham law review 2849 (2008). dylan rodríguez, ‘the political logic of the non-profit industrial complex’ in incite! (ed.), the revolution will not be funded (2007). starhawk, the fifth sacred thing (1994). eric tang, ‘non-profits and the autonomous grassroots’ in incite! (ed.), the revolution will not be funded (2007). laura van dernoot lipsky & connie burk, trauma stewardship: an everyday guide to caring for self while caring for others (2009). * assistant professor of law, seattle university school of law, usa. �hyperlink "mailto:spaded@seattleu.edu"�spaded@seattleu.edu�. _________________________________________________________________________________________________ 6 _________________________________________________________________________________________________ 1 eva-maria svensson future research issues for feminist legal scholarship __________________________________________________________________________________ feminists@law vol 1, no 1 (2011) __________________________________________________________________________________ if wishes came true – future research issues for feminist legal scholarship and feminists@law eva-maria svensson* still young, but experienced and well-skilled joanne conaghan presents an extensive body of feminist legal scholarship in the four-volume edited collection feminist legal studies (2009). according to conaghan the field of knowledge “is of fairly recent vintage” (conaghan 2009 i, 1). the volumes cover 30 years’ research on key interventions and developments in feminist legal scholarship (fls), feminist legal scholars’ engagement with liberalism as well as with legal method and reasoning, and contemporary challenges and contestations within fls. my main impression of the discipline, as presented in the four volumes, is the predominance of ‘anglo(inter?)national’ texts. interestingly, the fourth volume, with a focus on contemporary changes and contestations, is the most international. in this last volume, there are also some texts focusing on men. when thinking of urgent future research issues for feminist legal studies, i started with the image of the discipline explicitly and implicitly presented in this publication. which issues are lacking in fls or, which issues ought to be focused upon? three wishes fls is supposed to be a discipline with a contextual epistemology (theory and practice are interrelated), with a political agenda (to make life better for women), and with an emancipatory interest in knowledge (i.e. a critical and self-reflective approach to knowledge). out of these expectations of the discipline, my three wishes for future research in fls and in feminists@law are: 1. more (true) international, transnational and cross-national studies or non-national studies. 2. more reflections on political and societal changes such as (a) individualisation, (b) the disempowering of the collective democratic (?) political system in favour of civil society and (c) the increasing commodification of human beings. 3. more (re)considering of the theoretical and empirical meanings and impacts of notions like not only ‘feminist’, ‘gender’, ‘gender relations’, ‘woman’, but also ‘man’ and ‘masculinity’. from anglo-national to international as a discipline or as a perspective in law, feminist legal studies has developed in different parts of the world, and in different jurisdictions. conaghan mentions us, canada, uk, australia and norway (conaghan 2009 i, 1). except for norway, all of the mentioned jurisdictions are situated in english-speaking countries. if this is correct, it is doubtful to talk of feminist legal scholarship as an international discipline; it is rather an ‘english-speaking countries’ discipline. but what is more, when scholars from other non–english-speaking countries publish their works, they are primarily performed in english. what are the consequences of different languages? does the language as such influence our perception of the world? what are the consequences of different jurisdictions? do the differences affect the notions, the formulation of theories and methods and the use and relevance of them? the explicit assumption of a connection between theory and practice in fls, ought to make us self-reflective of the contextuality of the discipline’s own theories and methods. what are the consequences of different political and societal contexts? for example, the distinction between private and public is understood in different ways in different countries. the welfare state model is not the same everywhere and gender equality as a political goal and a legal principle is understood, expressed and implemented differently in different contexts. i would like to see more reflections on these differences and what impacts they have on the discipline and its notions, theories and methods. the present overrepresentation of studies from the english-speaking world should be challenged from other parts of the world. the relation between the centre and the periphery should be switched in favour of the (until now) periphery. the meaning of and consequences of a contextual epistemology should be taken seriously. political and societal changes there are two political and societal changes that i understand as important, the individualisation and the disempowering of the collective democratic (?) political system in favour of civil society, as well as the increasing commodification of human beings. individualisation is an ongoing process that has impacts in different ways. in a nordic context, there has been a shift from redistribution and collective solutions to individual and private solutions when it comes to social security and health care, but also education and transportation. the increased discourse of individual human rights is, at least in a nordic context, not always positive. if at the same time the tax funded welfare system is decreasing, the result can be for the worse. pylkkänen has studied this shift in her book trapped in equality (2009). what is more, the political system, supposed to be democratic, loses force in favour of the market and private solutions in civil society. the need for charity is increasing when the welfare state is dismantled. what are the consequences of these changes? another urgent issue for me is the increasing commodification of human beings. this process can be seen, for example, in the discourse of sex-work, surrogacy, cosmetic surgery and commercialism of the human being. to buy and sell a human body, or parts of it, is becoming normalized. what are the consequences of this commodification of the human being and what alternative are there? how can the commodification be challenged from standpoints other than religious or conservative moralism? theoretical and empirical meanings and impacts of notions i wish there would be more (re)considering of the theoretical and empirical meanings and impacts of notions like not only ‘feminist’, ‘gender’, ‘gender relations’, ‘woman’, but also ‘man’ and ‘masculinity’. the feminism in fls can be understood in several ways. feminist as a label for research can be understood as a critical perspective, or in the words of habermas: the interest of knowledge is emancipatory. in this respect, feminists do not have a necessary connection to women. the focus is on the mainstream or the traditional dogmas in a discipline and the purpose of feminist scholarship is to be critical. but feminist also refers to women and a focus on women’s lives. it has a ‘political’ dimension, meaning that one purpose of feminist knowledge is actually to make differences in society. a lot of efforts have been made to evaluate the consequences of legal implications for women and to propose law reforms to make the situation better for women. in the nordic countries, especially in sweden, the focus has not been on women to the same extent as internationally but on gender equality, or the relationship between women and men. to improve the situation for women, it is necessary to include men in the analysis. and what is more, some problems with consequences for women may be better dealt with if the focus is primarily on men. this is the case when it comes to the purchase of sex or care work for instance. it can often be said that focusing on women is to focus on the symptom, while focusing on men is to focus on the problem. one problem today, recently raised in sweden, is the narrow ideology of manhood. young boys and men are worse off in school. one often heard explanation (individual) is that the school is feminized and this has bad consequences for boys. another explanation, according to a (structural) gender system theory, is that masculinity is defined as ‘what is not feminine’. today, it is feminine to do well in school and therefore, a boy who wants to become a real man, has to separate from this. manhood often indicates the use of violence and lack of empathy. what are the consequences of this image of manhood? does the image of the man have impacts in the legal system? there are some studies of the construction of the (male) perpetrator in sexual crimes, and they show that the expectations on men are different from the expectations on women. there are a few studies in fls about men and masculinity but not enough. i would like to see more of this. as a contributor to the first edition of feminists@law, i intend to encourage and invite feminist legal scholars, especially from the nordic countries, to publish in this new open access journal. i hope to see more discussion and debate between scholars from all over the world, on the topics i have mentioned, or others. references conaghan, joanne (ed.), feminist legal studies, volume i – iv, routledge 2009. pylkkänen, anu, trapped in equality: women as legal persons in the modernisation of finnish law, finnish literature society 2009. * professor, department of law, school of business, economics and law, university of gothenburg, sweden, and law faculty, university of tromsø, norway. � hyperlink "mailto:eva-maria.svensson@law.gu.se" �eva-maria.svensson@law.gu.se�. � everyone familiar with folk tales knows that you always have three wishes, no less and no more. __________________________________________________________________________________ 2 __________________________________________________________________________________ 1 feminism, foucault, agamben, and the new universal subject of law allaine cerwonka and anna loutfi biopolitics and the female reproductive body ______________________________________________________________________________ feminists@law vol 1, no 1 (2011) ______________________________________________________________________________ biopolitics and the female reproductive body as the new subject of law allaine cerwonka* and anna loutfi** to say that the histories and conceptual frameworks of michel foucault have, since the late 1980s, heavily influenced feminist theory is an understatement. on the other hand, one might add that the influence of foucault on feminist jurisprudence and feminist legal theory has been much less pronounced, in spite of the obvious value of foucault’s work for critical legal theory more generally. one probable reason for this is the uncanny resemblance of foucault’s ‘sexless subject’ to the abstract sexless subject of law which feminist legal theory has been tirelessly critiquing since its inception (giving rise to feminist works with titles such as: “unspeakable subjects”, “the hidden gender of law”, “sexing the subject of law”, and so on). and yet, when a ‘new foucault’ – the italian political philosopher giorgio agamben – hit the critical legal scene in the late nineties, one might argue that a new kind of feminist legal theory was quickly born; one that was receptive and subtly attentive to the work of both foucault and agamben. and this in spite of the fact that agamben’s legal subjects are, like foucault’s, utterly sexless. what might explain this phenomenon? here, we suggest that agamben’s work on law and citizenship, in focusing exclusively on foucault’s concept of biopolitics, and therefore on questions of the regulation of populations rather than of individual bodies, represents a point of departure that is particularly ‘user friendly’ for feminist legal theory. we would also argue that feminist legal scholars need not be disturbed by agamben’s apparent sex blindness – as earlier scholars were by the sex blindness of foucault. while it is not possible, due to limits of space, to do justice to the full impact agamben’s work has had on foucauldian scholarship, it seems important to mention here a particular dimension of his theoretical manner of working, which in some sense constitutes a thread running through all his works on political and legal theory, namely the idea of a “zone of indistinction”: the collapse of ‘inside’ and ‘outside’ into one another; the impossibility of speaking of social exclusion without at the same time speaking of an inclusion; one is included in order to be excluded. the zone of indistinction is an immediate effect of a regime of justice and rights in which all legal categories are derived from a politics founded in biology. such a regime, which foucault named the biopolitical state, is primarily concerned with the questions of whether a being is alive or dead; whether it lives or dies; how long it can, or should live; in what manner it will die; how healthy it is in its state of life, and so on. the reduction of all living beings to biological organisms under biopolitical regimes (which, for foucault and aagmben, refers to all the populations of modern states – with the late eighteenth century as the key moment of historical transformation) accompanies the collapse of “traditional political distinctions … such as those between right and left, liberalism and totalitarianism, private and public”. that is the meaning of the zone of indistinction: the impossibility of distinguishing the supposedly legally protected citizen from politically vulnerable “bare life”. bare life is the term agamben uses to denote life that may be killed or preserved arbitrarily, developed from agamben’s revisionist work on hannah arendt’s discussion of the political category of the refugee in the origins of totalitarianism. it is not difficult to imagine ways in which agamben’s framework, which does not recognize the legal categories of public and private, might speak to feminist legal perspectives, which dismantled these artificial distinctions of liberal political theory years ago. but it is not the collapsed binaries per se which have attracted feminist scholars to his work, but rather his particular collapse of the political category of the citizen into the biological category of “bare life”. this category has invited feminist theorists to ponder the gender implications of a political theory of law that sees politics as the reduction of all citizens to their ‘bare’ biological functions (what foucault referred to as “the bestialization of man” ). in a recent edited collection of essays entitled the agamben effect, penelope deutscher asks the critical question: “is it possible to open a debate with giorgio agamben concerning the role of women’s bodies in the politicization of life? what different inflections of life and of politicized life would result from an intermittent insertion ‘born of women’s bodies’?” as one might expect, deutscher’s engagement with agamben is in part intended as a corrective to a male theory that is blatantly indifferent to gender difference, and indeed other bodily markers of difference. she writes: “women’s bodies are impressively absent from agamben’s writing, as are reproductive bodies”. elsewhere, she points out that when agamben speaks of “life”, he means that which has been first identified as human “and then stripped of that status or subjected to a threshold state: the overcomatose person, the immigrant, the refugee, the internee, the enemy combatant, the muselmann”. this makes it hard to insert into the theory forms of life that have never been accorded the status of the human in the first instance: the fetus, for example, and indeed the reproductive life of woman herself as womb-owning bearer of the fetus. life, in an agambenesque world, according to deutscher, is life dissociated entirely from women’s reproductivity. yet, it is perhaps this very dissociation of woman from the theory that strikes deutscher as the key to its potential for feminist theory; an “intriguing potential”, she writes, “to operate as a lens to rethink the terms life, bare life, threshold, and biopolitics”. if we were to intervene in order to reformulate deutscher’s hypothesis regarding the “potential” in agamben’s work for feminist theory, it would be as follows: woman is absent from the theory insofar as the body of ‘woman’ (by which we mean ‘reproductive woman’) is already assumed as a key political referent. the theory, as it stands, sex blind as it is, is committed to an analysis of bodies in relation to the legal thresholds between “life and death, animate and inanimate, human and inhuman, nature and culture”. it therefore begs for an analysis of human bodies in relation to reproduction, and as mechanisms for reproduction. ‘human life’, in such an analysis, and with it ‘human rights’ and the ethical foundations of citizenship in any given biopolitical state, must inevitably turn to a set of political and legislative questions around reproduction, reproductive rights (especially abortion), sexuality, and the family. in short, biopolitical theory cannot avoid making the female body central to its analysis of human life as an undefined essence both protected and unprotected by law. against this (our) argument, deutscher might justifiably reply, as indeed she makes clear in her essay, that agamben’s analysis, while enabling a legal analysis that occupies a “ghostly proximity” to feminist analysis, nevertheless contains a ‘non accidental’ sex blindness, which fails in its feminism, just as sex blind legal and political theory has always failed in its feminism. consider, then, the groundbreaking legal history by ruth miller, entitled the limits of bodily integrity. miller proceeds from a theoretical insight informed directly by foucault and agamben: contemporary jurisprudence has not been a simple by-product of, but has been aimed precisely at constructing, [a] biologically/sexually passive, politically active sovereign subject … defined first and foremost as a biological (sexual and reproductive) criminal in need of regulation, this citizen can operate only in (and as) biopolitical space. the bracketed “(and as)” is crucial here. what we are to understand from miller’s analysis is that contemporary jurisprudence in modern times has been dedicated to the legal construction of a subject that not only occupies political space as a biological, reproductive animal, but which is biopolitical space – which for miller means the womb. the womb, and by logical extension, the womb-owner is, in miller’s analysis, the paradigmatic citizen (or what she calls “the neutral citizen”) of the modern biopolitical state. she writes, and we quote this highly important passage at length by way of conclusion, for the most part a legal fantasy, [the] neutral citizen is rational and politically inviolate, operates faultlessly in the public sphere, and exercises right or performs duties under the aegis of a classical-juridical social contract. as a matter of course this citizen is also male. … [t]hese interpretations of the political neutral … hold only if we assume that classical juridical theory has indeed served as a model for sovereign relations over the past 200 years – if we assume that modern nation states have in fact been operating cording to a liberal social contract. if, however, we assume that the predominant model of sovereignty has been biopolitical, that the fundamental sovereign right has been the right to make live and let die – if we place sexual and reproductive legislation at the center of citizenship formation, and understand political activity as biological passivity – then we need to rethink this analysis … rather than understanding men as the norm and women as artificial facsimiles of men, it makes far more sense in a biopolitical framework to understand women as the norm and men as their copies. it is the womb that has become the predominant biopolitical space, it is women’s bodily borders that have been displaced onto national ones, [and] it is thus the citizen with the womb who has become he political neutral – and rather than grudgingly granting women the artificial phalluses assumed by liberal theory, one can in fact advance an argument that men instead have been granted the artificial wombs assumed by its biopolitical counterpart. earlier, we suggested that although agamben’s theory seems to neglect questions of sexual difference, sex blindness here might be immaterial from a feminist perspective, insofar as agamben’s biopolitical conceptual framework, which works with a particular biological conception of legal citizenship, inevitably and logically proceeds to the reproductive body of woman as a key political referent (by virtue of the dichotomies it interrogates and collapses, such as life/death, animate/inanimate, human/inhuman, nature/culture, etc). in miller, this point is made using a biopolitical framework derived from foucault and agamben to argue that the modern biopolitical state automatically places biological reproduction at the center of what it means to be a political citizen. her thesis uses agamben’s theoretical framework to illustrate the paradigmatic status of the female citizen (as womb owner), rather than correcting his framework for its lack of attention to bodily markers of sexual difference. in fact, miller even goes as far as to critique feminist political theory for a kind of sex blindness; one which assumes that the neutral citizen is male, thereby confusing liberal political fantasy with biopolitical reality. is it possible that an ‘agamben effect’ in critical legal theory is facilitating a new understanding of citizenship, according to which it is the female reproductive body which represents the universal (paradigmatic) subject of law? as such, feminist legal theory might usefully serve as a tool for analysing the “relentless inclusion” of women in the biopolitical state. this also would suggest that feminist legal theory is becoming paradigmatic of all critical legal theory in just the same the way as the female reproductive subject has become the paradigmatic legal subject within the biopolitical state. * professor, department of gender studies, central european university, hungary. � hyperlink "mailto:cerwonkaa@ceu.hu" �cerwonkaa@ceu.hu�. ** assistant professor, department of gender studies, central european university, hungary. � hyperlink "mailto:loutfia@ceu.hu" �loutfia@ceu.hu�. � see for example vanessa e. munro, “legal feminism and foucault – a critique of the expulsion of law”, in journal of law and society, 28, 4 (december 2001): 546 – 67. � nicola lacey, unspeakable subjects: feminist essays in legal and social theory, hart publishing: oxford 1998. � regina graycar and jenny morgan, the hidden gender of law. sydney: federation press, 2nd ed. 2002. � ngaire naffine and rosemary j. owens (eds), sexing the subject of law. lbc information services: sydney 1997. � giorgio agamben, homo sacer. sovereign power and bare life, daniel heller-roazen, trans, stanford university press: stanford, california 1998, 122. � see hanah arendt, “the decline of the nation state and the rights of man”, in the origins of totalitarianism, harvest books: new york 1976, 267-304. � see frances e. olsen’s “the myth of state intervention in the family” and other essays included in the seminal collection, feminist legal theory, frances e. olsen, ed, dartmouth: aldershot 1995. � michel foucault, dits et écrits, cited in agamben, homo sacer, 3. � special edition of the south atlantic quarterly, 107 (1) 2008, alison ross, ed. � penelope deutscher, “the inversion of exceptionality: foucault, agamben, and ‘reproductive rights”, in the agamben effect, above, 55-70; here 55. � deutscher, “the inversion of exceptionality”, 59. � an overcomatose person is one whose vital functions have effectively ceased but for the intervention of life-support technologies “[t]he survival of the overcomatose person automatically ended as soon as the life-support system was interrupted”. agamben, homo sacer, 160-161. the status of the overcomatose person is politicized by agamben when he asks: “what was the zone of life beyond coma? who or what is the overcomatose person?” (161). � deutscher, “the inversion of exceptionality”, 58. � deutscher, “the inversion of exceptionality”, 58-59. � agamben, cited in deutscher, “the inversion of exceptionality”, 59. � deutscher, “the inversion of exceptionality”, 59. � ruth miller, the limits of bodily integrity. abortion, adultery, and rape legislation in comparative perspective, ashgate: aldershot 2007. � miller, the limits of bodily integrity, 128. � miller, the limits of bodily integrity, 149. � cf. miller, the limits of bodily integrity, 13. ________________________________________________________________________ 4 ________________________________________________________________________ 1 beyond accommodation toni a.m. johnson beyond accommodation ___________________________________________________________________________ feminists@law vol 1, no 1 (2011) ___________________________________________________________________________ beyond accommodation: the legacy of feminist critique and the search for justice toni a.m. johnson* in this short reflection on drucilla cornell’s work, i focus on the journey that her search for both a symbolic and substantive form of justice has taken and the influence that her particular conception of justice has had on my own work. beginning with her analysis in beyond accommodation (1991) and its theoretical debt to postmodernism, i indicate the legacy that this postmodern reliance has in relation to her later works, the imaginary domain (1995) and at the heart of freedom (1998). these later works, flagged as a theoretical departure from the postmodern critique that informed beyond accommodation, chart cornell’s move towards liberalism. this brief analysis of her journey seeks to highlight three things. firstly, that the insights of deconstruction are still prevalent in these later, more liberally-informed analyses. secondly, cornell’s shift towards liberalism nevertheless pursues similar questions, concerns and conversations to those posed in her earlier writing. thirdly, in taking those conversations in new directions, cornell has created a legacy of analysis that traverses methodological and theoretical boundaries. i claim it is cornell’s attempts to rethink the possibilities of justice that inspire her to engage with multiple theoretical and methodological traditions in order to rethink legal futures; it is these legal futures which bear purchase for my own engagement with her work, chiefly her concept of the ‘imaginary domain’. cornell as a ‘thinker of the future’ cornell’s explicit reliance on, and productive relationship with, derrida’s notion of différance and levinas’s ethical responsibility to the other in beyond accommodation has contributed to her unique form of postmodern feminist engagement. in beyond accommodation these theoretical foundations were put to use via critiques of certain strands of feminist analyses of gender equality, namely the work of catharine mackinnon, robin west and to a more muted degree julia kristeva and luce irigaray. cornell’s concern lay with the essentialist nature of these critiques and the effect that such essentialism had in its exclusivity and oppression of other actors. cornell’s analysis also extended to a broader critique of law and justice, thinking beyond the possibilities of the current system and delving into the place of myth and metaphor in the reinscription, rewriting and re-evaluation of the feminine. the political project that resonated and continues to resonate throughout cornell’s works is a search for an understanding of sexuate freedom and a corresponding conceptualisation of justice. throughout her works cornell posits justice as an ideal, as aspiration, as inherently elusive and always ‘to come’. the nature of cornell’s exploration ties these ‘possibilities’ of justice to questions of judging and judgment, to equality and the law, to the impact of lacanian psychoanalytic theory, to the place of women in the symbolic as compared to the imaginary and to the nature and composition of language. the critical response and critical reflections on language found in deconstruction have informed her political position and profoundly influenced her revisionary legal projects. for cornell language is far from neutral. it is influenced by and invested in multiple cultural and contextual referents. furthermore, language perpetuates new cycles of meaning, whereby meaning is neither static nor containable. as susan williams has written, ‘language is a social artifact, created, in part by the language we use to describe it…the interpretation that is an inevitable aspect of knowledge formation is deeply permeated by the cultural values and concepts encoded in the language through which that knowledge is expressed’. when this system of language production is viewed in the context of the legal system it becomes apparent that the linguistic system upon which law rests, a system that brings us influential definitions of ‘justice’, ‘liberty’, and ‘equality’, is deeply invested and entrenched in the linguistic precedents, histories and contexts via which meaning is given. thus, the possibility of the legal system providing a way of contesting ‘encoded’ language would seem, if not impossible, certainly challenging. in beyond accommodation, cornell takes up this challenge by addressing this linguistic bind. drawing on derrida, lacan and levinas, she explores the nature and language of law. she considers the way the legal system has both gained and continues to gain from and function via that empowered status through the oppression and exclusion of alterity/the other. cornell specifically addresses the position of women’s engagement with law and language, considering how it constructs women, and the social violence that is caused by the linguistic exclusivity of those constructions. cornell’s turn to deconstruction is an exploration of the way in which women are positioned within language and consequently within law. it is her intent to deconstruct the linguistic foundations of that order and acknowledge the necessity of exposing that order if any notion of justice or ethical response to the other is to bear legitimacy. cornell’s call to deconstruct gender, as part of a response to engaging with justice in beyond accommodation, the imaginary domain and at the heart of freedom, continues to provide key insights for a radical and transformatory politics. cornell notes ‘it is time to deconstruct the gendered opposition that pervades western reason, and so to reinvent the model of the legal subject’. cornell’s project in the imaginary domain and at the heart of freedom is an engaging attempt in how to manifest this new legal subject. the ‘imaginary domain’ is not just about addressing the position of women within the symbolic and within the imaginary. cornell’s project is much wider in terms of the way in which it seeks to touch the very foundations of gender for both men and women and their status as bearing legal personhood. cornell’s vision of an alternate legal system, as developed through the imaginary domain, feminism and deconstruction, provides a new way of thinking about personhood. she writes: our emancipation from state-imposed sexual choices and from their reinforcement by the basic institutions of society demands much greater social equality than we have now…when all persons have this right to the imaginary domain, states can no longer force women to play the role of primary caretaker in families, either directly by law or indirectly by the manipulation of social institutions. cornell’s development of the ‘imaginary domain’, deployed as a psychological space in which to reimagine personal understandings of gender and sexuality, and bearing the protection of law, was a revolutionary reimagining of legal personhood. within the conceptual framework of the ‘imaginary domain’, law is the social mechanism that protects the version of ‘private’ life envisaged by the individual. law does not determine the form of the imaginary domain, but protects the individual’s right to it and the conditions in which that private life can be lived out. furthermore, the conceptual framework of the imaginary domain has at its heart a concept of ‘freedom’ rather than formal equality. for cornell, the freedom to orient ourselves as individuals, to create our own visions and versions of ‘the good life’, is at the heart of the imaginary domain. subsequently, the freedom to become a person is dependent on the minimum conditions of individuation; namely, the conditions necessary in order to ‘transform ourselves into the individuated beings we think of as persons’. cornell’s use of ‘freedom’ rather than ‘equality’ is part of a critique of formal equality provisions that she claims are based on an aspiration to particular positions of privilege. cornell argues that these positions of privilege are normative and delimited constructs of identity that stifle the imaginary possibility of those who occupy them and those who wish to ascend to them. the imaginary domain gives vision to new ways of thinking about intimate life and intimate futures. for cornell, the imaginary domain: allows the sexual imago in and through which we come to represent ourselves … it is the psychic space in which we are allowed to freely imagine ourselves as sexuate beings, representing ourselves as persons who define our own moral perspectives in matters of sex, love and intergenerational friendship … it allows for imagined modes of relationships that help us give body to the ways we wish to set up our intimate relationships. the emphasis on the ability of individuals to shape their own lives outside of and unhindered by legislative constructs of appropriate familial formations encouraged me to take advantage of the theoretical premise of the imaginary domain in order to reconceptualise the position of lesbian and gay refugees and the contexts from which they had fled. relying on the freedom associated with the imaginary domain provided a theoretical site to rethink and reframe identity within the legal structure of the refugee convention. in lieu of taking a more radical position that would call for a practice of no border regulation and the rendering of law as moot, i instead relied on a new language of law. this reliance upon a new theory of legalism on which the right to legal personhood turned, a legal personhood that called for freedom rather than equality was intrinsically shaped by cornell’s ‘imaginary domain’. cornell’s version of intimate relationships has been significant for lgbt refugees, particularly in its engagement with and response to sexuality’s boundedness within nationalist politics and identity politics. her version of ‘freedom’ is able to assert itself within these controlling structures, toying with the language of rights and deploying alternative definitions deeply influenced by derridean understandings of the ‘slippage’ and ‘seepage’ inherent in language. cornell’s ‘right’ to ‘freedom’ is dependent upon a legal system that recognises the absolute agency and legal personhood of the individual, irrespective of their gender or sexuality. i argue that recognition of a specifically cornellian version of legal personhood leads to an inviolable responsibility on the part of the uk asylum court. social and state behaviours that preclude, discriminate against, or persecute non-normative intimate relationships/family forms, directly counter the ethos of the imaginary domain and would therefore establish eligibility for refugee status. additionally, the imaginary domain i claim, troubles the refugee convention’s understanding of identity as fixed. the ‘imaginary domain’ would allow for a more open conceptualisation of the grounds of the convention, providing an understanding of identity that does not function on the basis of immutability or the compartmentalization of identity traits, but on the indivisibility of gender, race, religion, class and how these facets are informed by context, by politics and by self-conceptualisation. thus, the imaginary domain and at the heart of freedom are, in part, an analysis of the way in which law and politics gives legal weight and legal validity to particular, essentialised identities and the psychic impact this has on understandings of the legitimacy, worth and self-worth of individuals and their relationships. law’s traditional denial of legitimacy to particular groups, namely women, people of colour, lesbians and gay men, or those in non-traditional relationships, can make individuals and others view their status and their relationships as inadequate or unworthy of respect. these processes of inclusion and exclusion on a macro scale have an intimate effect on the microcosm of intimate familial/individual practices. thus, the place of deconstruction and new formulations of law and legal personhood, such as that found in the imaginary domain, become incredibly important in linking practices of acknowledgement, both legal and social, with the practice of developing an anti-essentialist politics that does not seek to inscribe particular traits as bearing superior status or a status which would eclipse other facets of identity. cornell’s legal reformist project of the imaginary domain, which has at its heart a desire to give individuals the freedom to ‘create ourselves as sexed beings, as feeling and reasoning persons’, provides a useful tool to both engage with law whilst at the same time trying to deconstruct the language that gives law its power. the imaginary domain gives individuals the space to conceptualise their optimum vision of private life and legally protects the practice of living out that life. cornell’s feminism aligned with deconstruction’s breadth of openness to the other, to language, and the ethical, underpins cornell’s analysis and ensures that her work still sits at the cutting edge of a radical social transformatory philosophy. cornell’s analysis refrains from any definitive conceptualisations or limitations placed on identity, with such impositions and assumptions viewed as a violent assertion. these tropes inform beyond accommodation, the imaginary domain and at the heart of freedom and underpin cornell’s conception of law, which is informed by a feminist, ethical, postmodern analysis. cornell is a thinker of the future. her traversal of different theoretical traditions is an indication of the way in which she strives to develop new paths towards the interpretation of language, create new modes of understanding processes of inclusion and exclusion, and contest methods of categorisation. in searching for justice, cornell looks to the possibilities of the future, the unbridled nature of that future, refusing to settle for the present. bibliography m.j. clark, ‘deconstruction, feminism, and law: cornell and mackinnon on female subjectivity and resistance’ (2005) 12 duke journal of gender, law and policy 107. drucilla cornell, beyond accommodation: ethical feminism, deconstruction and the law (routledge, london 1991). drucilla cornell, the imaginary domain: abortion pornography and sexual harassment (routledge, london 1995). drucilla cornell, at the heart of freedom (princeton university press, princeton 1998). drucilla cornell, moral images of freedom : a future for critical theory (rowman & littlefield publishers, plymouth 2008). renee heberle and benjamin pryor, imagining law: on drucilla cornell (state university of new york press, albany 2008). adam thurschwell, ‘on the threshold of ethics’ (1993-94) 15 cardozo law review 1607. karin van marle, ‘in support of a revival of utopian thinking, the imaginary domain and ethical interpretation’ (2002) 3 journal of south african law 501. susan h. williams, ‘review essay: utopianism, epistemology, and feminist theory’ (1992-93) 5 yale journal of law and feminism 289. * lecturer in law, university of leicester, uk. � hyperlink "mailto:toni.johnson@leicester.ac.uk" �toni.johnson@leicester.ac.uk�. � drucilla cornell, beyond accommodation: ethical feminism, deconstruction and the law (routledge, london 1991); the imaginary domain: abortion pornography and sexual harassment (routledge, london 1995); at the heart of freedom (princeton university press, princeton 1998). � this sub-heading draws on the recent collection of essays by renee heberle and benjamin pryor entitled imagining law: on drucilla cornell (state university of new york press, albany 2008) which contains a contribution by cornell called ‘thinking the future’. � see chapter one of beyond accommodation (1991). � cornell (1991) 86. � cornell (1991) 141-2; cornell (1998) 60. � cornell also notes her role as union activist as informing her analysis. for more see cornell, moral images of freedom : a future for critical theory (rowman & littlefield publishers, plymouth 2008). � cornell (1991) 109. � susan h. williams, ‘review essay: utopianism, epistemology, and feminist theory’ (1992-93) 5 yale journal of law and feminism 289 at 291. � cornell (1991) 109. � m.j. clark, ‘deconstruction, feminism, and law: cornell and mackinnon on female subjectivity and resistance’ (2005) 12 duke journal of gender, law and policy 107 at 122. � cornell (1998) xi. � karin van marle, ‘in support of a revival of utopian thinking, the imaginary domain and ethical interpretation’ (2002) 3 journal of south african law 501 at 506. � cornell (1998) 6. � cornell (1998) 43. � cornell (1998) ix. � adam thurschwell, ‘on the threshold of ethics’ (1993-94) 15 cardozo law review 1607 at 1611. ___________________________________________________________________________ 2 ___________________________________________________________________________ 1 mcneilly the illusions of post-feminism ______________________________________________________________________________________________________________ feminists@law vol 1, no 2 (2012) ______________________________________________________________________________________________________________ the illusions of post-feminism, ghosts of gender and the discourses of law kathryn mcneilly* introduction “post-feminist” feeling, narrative and discourse can be viewed as a trend gaining significant traction over the past decade. bloggers, the media, and even voices within the academy seek to assure us that gender equality has been won; law, policy and practice have acceded to feminist demands and that, if anything, it is masculinity which is on the receiving end of discriminatory gender constructions. this short article seeks to consider evidence of how these post-feminist and “post-equality” narratives have permeated legal discourse and are subtly transmitted. this transmission, centring around an emphasis on gender neutrality, encourages the invisibility of material operations of gender in the law and the discursive reinsertion of traditional gender stereotypes to the detriment of women as legal subjects. analysis of these narratives aims to renew and reinstate the focus of the legal feminist project and to offer three practical areas where, it is submitted, what appears to be absent regarding sex and gender in fact haunts law’s operation, and sustained feminist attention continues to be imperative. the three areas highlighted for discussion are current gender neutral policy approaches, legislative regulation of sexual crimes and gender narratives in judicial adjudication. evidence throughout will be cited from contemporary uk and european law, policy and jurisprudence. “neutral laws” and “neutral subjects” the issue of gender-neutrality in legal instruments and texts is neither an unseasoned area of interest for feminism, nor one upon which feminist schools of thought have been particularly united. recent post-feminist and “post-equality” discourses, following presumptions that “feminism no longer has to be reiterated but simply breathed” and that equal subjectivity under law is a juridical given in the context of liberalism, have renewed use of neutrality at the vertical, creational levels of law and policy. following a foucauldian-based horizontal conception of power, however, law does not vertically exercise authority over social relations and discourses but is informed by, and in turn informs, these systems. resultantly, gender neutral approaches can be seen to obscure the multi-dimensional nature of power and its material effects upon gender, diverting attention from the reality of gendered interactions and practices, which inevitably inform the content of law and haunt its purpose. the liberal orthodoxy underlying modern law indeed stresses the principle of sexual neutrality as the paradigmatic standard for the articulation of legal issues, often even including those traditionally pertaining to sexed bodies and experience. this sexual neutrality has evolved to assume the form of gender neutrality in the “post-equality” era. this move away from formal equality based upon sex to an ostensibly more nuanced attention to gender has created the illusion that law is pursuing a feminist-informed agenda. however, it is submitted that in this neutrality a spectral presence of woman can be detected which is both distant and disembodied as the subject of law becomes overtly incorporeal, floating free of the discursive implications of the lived, material experience of gendered and sexed existence. the concept of gender neutrality as an appropriate strategy following the perceived displacement of feminism “post-equality” is clearly exemplified in the uk policy definition of domestic violence. this issue, initially advanced by the feminist movement as rooted in gendered power relations, is now legally presented as involving “neutral subjects” interacting in “non-gendered” ways. important implications beyond what is overtly provided for by law, however, arise from this approach. considering the text itself, following the uk home office, domestic violence in the uk is regarded as; “any incident of threatening behaviour, violence or abuse [psychological, physical, sexual, financial or emotional] between adults who are or have been intimate partners or family members, regardless of gender or sexuality.” such a definition illustrates the primacy which law is increasingly giving to the post-feminist assertion that in a “post-equality” era legal approaches to traditionally gendered issues are justified in, and produce justice from, treating all victims as genderless. however, while the uk definition overtly seeks to include heterosexual male and lgbt victims of intimate partner violence, which are undoubtedly feminist aims in themselves, deconstruction of this definition beyond the ostensible reveals gender specific constructions haunting the language used as the objective truth of contemporary gender and family relations presented by the definition emerges as actually thoroughly unstable and gendered. by creating a single definition encompassing all categories of victims, the paradoxical result of neutrality is the continued bolstering of heterosexist structural outlooks. policy discourse such as the home office definition is intended to inform wider law and practice, influencing how subjects of the law interpret their experiences. by providing a gender neutral definition, this text sends the message that domestic violence is not a historically or culturally gendered issue – it happens to everyone regardless of gender or sexuality. such an assertion is contradicted, however, by experiences such as the policing of domestic violence which continues to significantly draw upon gender characteristics and stereotypes. as a result of the proliferation of such gender-neutral approaches, feminist assertions of law, policy and practice as sites of heterosexist, gendered power struggles are deemed an anachronistic hangover; we have moved beyond a time when men abused women because of their culturally gendered position. experiences of violence as a man, woman, transsexual, heterosexual and homosexual are considered ejusdem generis; all carrying the same social meaning. such discourse conceals the specific gendered meanings that domestic violence imparts individually and collectively – messages about “women’s role”, about “being a man”, about family structures and the designation of power within the family, and the material implications of these constructions. accordingly, looking more closely at the neutrality of law we can detect a distinct heteronormativity as law’s impoverished conception of the social meanings of gender and sexuality appears not to have been effectively exorcised. gender neutrality in domestic violence policy is one example of how post-feminist narratives in legal discourse are haunted by the continuing reality of gender and are ironically sustaining traditional gender relations. a second area where it is submitted that post-feminist narratives should be investigated is that of legislative regulation of traditionally gendered crimes. legislative provision/censure prevailing modernist, and indeed self-perpetuated, constructions of the law as a coherent, socially apolitical and objectively imposed structure actively encourage belief that legislation is the epitome of legal certainty/truth/knowledge. the colour black traditionally used to describe the “black letter” of legislative law indeed signifies the finality and the undiluted nature of statute law which acts to remove it from the realm of question or challenge. however, poststructuralist rejection of the possibility of unchallengeable truth/knowledge and conceptions of law as a “plurality of discursive forums” serves to open space for assertions that legislation cannot be divorced or extracted from the material and discursive conditions in which it is formulated, and as such the language used is implicated with specific gender presumptions and balances of power which actively create social resonances beyond the “inactive” black letter. one example of gender ghosts spectrally circulating in legislative discourse can be found in the relatively recently introduced statutory offence of sexual assault by penetration. this offence appears to simultaneously disclose the nature of sexed gender relations through explicitly regulating sexual activity and also to conceal them through utilising a neutrality which makes invisible the gendered experience of such interactions. thus, it is submitted that this offence, and the legislation in which it is contained, requires continuing feminist attention in order to encourage increased correspondence with the lived experiences of gendered and sexed subjectivities. the offence of sexual assault by penetration was introduced in england and wales by the sexual offences act 2003, in northern ireland by the sexual offences (northern ireland) order 2009 and in scotland by the sexual offences (scotland) act 2009.the definition of this offence in the 2003 act is outlined in section 2; 2(1) a person (a) commits an offence if— (a) he intentionally penetrates the vagina or anus of another person (b) with a part of his body or anything else, (b) the penetration is sexual, (c) b does not consent to the penetration, and (d) a does not reasonably believe that b consents. as stated above, not only is this provision a further example of “post-equality” gender-neutrality – perpetrators can be either male or female, yet this neutrality is juxtaposed with use of the pronoun “he” in reference to perpetrators – but despite the provision’s relatively progressive potential at first glance, it is shaped by hetero-gendered constructions concerning sexuality. these constructions can be seen to censor all other accounts and maintain the illusion that law does not legislate on the nature of the body or sexual relations, but only responds to what bodies “naturally” look like and do. the victim of sexual assault by penetration in the legislative text is presented as violated, pierced, deprived of bodily integrity by a heteronormative penetrating force, which in contrast maintains its bodily integrity. not only does this discursive construction present all victims of penetrative assault in a feminised light, haunted by lack and incompleteness, it places power entirely on the side of the penetrator and denies the affective reality of sexual relations as the perpetrator remains abstracted, placed within the parameters of heterosexual male aggression and agency and unaffected by the experience physically and emotionally. as such, gender neutrality in this instance discloses the bodily experience of sexual assault, but at the same time conceals not only material affective and gendered effects, but also the gendered power involved in the offence, a power which continues into legal adjudication. the offence of sexual assault by penetration carries, by virtue of section 2(4), a maximum penalty of life imprisonment, as does the offence of rape outlined in section 1 of the 2003 act, which in contrast can only be perpetrated by a male. such parity of punishment would appear to signify that both crimes are of equal severity in the eyes of the law. however, if this is so why was there a need to label the offence of sexual assault by penetration as something other than rape? consideration seems to suggest that male heterosexuality shapes this legislation – what is to be defined as top of the hierarchy of sexual crimes and labelled with the strongly connotative label “rape” is the male experience of sex – phallic penetration only by a male. all other sexual experience is “othered” based upon the primacy of the phallic. victims of sexual assault with other objects, such as a bottle, a broom shaft or sex toys, may find the experience equally as degrading and traumatic as rape by penile penetration, yet their experience is denied the socially and symbolically significant definition of rape. for example, lesbian sexuality and the question of lesbian rape remains a spectral consideration on the margins of law; as lacey observes, this experience for victims remains “legally unspeakable”. gender neutrality in sexual offences is not an uncommon legal approach. for example, in jurisdictions such as canada, australia and new zealand sexual assault law remains gender neutral. indeed, while it cannot be submitted that the sex-specific framing of sexual offences is guaranteed to lead to better experiences for women, as feminist work on the uk law of rape illustrates, it is submitted that the possibilities for taking into consideration a more embodied and female-focused experience of sexual violation is significantly hindered by the neutrality of the offence of sexual assault by penetration. the above analysis illustrates how legislation which appears to act to protect women and men in the same way is in fact spectrally haunted by traditional heterosexist constructions of sex and sexuality. effects of these constructions impact the narrative positioning of the “victim” of such crimes, which is to be played out in the wider community and, as will be considered in the final section below, the courtroom. judicial pronouncements the courtroom has traditionally been regarded as an obvious site for power exchange, and more recently a site ripe for critical feminist analysis. following logically from poststructuralist emphasis on the construction of meaning through language, there can be no neutral system of judicial precedent; each new judgment will not be a mere vehicle of legal rules or summary of previous judgments, rather it will constitute “no more or no less than another text”. as social actors (mostly male) in socially valued positions, the judiciary across the court hierarchy occupy a front line position in the practical (de)construction of legal text, language and discourse. however, as feminists have ardently emphasised, the judiciary are themselves social subjects and will generate understandings of law which are influenced by their complex affiliations of sexuality, ethnicity, gender, religious identity and class. although subject positioning will always preclude fully objective judicial decision making, in the “post-equality” era formal sex equality protections enshrined in legislation and policy often have the effect of making invisible the material effects of gender on litigants. as a result, feminist legal attention should continue to thoroughly investigate judicial decision making, especially on sex-specific issues where judgments under closer scrutiny can be seen to be axiomatically haunted by perennial gender discourses which are damaging for women. an example of post-feminist constructions affording such analysis can be found in the recent european court of human rights case a, b and c v. ireland which adjudicated on the issue of access to services for termination of pregnancy. in ireland abortion is illegal except in strict circumstances where a real and substantial risk to the life, as distinct from the health, of the mother can be detected. the irish position on this matter has been an issue of considerable international concern in recent years, and the a, b and c case adds to a number of european legal pronouncements on termination of pregnancy in the irish jurisdiction. in a, b and c all three applications sought to utilise, inter alia, article 8 of the european convention of human rights, which seeks to protect family and private life, asserting that legislation regulating interruption of pregnancy is an unacceptable violation of a woman’s private life. applicants a and b drew upon the health and well-being implications of having to travel abroad to access abortion services, while applicant c’s case focused on failure to implement the irish constitutional right to abortion in the case of risk to the life of a woman.   although breach of article 8 was ultimately found albeit only for the final applicant the grand chamber’s reasoning throughout has a gendered intonation, despite the court’s attempt to place the issue within gender-neutral paradigms of medicine/well-being and privacy. the court ultimately refuses to define reproductive determination within the context of gender discrimination. as such, upon closer analysis the judgment does not appear to be the victory for women that it has been perceived to be and remains haunted by the law’s traditional failure to declare women’s reproductive agency qua agency. considering the judgment more closely, inadequate gender awareness can be detected in two specific areas. firstly, as women appealing to the law for help have so often experienced, the distinction between de jure and de facto protection is ignored. professional requirements on doctors in ireland to provide medical treatment post-abortion, and the previous european court decision to ensure access to information on abortion facilities outside ireland, are viewed as sufficient evidence to rebut meaningful consideration of the applicants’ experience of difficulties and discrimination in both these areas. legal discourse thus constructs the gap between formal legal protection and actual realisation of legal rights as negligible and evades the idea that gender might be relevant in experience of this gap. secondly, women appear as ghostly objects rather than embodied subjects of law in the judgment in what is defined as harm. the applicants’ invocation of article 3 guarantees of freedom from torture and degrading treatment stemming from their denial of straight-forward access to abortion services is dismissed on the basis that “ill treatment must attain a minimum level of severity if it is to fall within the scope of article 3”. we are left questioning what kind of body in what kind of circumstances would reach this calculable and “universal” level. is the female body capable of experiencing torture and degrading treatment in its reproductive capacity beyond experiences of rape, or is the bearing of children under all other circumstances viewed as too natural to be conceived of as torturous or degrading? from the above, we can see that the gendered issue of lack of adequate abortion services in the “post-equality” era is judicially (re)presented as one which does not derive from social constructions of gender, leading to a veiling of the gendered nature of reproductive choices and experience. such legal discourse in which gender is inadequately considered in the name of equality conceals the relevant issues facing women as sexed subjects, and requires sustained challenge. challenging illusions from this brief analysis of three elements in current legal cultures – gender neutrality in policy, the legislative presentation of sexual crimes, and the adjudication of gendered issues by judges – we can see that gender is at all times presented as absent, but can still be detected in a place beyond what is overtly being said. the post-feminist revolution, therefore, appears to be an illusory misnomer for the continuation of gendered constructions in legal discourse, albeit in a slightly altered manner. sustained and engaged critique with tangible texts of law must be encouraged in contemporary feminist legal research in order to reveal and resist post-feminist narratives which simultaneously embrace and deny gender equality. notions of post-feminism have proven particularly challenging to the current feminist movement, however, this article has sought to illustrate that continuance of a back to basics approach to feminist legal critique which focuses on the core tenets of law offers many opportunities for challenging the illusions that seek to present the feminist movement as the poltergeist of 1970s activism. bibliography ashworth, andrew and temkin, jennifer, “the sexual offences act 2003 (1) rape, sexual assaults and the problems of consent” (2004) criminal law review, pp. 328-346. barrett, michèle and philips, anne (eds.), destabilizing theory: contemporary feminist debates (cambridge: polity press, 1992). cole, david, “‘going to england’: irish abortion law and the european community” (1993) hastings international & comparative law review 17 pp. 113-142. coward, rosalind, sacred cows: is feminism relevant to the new millennium? (london: harper collins, 1999). crown prosecution service, policy for prosecuting cases of domestic violence (london: cps, 2009). davies, margaret, “feminism and the flat law theory” (2008) feminist legal studies 16 pp. 281-304. farrel, warren, the myth of male power: why men are the disposable sex (n.y.: simon & schuster, 1993). fegan, eileen, “’ideology’ after ‘discourse’: a reconceputalisation for feminist analyses of law” (1996) journal of law and society 23(2) pp. 173-197. fegan, eileen and rebouche, rachel, “northern ireland's abortion law: the morality of silence and the censure of agency” (2003) feminist legal studies 11 pp.221-254. fitzpatrick, peter (ed.), dangerous supplements: resistance and renewal in jusrisprudence (london: pluto press, 1991). foucault, michel, history of sexuality, vol. 1, (trans. robert hurly, london: harmondsworth, 1979). gordon, avery, ghostly matters: haunting and the sociological imagination (minneapolis mi: university of minneapolis press, 2001). hassouneh, dena, “the influence of gender role stereotyping on women’s experience of female same-sex intimate partner violence” (2008) violence against women 14 pp. 310-325. hoff sommers, christina, the war against boys: how misguided feminism is harming our young men (n.y.: simon & schuster, 2001). home office, domestic violence: a national report (london: the stationary office, 2005). hm government, call to end violence against women and girls: action plan (london: cabinet office, 2011). lacey, nicola, unspeakable subjects: feminist essays in legal and social theory (oxford: hart publishing, 1998). mackinnon, catharine, “feminism, marxism, method, and the state: towards feminist jurisprudence” (1987) signs, 8(2) pp. 635-658. mcglynn, clare and munro, vanessa (eds.), rethinking rape law: international and comparative perspectives (london: routledge, 2010). mclaren, margaret, feminism, foucault and embodied subjectivity (suny press: albany, 2002). munro, vanessa and stychin, carl (eds.), sexuality and the law: feminist engagements (london: routledge-cavendish, 2007). naffine, ngaire and owens, rosemary (eds.), sexing the subject of law (london: sweet and maxwell, 1997). o’donovan, katherine, sexual divisions in law (london: weidenfeld and nicolson, 1985). seelau, shelia and seelau, eric, “gender-role stereotypes and perceptions of heterosexual, gay and lesbian domestic violence” (2005) journal of family violence 20(6) pp. 363-371. schweppe, jennifer (ed.), 25 years of protection? article 40.3.3, the unborn child and abortion in ireland (dublin: liffey press, 2008). smart, carol, feminism and the power of law (london: routledge, 1989). yeatman, anna, bureaucrats, technocrats, femocrats (sydney: allen and unwin, 1990). wicks, elizabeth, ‘a, b and c v ireland: abortion law under the european convention on human rights” (2011) human rights law review 11(3) pp. 556-566. zalewski, marysia, feminism after postmodernism: theorising through practice (london: routledge, 2000). cases the society for the protection of unborn children ireland ltd v. grogan and others [1991] ecr i-4685, c-159/90. attorney general v. x [1992] iesc 1; [1992] 1 ir 1 (5th march, 1992). open door and dublin well woman v. ireland (1992) echr application no. 14234/88. d v. ireland (2005) echr application no. 26499/02. a, b and c v. ireland (2010) echr application no. 25579/05. * phd candidate, school of law, queen’s university belfast. � hyperlink "mailto:kmcneilly01@qub.ac.uk" �kmcneilly01@qub.ac.uk�. � the terms “post-feminist” and “post-equality” will be used interchangeably to refer to a collection of movements asserting that gender equality has been achieved and that in the twenty-first century the feminist project is redundant. � rosalind coward, sacred cows: is feminism relevant to the new millennium? (london: harper collins, 1999) at p. 7. � see margaret davies, “feminism and the flat law theory” (2008) feminist legal studies 16 pp. 281–304. � uk home office, domestic violence: a national report (london: the stationary office, 2005) at para. 10. � see research such as shelia seelau and eric seelau, “gender-role stereotypes and perceptions of heterosexual, gay and lesbian domestic violence” (2005) journal of family violence 20(6) pp. 363-371 and dena hassouneh, “the influence of gender role stereotyping on women’s experience of female same-sex intimate partner violence” (2008) violence against women 14 pp. 310-325. � nicola lacey, unspeakable subjects: feminist essays in legal and social theory (oxford: hart publishing, 1998) at p.102. � anna yeatman, bureaucrats, technocrats, femocrats (sydney: allen and unwin, 1990) at p. 170. � ngaire naffine, “the body bag” in ngaire naffine and rosemary owens (eds.), sexing the subject of law (london: sweet and maxwell, 1997) pp.79-93 at p. 83. � see for example, rosemary hunter and kathy mack, “exclusion and silence: procedure and evidence” in naffine and owens, ibid. pp. 171-192. � nicola lacey, supra n. 6 at p.103. � see sections 271 273 of the canadian criminal code, new south wales crimes act 1900 division 10 and the new zealand crimes act 1961 no. 43, part 7, section 128b. � for example, sharon cowan, “all change or business as usual?: reforming the law of rape in scotland” in clare mcglynn and vanessa munro (eds.), rethinking rape law: international and comparative perspectives (london: routledge, 2010) pp. 154-169. � michèle barrett, “words and things: materialism and method in contemporary feminist analysis” in michèle barrett and anne philips (eds.), destabilizing theory: contemporary feminist debates (cambridge: polity press, 1992) at p. 203. � see davies, supra n. 3 at p. 299. see also katherine o’donovan, sexual divisions in law (london: weidenfeld and nicolson, 1985), peter fitzpatrick (ed.), dangerous supplements: resistance and renewal in jusrisprudence (london: pluto press, 1991) and eileen fegan, “’ideology’ after ‘discourse’: a reconceputalisation for feminist analyses of law” (1996) journal of law and society 23(2) pp. 173 97. � (2010) echr application no. 25579/05. � the offences against the person act 1861 sections 58 and 59 criminalises the “procurement of a miscarriage”, and subjects the offence to penal punishment. � see also open door and dublin well woman v. ireland (1992) echr application no. 14234/88, d v. ireland (2005) echr application no. 26499/02 and european court of justice case c-159/90 the society for the protection of unborn children ireland ltd v. grogan and others [1991] ecr i-4685. � in 1983 the irish constitution was amended to grant constitutional protection to the fetus, inserting article 40.3.3 which reads "the state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right". there has been much debate over the scope to which this provision permits abortion in cases such as pregnant women expressing suicidal feelings. the irish supreme court decision of attorney general v. x [1992] iesc 1; [1992] 1 ir 1 (5th march, 1992) upheld access to termination in such circumstances, yet the debate remains ongoing. � a, b and c v. ireland, supra n. 15 at para.269 -270. � see, for example, commentary from the irish family planning association <http://www.ifpa.ie/eng/media-info/news-events/news-events/ifpa-welcomes-landmark-decision-for-women> (accessed 14 february 2012). � namely, the gap between formal legal protection on the one hand, and actual realisation of legal protection on the other. � open door and dublin well woman v. ireland, supra n. 17. � a, b and c v. ireland, supra n. 15 at para.127 and 130. � ibid. at para. 164. 2 1 untitled document feminists@law, vol 7, no 2 (2017) the role of the european court of human rights in the protection of women fleeing gender-based violence in their home countries christel querton*  this is an audio recording of a paper given at the socio-legal studies association annual conference, newcastle university, 5-7 april 2017. more than one million persons crossed the mediterranean sea in 2015 into the european union (‘eu’) leading many to describe the situation as the worst refugee crisis in europe since the second world war. the role of international human rights law in ensuring the protection of asylum seekers from return to countries where they would face prohibited treatment is consequently of particular interest. in 2015, approximately 27.7% of persons claiming asylum in the eu were women and girls and reports suggest most flee war, armed conflict, persecution and sexual or gender-based violence. in the context of increasing reliance by asylum seekers and refugees on the european court of human rights (‘the court’) as a protection mechanism against return to ill-treatment, torture and persecution, examination of the court’s approach is essential. adopting a gender analysis based on feminist legal theory, this paper explores the case law of the court relating to gender-based violence and discrimination against women. using a comparative approach, the paper analyses how principles and concepts developed in ‘domestic’ cases are applied in ‘expulsion’ cases, in order to query the impact of the court as a mechanism for the effective protection of women seeking refuge in europe. the paper considers the extent to which international human rights law as interpreted by the court responds to the international protection needs of those at risk of gender-based violence. it compares how the principles regarding the prohibition of gender-based violence and discrimination against women developed by the court in ‘domestic’ cases are applied to ‘expulsion’ cases where the breach of article 3 echr is feared as a result of treatment in the receiving country. protection against gender-based violence from a ‘male network’ and the court’s reliance on this concept in ‘expulsion’ cases is explored in particular. * phd student, university of newcastle, uk.. c.querton2@ncl.ac.uk drucilla cornell revisiting beyond accommodation _____________________________________________________________________________________ feminists@law vol 1, no 1 (2011) _____________________________________________________________________________________ revisiting beyond accommodation after twenty years drucilla cornell* beyond accommodation was part of the thinking gender series in which a number of feminist theorists and philosophers questioned the adequacy of essentialist or empirically based notions of gender as foundational to feminist theory and practice. the very notion of being gendered was critiqued as a kind of prison in which women could not break out of a symbolic order that stamped them with a certain kind of being in the world. many feminists built on judith butler’s path-breaking notion of gender as performance, to challenge the idea of “woman,” or even a conception of any shared reality of “woman” that could be the basis of some kind of account of gender that could give us a comprehensive notion of women’s oppression and women’s freedom. before turning to the trajectory of my work, i need to say something about my own political background, because it will help illuminate why i wrote of “ethical feminism” from the beginning. first, and most importantly, my work as a theorist is deeply influenced by my activism in marxist-leninist groups throughout my twenties. unlike many of my generation, icontinue to consider myself a kind of marxist, and certainly someone committed to socialist transformation. the reason i bring up my activism is because, although i have never forsaken the view that there are conditions in which armed struggle is absolutely necessary for liberation, i became very concerned with the acceptance by the groups of which i was a part of the idea that violence could be a neutral tool. those who accepted the neutrality of violence were deeply influenced by lenin, who over and over again argued that violence could be wielded in the name of a just cause, and that ultimately, the ends justified the means. i saw horrible abuses in the organizations to which i belonged of this idea of the neutrality of violence; often, violence directed towards women, but not towards women alone. the reason i was so concerned with what kind of violence was consistent with aspirations for a more just world was because one of the organizations i was in committed itself to armed self-defense to help protect the black panthers from what the organization saw as an assault by the government. i considered that form of self-defense legitimate, but because it remained un-thought-through, due to a leninist hegemonic notion of the use of violence, i was concerned with political violence and its limitation. as a result, i rejected the idea of the neutrality of violence, and what i saw as the vulgar materialism that wrongly invested in the idea that if you changed the material conditions of production, the revolution had been achieved. i began to think about the relationship between material transformation of the means of production and the transformation of how we viewed ourselves as living and fighting together, so as to foreshadow the new society we were trying to bring into being. simply put, i began to think about the need to defend ethical limitations on politics, but i never rejected, and never will reject the need for political struggle as the key to liberation. this background is important to understand why i turned to the ethical from the beginning of my work. it also underscores that i never meant the term “ethical feminism” to replace political struggle, including the struggle against the material conditions of women’s oppression. but i did accept that easy appeals to gender, as if it was a grounded, self-evident empirical category, were misguided. therefore, my second use of the word “ethical” was that if we were to think of solidarity between women, we would have to think of the ethical relations between us that might allow solidarity to arise, and not just assume solidarity because we suffered shared oppression under a patriarchal regime. as a result, my thinking turned around a complex notion of “the feminine within sexual difference” rather than gender. i did not feel that feminism could do without a kind of thinking of the feminine within sexual difference, because if one simply sought an escape from the markings of the feminine, this attempted escape would reinstate the abjection of the feminine that lies at the heart of any patriarchal symbolic order and society. through an engagement with the works of jacques lacan, luce irigaray, and jacques derrida, amongst others, i tried to show that the feminine could be reworked through metaphor and myth, so as to open up a different way of being gendered, which at the same time did not deny the hold on us of a patriarchal symbolic order often reinforced by law. as a law professor, i was also deeply influenced by the limits of gender equality as the ideal that should guide feminist activism, including in the law. as a result, in 1995, i developed the aesthetic idea of the “imaginary domain,” the moral and psychic space for each one of us to express and to reimagine our sexuate being beyond any so-called realities of how we are engendered. i need to say something about the philosophical background of the imaginary domain. in the philosophy of the limit, i argued that deconstruction undoes the notion that we can know in advance what is impossible, and that it therefore opens a space for the reimagining of other possible social orders and views of justice. but i further argued that if we take the ethical call seriously, it is not enough to note this space: we must actually dare to configure aesthetic ideas in order to render justice or any of the other great ideals sensible to those who are engaged in political struggle. my combination of the aesthetic and the ethical could not, then, rely on an ethical reading of deconstruction. i turned to kant, and particularly the kant of the critique of judgment, to argue that the great ideals cannot be known: they can only be figured, and further, that they must be figured if we are to be able to distinguish between different political struggles for hegemony. for the difference between rightwing and leftwing politics turned then and turns now on the different ideals to which political movements aspire, and which regulate their struggle to attempt to create a better world in accordance with those ideals. i defended the imaginary domain not only as a moral right, but also as a better way of thinking how certain issues of feminist legal theory should be addressed, including abortion, sexual harassment, and pornography. let me add that despite anyone’s criticism of formal equality as an ideal for feminist legal activism, none of us would ever have entered the academy without the work of lawyers who brought down the barriers against women that prevented us from entering the profession. we are all in debt to those who tirelessly worked to challenge gender discrimination. but that said, my concern to rethink the feminine within sexual difference was not only to hold open a space for utopian possibility: it was also to recognize that the problem with the idea of woman or women was that it not only homogenized a group that was in fact very diverse, but that it operated to erase racial, cultural, and ethnic difference, an erasure that went against the very idea of what i had named “ethical feminism.” ethical feminism was grounded in a reworking of levinas’ notion of a non-violent relationship to the other; the aspiration to such a relationship would lead one to challenge racist exclusions that had come to haunt the second wave of feminism. as we have seen, however, this turn to the ethical was thought against the background of how political struggle must always involve itself in thinking through the ethical limits on the means it engages in its efforts to create a better world. i was not satisfied with the highly original, but in my view mistaken idea of intersectionality put forward by kimberlé crenshaw. crenshaw argued that we needed to think of gender, sexuality, race, and ethnicity as necessarily intersected with one another, and that this intersection would place women differently within the societies in which they lived, and of course within the law. for me, the problem with intersectionality was that it still reinscribed the notion that there was an “and” between, say, “black” and “woman.” what we needed instead was an analysis of the way in which a black woman is a different configuration of the feminine within sexual difference from a white woman: there is no way to separate out the so-called two prongs within that identification, precisely because the identification is one in which they cohere from the beginning, in and through what i have called the imaginary domain. the danger of intersectionality is that despite its intent, it still reinscribes the notion that there is a gender that can be separated from how one is racialized, and how one in turn identifies with racialized difference. later, in between women and generations, i was to distinguish between position, identity, and identification, in order to answer some of the charges of identity politics, particularly against those who were part of movements against racial and ethnic discrimination within the united states. for me, the importance of position, with its marxist overtones, is that there is a materiality to how we are placed in a society, which we cannot simply escape from by attempting to disidentify with who we have been shaped to be, particularly through certain kinds of privileges that accrue not only to race but also to class. for example, i may disidentify with the idea of whiteness, but i am positioned in society as a white woman, and that disidentification does not free me from that position. in fact, i have argued that the opposite is the case: it is necessary for white women, as part of the aspiration of ethical feminism, to recognize the position of privilege that accrues to them as white women, even when they struggle to disavow those privileges. secondly—and this follows from an argument i made in beyond accommodation—a symbolic order has a materiality to it, as well as a history, and therefore there are certain identities that are formed over time, and which leave their imprint on all of us. identifications are of course rooted in a psychoanalytic understanding of how this imprinting can never fully capture us, and therefore there is always a fluidity that leaves open the space for disidentification as well as resymbolization and reidentification. i saw movements such as black power within the united states as undertaking a complex process of resymbolization and reidentification, which did not reinscribe those movements in a victim identity that demanded recognition from the “white masters.” although the thinking of race, class, and ethnic difference clearly influenced my rethinking of the feminine within sexual difference, i was not yet, in 1991, involved with a more complex effort to think through transnational feminism, even though i had already been an anti-imperialist activist. for the last eight years, i have been involved in what is called “the ubuntu project” in south africa, and i have lived in south africa from 2007 to 2010. during that time, i held the national research foundation chair in customary law, indigenous ideals, and the dignity jurisprudence. there is simply no way to think about the living customary law, let alone indigenous ideals, with all the complexity that attends to the notion of the indigenous, without also having to rethink the very idea of modernity as some kind of aspirational ideal. in the philosophy of the limit i challenged the notion of postmodernity. my argument was that such a designation between historical periods ultimately reinscribed a philosophy of history in which each period could be given a set of categorizations that would allow it to be neatly delineated from other periods. in other words, it reinscribed a kind of simplistic hegelianism, despite the frequent critiques of hegel by postmodern critics. my work in south africa deepened my concern, not only with postmodernity, but correspondingly, with the european roots of the modern as a set of ideals or institutions that have the effect of delegitimizing other intellectual heritages, particularly those heritages associated with formerly colonized peoples. simply put, one cannot even begin to think the complex notion of the indigenous without challenging certain concepts of modernity, particularly as modernity often implies a kind of teleological notion of progress towards a modern european state. of course, it needs to be stated here that this does not mean that we return to any nostalgic notion of the pre-modern or the non-european as providing us with any easy alternatives to what we now know as modernity. as the philosopher étienne balibar rightly reminds us, there is a “universality as ‘reality’” that is brought about by global capitalism, which is about as far as one can imagine from the more optimistic ideas about how the modern can ultimately provide us with ethical and political solutions to the searing oppressions faced by many of the world’s people, both in the north and the south. gayatri chakravorty spivak, amongst others, always reminds us that violence comes not only in the form of exploitation or super-exploitation of the work force of the global south, but also as epistemic violence. if we give the modern a strong philosophical justification, then that which cannot be rationalized as modern falls below the bar of what can be taken seriously, if it can be heard at all. put somewhat differently, and in spivak’s terms, the idea of a telos to an inevitably progressive modernity can make us unable to see or hear the resistances of the subaltern, as they seek to challenge hegemonic forms of social and symbolic life. the modern, in other words, can undo our ability to heed the symbolic, as well as the institutional structures that support subaltern resistance (one such support could be ethical ideals such as ubuntu). when spivak wrote in her rightfully famous essay that the subaltern could not speak, she did not mean it literally. as she explains in a 2010 essay: the point that i was trying to make was that if there was no valid institutional background for resistance, it could not be recognized. bhubaneswari’s resistance against the axioms that animated sati could not be recognized. she could not speak. unfortunately, for sati, a caste-hindu practice, there was an institutional validation, and i unraveled as much of it as i could. my point was not to say that they couldn’t speak, but that, when someone did try to do something different, it could not be acknowledged because there was no institutional validation. it was not a point about satis not speaking. of course, spivak also reminds us of the dangers of reverse ethnic sentimentality, as if there were people who are pure, and have managed to escape from the underside of modernity and the brutal realities of advanced capitalism that balibar associates with “universality as ‘reality.’” my point is only that we need to have a strong critique of the modern, as it is used to stand in for a notion of progress that delegitimizes intellectual heritages and forms of thought that are mistakenly designated as pre-modern, irrational, or simply uncivilized. in his excellent book, caliban’s reason, paget henry uses the tempest to show how the figure of the black other has been turned into a monster who cannot think and must be saved from his irrationality and violence by the civilizing other, who will bring all the benefits of modernity to him. for example, henry has rightly argued that the rich philosophical and spiritual heritages of the yoruba religions have been completely discredited, even by those who have developed revolutionary african existentialist philosophies. the yoruba religions include santeria, candomblé, and voodoo, which came to the new world, including the caribbean islands, during the middle passage of the slave trade. henry has certainly made an important contribution to the critique of a moral notion of the modern. for henry, there are five distinguishing characteristics of how intellectual heritages of formerly colonized peoples come to be marked as peripheral or, in his words, “calibanized.” first, imperial conquest demands the need to claim hegemony and legitimacy for the conquerors. second, the state, in order to legitimate itself, depends on the production of symbolic forms that in a profound sense invert the world. unethical oppression is defended as a moral necessity. the other side of this inversion is that competing african systems of thought must be completely delegitimized. imperialism, then, must foster a colonial asymmetry of what constitutes legitimate knowledge, by creating a slighted canonical reading of, for instance, afro-caribbean philosophical and spiritual traditions, that renders them as something that must be overcome, as an impediment to so-called civilization and modernization. third, the battle to dismiss caliban leads the state to intervene in the educational process, to create an intellectual elite that is deprived of knowledge of its own local intellectual heritage. for henry, this underscores the divergence between local centers of cultural and intellectual production in the global south, and those that are seen as legitimate modern sites of culture, particularly philosophy. fourth, these peripheral systems, which are systematically underdeveloped by the state apparatus and imperial education system, underscore a crisis of identity, because one can only identify as educated if one disidentifies with one’s own intellectual heritages. according to henry, this leads to a profound crisis of ego identity, which of course has been beautifully described in frantz fanon’s work, black skin, white masks. fifth, racialization is what ultimately turns the local traditional heritages into so-called peripheral outliers. all of these components are part of henry’s challenge to jürgen habermas, who is one the great thinkers of modernity as implying a telos that might point us to a way beyond the real universality which balibar brilliantly describes in all its ugliness. i have discussed my own and henry’s critique of habermas in my recent book written with kenneth michael panfilio, symbolic forms of a new humanity, so i will not write more about that critique of habermas here. but i do want to return to myth as it inheres in the metaphoric aspect of language, since the last chapter in beyond accommodation insisted on the importance of myth for feminist theory. in both symbolic forms of a new humanity and my 2008 book, moral images of freedom, i relied on the work of the philosopher ernst cassirer to provide a more comprehensive framework as to why myth cannot be separated from language. cassirer uses the phrase “word magic” to describe how language itself connotes a world that can never be completely disenchanted. word magic fixes something with a name, such that in itself it is reality. in other words, what is real can never be separated from the mark of ideality. the thought of finite creatures is always in language, and language is always embedded in a symbolic order, with competing variations and plural definitions of the meaning of reality. this mark of ideality should not be confused with any kind of naïve idealism. thus, to mimetically interact with myth, bound by what cassirer calls word magic, is to encircle and reconfigure reality in its archetypical narrative. this mimetic interaction will inevitably change the fundamental understanding of reality within a symbolic world. if word magic is a substantive being and power in the first instance, then it is not something we can get over in modernity because it is the way human beings confront reality. certainly, myself and paget henry, who also embraces mythico-poetical thinking as a necessary part of transformative philosophy, understand that the reconfiguration of myth is a precarious task. it is one in which we delve into the very symbolic world that has given rise to that which demands reconfiguration, in the case of beyond accommodation: the feminine within sexual difference. the constant struggle of language to move beyond itself, and bring to life what is our reality, is what cassirer refers to as the importance of the “hypostatization of the word”: and yet, this very hypostatization of the word is of crucial importance in the development of human mentality. for it is the first form in which the spiritual power inherent in language can be apprehended at all; the word has to be conceived in the mythic mode, as a substantive being and power, before it can be comprehended as an ideal instrument, an organon of the mind, and as a fundamental function in the construction and development of spiritual reality. yet it is precisely this hypostatization of the word that always carries within it an ideality that allows the reconfiguration of mythic reality, because myth and word magic take us back to metaphoric transference, and the “as if” that has been frozen can be put back into life. for someone like paget henry and myself, then, myth, and mythico-poetical thinking, is not pre-modern, nor is it part of some kind of conception of a finished project of modernity such as that advocated by habermas. for henry, the rejection of mythico-poetical thinking is part of the calibanization of afro-caribbean philosophy and african existentialism. in beyond accommodation and other books, i have shown how feminist writing, and not just literary writing, has engaged with the reconfiguration of myth to open up transformative possibilities that have been obscured by a patriarchal symbolic order. as i argued in beyond accommodation, tony morrison’s use, in her novel beloved, of the killing mother told through the life of a slave explodes some of the fantasies associated with what seems to be the worst kind of murder, one tabooed by the very ideal of motherhood. one last note. in all of his work, henry insists on what he calls both the historicist and the mythico-poetical aspect of revolutionary transformation. as i have already indicated, i am in complete agreement with him that we must remain faithful to the need for a socialist politics, even if we only need to constantly rethink what socialism demands. in beyond accommodation, i argued that it was a mistake to contrast so-called “materialist” feminism, which focused on the actual oppression of women, with the seemingly “elitist” french feminist writing, which appeared to be endlessly self-referential and supposedly left women’s oppression untouched. i made this argument for two reasons. first, as i have already argued, there is no materiality outside of the symbolic order. that we are always already in language has become a commonplace understanding of how the world comes to us. but my focus on feminine writing, and particularly on myth and metaphor, was not to underscore that there can be a conventional and shared reality, but rather to try to demonstrate how changing the way in which we see the world and ourselves actually has material effect. secondly, i did so to challenge the so-called realism of feminists who argued that the material of women’s oppression was so overwhelming that every escape just turned into another barrier to our freedom and equality, and that therefore, imagining otherwise is an empty, useless fantasy. my critique of catharine mackinnon was precisely that, because she gives us a so-called “materialist” account of our oppression that encloses us in a reality in which the only hope for transformation is the complete undoing of the system. there is no reform project, or even a transformative project, within a patriarchal order. all we can do is refuse our sexed position by literally not having sex, while relentlessly exposing the brutality to women of this patriarchal order. but all this said, i at no time wanted to deny that women’s oppression must also unite itself with struggles for a true transformation of the capitalist order. i was then, and continue to be, an ally of a certain kind of socialist feminism. ultimately, all of my work has been inspired by marx’s famous thesis: “the philosophers have only interpreted the world, in various ways; the point is to change it.” * professor of political science, comparative literature and women’s studies, rutgers university, usa. �hyperlink "mailto:imaginarydomain@hotmail.com"�imaginarydomain@hotmail.com�. � drucilla cornell, beyond accommodation: ethical feminism, deconstruction and the law. new york: routledge, 1991. the thinking gender series was edited by the feminist scholar linda nicholson and promoted and protected by maureen macgrogan, who was then an editor at routledge press. nicholson’s edited collection, feminism/postmodernism, helped situate the series. feminism/postmodernism. ed. linda nicholson. new york: routledge, 1989. � famously, butler argued that any concept of woman would be infused with heteronormativity, and that gender was not a given, but was instead a set of performances that, as they were repeated, could also shift in their meaning through their very iterability. see judith butler, gender trouble: feminism and the subversion of identity. new york: routledge, 1989; feminists theorize the political. ed. judith butler and joan scott. new york: routledge, 1992; and denise riley, “am i that name?” feminism and the category of “women” in history. minneapolis: university of minnesota press, 2003. � drucilla cornell, the imaginary domain: abortion, pornography & sexual harassment. new york: routledge, 1995. � drucilla cornell, the philosophy of the limit. new york: routledge, 1992. � immanuel kant, the critique of the power of judgment. trans. paul guyer and eric matthews. cambridge: cambridge university press, 2001. � this is my disagreement with ernesto laclau’s defense of populism in on populist reason. london: verso, 2005. � kimberlé williams crenshaw, “mapping the margins: intersectionality, identity politics, and violence against women of color.” in the public nature of private violence: women and the discovery of domestic abuse. ed. martha albertson fineman. new york: routledge, 1994, pp. 93-120. � drucilla cornell, between women and generations: legacies of dignity. new york: palgrave, 2002. � see ubuntu and the law: african ideals and postapartheid jurisprudence. ed. drucilla cornell and nyoko muvangua. new york: fordham university press, 2011. � étienne balibar, politics and the other scene. trans. christine jones, james swenson, and chris turner. new york: verso, 2002, p. 147. � gayatri chakravorty spivak, “can the subaltern speak?” in marxism and the interpretation of culture. ed. cary nelson and lawrence grossberg. urbana, il: university of illinois press, 1988, pp. 271-313. � gayatri chakravorty spivak, “in response: looking back, looking forward.” in can the subaltern speak? reflections on the history of an idea. ed. rosalind morris. new york: columbia university press, 2010, pp. 227-236, p. 228. � paget henry, caliban’s reason: introducing afro-caribbean philosophy. new york: routledge, 2000. � frantz fanon, black skin, white masks. trans. richard philcox. new york: grove press, 2008. � see jürgen habermas, the philosophical discourse of modernity. trans. frederick g. lawrence. boston: mit press, 2000. � drucilla cornell and kenneth michael panfilio, symbolic forms for a new humanity: cultural and racial reconfigurations of critical theory. new york: fordham university press, 2010. � drucilla cornell, moral images of freedom: a future for critical theory. new york: rowman & littlefield, 2008. � in his recent book on hegel, fredric jameson reminds us of this point by citing hegel: “this ideality of the finite is the chief maxim of philosophy; and for that reason every genuine philosophy is idealism.” hegel, encyclopedia of logic. trans. william wallace. oxford: clarendon press, 1975, p. 140. cited in fredric jameson, the hegel variations. new york: verso, 2010, p. 30. � ernst cassirer, language and myth. new york: dover, 1953, p. 62. cited in symbolic forms for a new humanity, p. 57. � for a much more elaborate discussion of cassirer, see the first two chapters of symbolic forms for a new humanity. � toni morrison, beloved, new york: alfred knopf, 1987. � karl marx, “theses on feuerbach.” in the german ideology, part 1. ed. c. j. arthur. new york: international publishers, 2007, p. 123. _____________________________________________________________________________________ 12 _____________________________________________________________________________________ 1 shalhoub-kevorkian palestinian feminist critique __________________________________________________________________________________________________________________ feminists@law vol 4, no 1 (2014) __________________________________________________________________________________________________________________ palestinian feminist critique and the physics of power: feminists between thought and practice nadera shalhoub-kevorkian* the palestinian woman in the jewish state is a woman who confronts and defies bio-political, geopolitical and necropolitical zionist settler colonialism, as well as socio-patriarchal oppression. the various forms of oppression facing palestinian women, and the discrimination that violates their rights (rouhana, 1997), along with the israeli state’s structural violence (rouhana and sultani, 2003) have proliferated. these forms of oppression have taken on various hues as a result of the economic stranglehold tightening its grip on the palestinian community, attacks on the fabric and unity of palestinian society, and the rise of masculinist ideologies, which have been reproduced, reconstructed and amplified alongside and through the growth of zionist policies. as pointed out by black feminists and third world women scholars and activists, the zionist settler colonial regime, like other settler colonial structures (e.g. smith, 2005), sought to manipulate patriarchal forces within the colonized society, which have continued to gather strength since the 1948 nakba, or “catastrophe”, as palestinians name the arab-israeli war that followed the establishment of the state of israel. exploiting the trauma that had befallen the palestinian people, and the resulting fear and confusion (sa’di, 2005), zionist authorities selected a number of individuals and “notables” to whom they granted a small amount of power. an official endorsement as a mukhtar (chief) or wajih (notable) deluded these chosen individuals into thinking they still had influence and bore responsibility for their communities (cohen, 2006; hassan, 1999). at the same time, the state continued to kill, confiscate land, enact racist laws including demographically oriented regulations, and attempted to negate palestinian identity by controlling their bodies, lives, and educational institutions. the state has also continued to harass and imprison intellectuals, along with other draconian measures (zureik et al, 2011). women living in such contexts are considered producers of palestinians. their bodies and productivity, as israeli demographers argue (shargai, 2010; sofer and shalev, 2004), are perceived as “demographic threats” that should be incapacitated. portraying women as biopolitical threats to the existence of the settler colonial power, added to the geo-political need to dispossess their land and constrain them spatially, has effectively framed palestinians as feared entities that can’t be trusted (e.g. kassem, 2011) grounded in the knowledge produced through my own position as a palestinian feminist born and raised in haifa, this paper delves into the nature of feminism for palestinian women in the jewish settler colonial state by asking three main questions: 1. how does the complex socio-political reality of settler colonialism reflect itself in the lives and status of palestinian women living in israel? 2. what kind of critical feminist theorizing is needed from palestinian feminists in israel? 3. how can we analyze and confront the racism of the historical silence of the majority of israeli feminists towards the historical injustice and current violence faced by palestinian feminists? how does the complex socio-political reality of settler colonialism reflect itself in the lives and status of palestinian women? the status of palestinian women in the jewish state is embedded in the structural violence of zionist ideology. the violence of settler colonialism, specific to the jewish state (with its two unique theologies, the biblical one of the “chosen people in the promised land”, and the “securitized” one, supporting policies of dispersion, displacement, massacres, and ongoing historical injustice) has led to the marginalization of palestinians, men and women alike, in historic palestine, and to their confinement in isolated bantustans. not only were palestinians who tried to return to their homes following the nakba criminalized and defined as “infiltrators”, the state also translated its colonial policies of uprooting and dividing palestinian space into geographical areas of restricted movement, which stagnated under military rule, a regime that was enforced until 1966. dominance over the individual contained the palestinian within geographical areas controlled by the israeli “security” regime in the north (the galilee), the center (the triangle area), and the south (the naqab). the act of geopolitical separation was achieved through planning and engineering mechanisms of control and continuous surveillance of space, which led to the domination of palestinian movement and the judaization of the territory. this contraction of palestinian space was accomplished through a plethora of legal, cultural, and political procedures (yiftachel, 2006; rouhana, 1997; kretzmer, 1990; yacobi, 2002). these colonial politics, and the policies of displacement, dispersion, and violence against palestinians, have had an impact on two levels: firstly, they sowed intense fear and confusion within palestinian society, which reacted by redoubling its efforts to protect itself, including by safeguarding the family from displacement, poverty, hardship, and the interference of the jewish state in its life and privacy. systematic violence, reflected in part in the specific suffering a woman experiences upon losing her family, home, security, privacy, and access to educational institutions, etc., and the intense militarization of their bodies and lives, has obstructed the progress of women’s lives (shalhoub-kevorkian, 2009). the palestinian woman is prone to become a victim following the loss of social support from her family that can result from displacement and dispersion, and the loss of her psychological, physical, and sexual security in the absence of indigenous systems of social control. the settler’s geo-political and bio-political policies distanced her geographically from services, as the state has sought to “israelize” her towns and villages and negate her social, economic, educational, and political development, obstructing her progress and stunting her growth. she lacks confidence in the state’s criminal justice system when she is subjected to violence and finds official institutions reluctant to provide her with support or to criminalize violence committed against her (shalhoub-kevorkian, 2011). consistent with processes noted by feminist scholars of settler colonialism (razack, 2002; smith, 2005), systematic violence by the state has altered the very fabric of palestinian society and shifted power relations within the community, including gender relations. this complex reality has reduced the options available to many palestinian women, especially those facing particular obstacles, such as the poor and those living in geographically remote areas. israel’s settler colonialism was also reflected in spatial policies that separated palestinian from jew, and in the enactment of special laws that, for example, govern land use and ownership (or loss), impose surveillance over family reunification, and punish the mere commemoration of the palestinian nakba (see the newly enacted nakba law, as well as the israeli citizenship law). israeli policies of geographical separation, which have driven palestinians into crowded living spaces, together with the violent transformation of space from a palestinian space into a space where language, policies, and laws serve the zionist ideology and negate the palestinian, have generated a new type of gender context. this violent transformation is reflected in control over natural resources, the confiscation of land and displacement, the “zionization” of policies (by enacting laws that facilitate the life of the israeli jew while obstructing that of the palestinian), budgetary allocations, etc. indeed, it is mirrored in the domination of all areas of life, from the routing of roads and transportation systems, the judaization of the land and space, the denial of palestinian requests for licenses to construct homes on their own land, the demolition of homes and villages, the introduction of a legal framework that sustains zionist ideology and the jewish nature of the state, to the strict controls placed on the arab education system and the dictated contents of its curricula (abu saad, 2004a, 2004b; mazawi, 2004; shalhoub-kevorkian, 2009). the status of palestinian women in the israeli economy is reflected in the fact that most of the women who live in abject poverty are palestinian. according to official israeli statistics, the state’s investment in a jewish child’s education is several times higher than its investment in the education of a palestinian child (abu-saad, 2004a). there is a gap of close to 20 years between palestinian and jewish education in israel (in terms of budgetary allowances, availability of classrooms, equipment, etc.), and palestinian girls are the most adversely affected (abu rabia-queder, 2004). according to a report issued by physicians for human rights in april 2009, the palestinian community in the naqab has the highest mortality rate among mothers and children during childbirth, and rates of illness among palestinian women are the highest in the state, while their access to health services is the lowest (daoud, 2008). furthermore, this feminization of poverty renders palestinian women vulnerable to co-optation policies, as found in the israeli “civil service”, which offers financial support to otherized, poor and needy women, yet camouflages the state’s aim of erasing palestinian identity, and creating additional punitive measures against the otherized. the impact of cultural, national and social erasure is apparent in israel’s policies of “divide and rule,” for example in the case of violence against women, where it employs orientalist cultural and culturalizing analyses to suggest that such violence is endemic to arab patriarchal culture and to avoid remarking on the context of historical and ongoing zionist dispossessions (shalhoub-kevorkian and daher-nashef, 2013). culturalizing the analyses of violence against women contributes to the reproduction and reconstruction of a patriarchal power to further pressure and persecute palestinian women, inflicting further violence, and impeding their growth and social, political, and economic development. studies that have examined palestinian women’s perception of police reaction to violence inflicted upon them suggest that the police and the israeli judiciary system not only take an orientalist approach to battered palestinian women, but also manipulate their pain (shalhoub-kevorkian, 2004). in doing so, for example, they call or consult male relatives, abusers, or ‘notables’ to police stations, while claiming they are utilizing a “culturally sensitive” approach. calling male counterparts when women are seeking police intervention was found to increase women’s insecurity, and in some cases jeopardize their lives (shalhoub-kevorkian, 2011). my studies showed that both the police and the criminal justice system are slow to provide women with support, thereby promoting violence against them, and empowering, reproducing, and reconstructing the prevailing patriarchal structure (shalhoub-kevorkian, 2004, 2011). what kind of critical feminist theorizing is needed from palestinian feminists in israel? in examining the status of palestinian women in the jewish state, and its basis in the specific context of historical, geopolitical, biopolitical and necropolitical colonial racism, we must, as palestinian feminists, use the nakba as a central event and epistemological point of departure. in order to develop a critical analysis that takes into account the suffering of the palestinian, i believe we must explore the nature and impact of the nakba and its attendant violence, which israel used in its initial stages and continues to use. the feminist analysis i propose also calls for an examination of american, european and global support for the zionist entity in its various stages of development. such an examination must consider not only how this support condoned and reinforced the inhumane zionist discourse on palestinian suffering, but also how the ongoing denial by the international community of the justice of the palestinian cause, by invisibilizing palestinian suffering, reinforced the settler colonial regime and dispossession. the proposed feminist theorization also requires the exposure of the laws, bureaucracies, strategies and tactics used to silence and invalidate the palestinian in the jewish state. it should conclude by analyzing the series of racist bills and laws that not only infringe on palestinian public and intimate relations, as seen in the israeli citizenship law (shalhoub-kevorkian, 2012), but also outlaw the mere memory of palestinians, as found in the nakba law (adalah 2011). the establishment of the jewish state on the ruins of palestinian homes and land through ethnic cleansing, strategies of repression (such as the invocation of military rule until 1966), the ideological nullification of the palestinian entity, and its reflection in the reproduction and strengthening of palestinian patriarchal thought and practice, have all shaped the nature of the challenges that face palestinian women, and feminists. what is meant by viewing the nakba as a galvanizing event and analytical point of departure? and how does the concept of the “physics of power” further our feminist analysis and practice? to deconstruct the repercussions of the nakba over the past 66 years—which include the silencing of voices advocating the right of return, denial of the right of return to refugees, the gagging of the indigenous population, the occupation of the west bank, jerusalem, and gaza strip, and the relentless onslaught of state violence—we must first comprehend the effect of recurrent traumas and structural injustice on the collective vision of the self and on gender roles and policies. the perception of the palestinian, even those individuals who are “citizens” of the state, as a permanent security threat to israel, which in turn requires that he/she be dominated and “caged”, has lent additional urgency to the need to find ways to empower the self and the community, and give it space to breathe. however, settler colonial ideology and the reluctance of the international community to extend assistance to the palestinians has strengthened the matrix of colonial power and helped build the jewish state, while at the same time increasing the burden shouldered by palestinians. trumpeting the state as a democratic one and publicly promoting the notion that the israeli jewish woman enjoys absolute equality with men, while contrasting this starkly against an image of the palestinian woman who is relentlessly repressed by a “backward” patriarchal palestinian social structure, are classic strategies of colonial regimes, which deliberately set out to break the unity and solidarity of colonized communities (thobani, 2012; perera and pugliese, 2012; razack, 2002; sarkar, 2009). to this end, cultural explanations were deployed to obfuscate israel’s political injustices, while calls were made for “the salvation of the palestinian woman from the oppression of the palestinian man” (see also abu-lughod, 2002). the status of palestinian women was manipulated, and they were seen and presented as emblematic of the “backwardness” of their society. in parallel to such policies of demoralization and demonization, the zionist entity has demonstrated its “willingness” as a “democratic state,” to provide services to “liberate” the palestinian woman from the oppression of the palestinian man and patriarchy. at the same time, it has pursued the painful processes of confiscating palestinian land and demolishing homes, in fulfillment of the state’s plans to judaize the territory and erase its palestinian identity. the smothering of the internal palestinian economy by the state, its refusal to grant work or building permits or provide transportation services to the palestinians, and their subjugation to a distinctly inferior legal reality, have all stunted the ability of palestinian society to develop in the present, or plan for the future. this logic of elimination was compounded by the obliviousness of the international community to the suffering of the palestinian people in its homeland, except when this suffering stems from within the community itself, as in the case of male violence against women. on each occasion that the palestinian individual has attempted to resist (such as on land day in 1976, or in october 2000, when israeli police killed 13 palestinian “citizens of the state” who stood up against state violence), the powerful have sought to create a physics of local and global power that excludes this palestinian individual as a permanent “security threat” to the “democratic, peace-seeking” state. the designation of the palestinian as a “security threat” and someone to be feared is a racialized fabrication employed by proponents of the colonial eliminatory ideology. it has been used to justify the expropriation of palestinian land, hinder the palestinian economy, and judaize the galilee and the naqab. it has also served as a pretext for reducing and controlling palestinian space, imprisoning the palestinians inside geographical cages patrolled by the jewish state, and establishing dominion over the physics and movement of power. the word “physics” (derived from the greek word, physis) means the knowledge or science of matter and its motion through space and time. the “physics of power,” as i present it in this paper, refers to the study and analysis of the visible and hidden characteristics (an analysis of the history and present) of the sources of motion, influence, and power. it should be accompanied by an analysis of the emerging and shifting realities that shape palestinian women’s reality. thus the application of the term “physics of power” in palestinian feminist analysis, as proposed in this paper, requires the adoption of a cognitive, analytical, and empirical approach (in history, economics, political geography, and gender) based on the day-to-day life experiences of men and women in palestinian society. such an approach will enable us to gain insight into and interpret the palestinian struggle through the challenges, obstacles, dilemmas, and laws that dominate and/or influence palestinian feminist thought and action in the zionist state (e.g., smith, 2007). it also entails understanding the historical and present mode of accumulation by dispossession (wolfe, 2012). employing the concept of the physics of power can help feminists gain a thorough understanding of the laws and the driving forces behind palestinian feminist action at the level of daily life. such an understanding allows feminists to interpret occurrences in daily life within intimate spaces like the home, family, or educational institutions, as also in the workplace and political space. these occurrences can then be connected to the general geo-political as well as the local public context by deconstructing and analyzing alliances built on common identities and interests, to reveal their concentration or distribution in various forms of feminist resistance. for example, in order to understand the low rate of palestinian women’s participation in the israeli labor market, we must deconstruct the structural factors that hamper or limit their employment or opportunities to develop products, or open a company or a workplace. similarly, to understand the rate of unemployment among academic palestinian women, as well as women’s enrollment in education, we must probe the factors that facilitate culturalization and orientalization, or provide incentives for education and employment, in terms of budget allocations, the development of disciplines that promote the entry of women into the labor market, etc. however, we must also identify those structures that coopt and mute women’s voices and block their indigenously oriented development, including structures that deny the historic and ongoing injustice against palestinians. if we are to analyze the prevalence of marriage among young girls, for instance, we should examine not only the impediments imposed by patriarchal society, but also the wider circumstances of the community embedded in a settler colonial structure of dispossession. the feminist reading i propose considers the issue of the dispossession of land, the militarization of palestinian space and time, and israeli geo-politics and bio-politics as feminist issues of the first order. therefore the critical discourse of palestinian feminism that emanates from that physics requires that we adopt a genealogical strategy of deconstructing and analyzing the structures of oppression and the political work that they perform. it also requires the development of a critical theorization of the physics of power at work at various levels. reading the map of this physics, its strategies and techniques, also demands deeper consideration if we are to gain a broader understanding of the movement of global power and of the forces that are latent and influential in matters such as the demographic control of palestinians, occupation of land, ownership of capital, colonial and other interests, and power relations and global alliances and their impact on palestinian men and women. this understanding must also extend to an awareness of the stage at which the community and its members resist, internalize oppression, or accept and/or deny its existence. how can we analyze and confront the racism of the historical silence of the majority of israeli feminists towards the historical injustice and current violence faced by palestinian feminists? to understand the physics of power means to understand the matrix of geopolitical and biopolitical power, in order to highlight the protection provided to the ideologies and strategies of domination and control deployed by the powerful. to comprehend this physics, one must first understand its workings, and its strategies of protecting and ensuring the survival of a certain power. understanding this physics also entails a deep, wide-ranging understanding of the immoral position taken by the greater part of israeli feminist analysis, which does not address zionist settler colonialism prior to, during and after the nakba, despite its role in violating the rights of palestinians in general and of palestinian women in the jewish state and in dispersing their people throughout the world. on the contrary, in many cases israeli feminists have supported these violations, or at best remained silent about them. the majority of israeli feminists have produced feminist knowledge that embarks on feminist action that contemplates palestinian suffering only since the second occupation of 1967, i.e. the occupation of the east jerusalem, west bank and gaza strip. some israeli feminists did not even take this military occupation into consideration. for most israeli feminists, crimes against humanity conducted during the nakba period and afterward, the displacement, dispossession and dispersion, and the state’s crimes against palestinians, are simply discounted (bar and ajzenstadt, 2010; radai, 2008; bilsky, 2004; kamir, 2004) constructing a feminist epistemology and praxis requires developing a new awareness of the physics of power. it entails understanding the nature and significance of solidarity with the dispossessed, something that global feminism, international law, and israeli feminism have so far failed to do. an analysis of the everydayness of gendered suffering inscribed on women’s bodies and lives challenges global justice or the absence thereof, and lifts the ever-lasting veil over global abuses of power. it examines the role of war crimes (from the 1948 massacres in deir yassin, kafr qassem, tantura, and elsewhere to the siege and invasion of gaza in 2009, and the continuous dispossession in the naqab, east jerusalem and beyond) in serving and destabilizing the physics of global and local power and exposes their impact on social structures and patriarchal power. such an analysis, therefore, constitutes the core of my critical inquiry, as it refuses to regard palestinian women as ‘present absentees’ in feminist analysis. critical feminist inquiry further requires the development of an understanding of the ongoing nature of these historical abuses, in terms of the justice of the palestinian cause and the duty and right of resistance. it also calls for the deconstruction of cultural ideologies that are marketed and sold globally at an exorbitantly high cost to palestinians. israeli feminists live a life of relative ease at the expense of palestinian suffering, which they look through without making any concrete political intervention (thobani, 2012). they do not see (or perhaps they pretend not to notice) the repercussions of the events of the nakba as a central issue for feminist action and theorizing. their refusal to acknowledge the effects of incessant violence/oppression and the daily practices of resistance employed by the palestinian woman, on whom the global and local (including the “feminist”) physics of power has imposed itself, is immoral and, crucially, not feminist. i would argue that one can’t define her/himself as a feminist while turning an entire nation, and an ongoing injustice and inhumanity, into ‘present absentees’. conclusion palestinian feminism as set forth in this paper underlines the importance of widening the critical feminist lens to account for the physics of power, which involves understanding the geopolitical and economic context that has turned humans into commodities in the hands of the dominant powers. this same context has also turned the principles of “western and israeli democracy” into a commodity that is marketed for the purposes of supporting israel’s eliminatory logic and policies. an understanding of the physics of feminist power calls for (a) the deconstruction of feminisms that have refused to regard the nakba as a focal analytical and actual source of feminist theorization and (b) defiance in the face of global, regional, and local amnesia towards the palestinian right to life in the face of israel’s necropolitical regime of control, and (c) the fight against the relegation of crimes against humanity to ‘present absentee’ status in the face of global and settler colonial physics of power. understanding the physics of power, as proposed in a critical palestinian feminist analysis, requires an acknowledgment that the jewish state could not have been established and can not continue to exist as a jewish state other than through force, sociocide, and a geopolitical, biopolitical and necropolitical regime of dispossession. the jewish state is not content with what it has achieved thus far; it has not yet completed its project of militarized settler colonialism, and its survival depends on its ability to crush all opposition. to stop such dispossession requires building a new and viable feminist discourse and political praxis to address the complex reality of such global and local 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(2004). “the mere actualization of the palestinian ‘claim to return’”, in “ansambel”: the identification and examination of central themes in national security (haifa: haifa university national security studies centre). (hebrew). thobani, s. (2012). “empire, bare life and the constitution of whiteness: sovereignty in the age of terror”. borderlands, 11(1), 2-30. wolfe, p. (2012). “purchase by other means: the palestine nakba and zionism’s conquest of economics”. settler colonial studies , 2(1), 133-171. yacobi, h. (2002). “the architecture of ethnic logic: exploring the meaning of the built environment in the ‘mixed’ city of lod – israel”. geografiska annaler: series b, human geography, 84(3-4), 171-187. yiftachel, o. (2006). ethnocracy: land and identity politics in israel/palestine. (philadelphia: university of pennsylvania press). zureik, e., lyon, d. and abu-laban, y. (2011). surveillance and control in israel/palestine: population, territory and power (new york: routledge). * director of the gender studies program at mada al-carmel and lawrence d. biele chair in law, the faculty of law, institute of criminology and the school of social work and public welfare at the hebrew university of jerusalem. email � hyperlink "mailto:msnadera@mscc.huji.ac.il" �msnadera@mscc.huji.ac.il�. an earlier version of this paper was published by mada al-carmel: � hyperlink "http://mada-research.org/en/files/2009/10/jadal4/jadal4-eng/jadal_shalhoub-kevorkian_final.pdf" �http://mada-research.org/en/files/2009/10/jadal4/jadal4-eng/jadal_shalhoub-kevorkian_final.pdf�. __________________________________________________________________________________________________________________ 18 __________________________________________________________________________________________________________________ 1 antonella picchio, 'social reproduction of human beings: a feminist perspective' feminists@law is pleased to launch the first in a series of online guest lectures that trace the (dis)continuities between the debate on immaterial labour and value which originated in italy in the 1970s and the current debate on precarity/precariousness which has more recently emerged as a central concern of transnational feminist scholarship and activism (see 2007 special issue of feminist review). reflecting on this intellectual/political trajectory acquires particular relevance today, with the crisis of social reproduction advancing in europe as elsewhere. in the first lecture, antonella picchio draws on classical political economy to explore the present capitalist tension between production, rent and profit on the one hand and social reproduction on the other. far from glorifying care and domestic labour as the expression of women's self-sacrifice, feminist theorising on social reproduction is central to struggles over the re-definition of life and its 'common' sense. we hope that this series will generate further discussion in this journal and beyond. antonella picchio from donatella alessandrini on vimeo. antonella picchio is professor of political economy at the university of modena and reggio emilia. margaret davies, 'persons and property' this is an audio recording of an open lecture given by professor margaret davies, leverhulme visiting fellow in the kent centre for law, gender and sexuality, at the university of kent on 18 january 2012. the lecture is introduced by deputy vice-chancellor, professor keith mander. the lecture itself commences at 4.38 feminists@law · margaret davies margaret davies is a professor of law at flinders university, adelaide, australia. lectura de apoyo 9 alda facio a magna carta for all women ________________________________________________________________________________ feminists@law vol 1, no 1 (2011) ________________________________________________________________________________ a magna carta for all women alda facio* i. introduction this article is intended as an introduction to the fascinating world of women’s human rights through one of the most important instruments women around the world have for the promotion and defense of our humanity. it is divided into three parts. the first part describes the nature and content of the convention on the elimination of all forms of discrimination against women (cedaw) itself, followed by an introduction to the committee that monitors the implementation of the convention by those states that have ratified it. the third part introduces the optional protocol which is the complaints mechanism set up to give women the possibility to communicate to the cedaw committee those discriminatory acts which they believe violate their rights as set out in the convention. understanding the convention together with these two mechanisms can make it the most important instrument for the realization of women’s rights in every culture and region of the world. if the cedaw convention has not yet achieved this status, it is because too many women have not seen its potential. i sincerely hope that this article may move things in that direction. ii. the convention on the elimination of all forms of discrimination against women (cedaw) on december 18, 1979, the cedaw convention was adopted through general assembly resolution 34/180. this came after only four years of drafting by the commission on the status of women (csw) and the third committee of the united nations general assembly, but after years of considerable pressure from women’s movements, particularly from those of latin america. in this region, women had spent years lobbying for a regional convention on women’s rights which has still not been drafted but they also lobbied csw to take the initiative of creating a new convention. on july 17, 1980, in a special ceremony carried out during the second world conference on women in copenhagen, the convention was signed by 64 states with two states ratifying it that day: cuba and guyana. eighteen other states quickly ratified the convention. following the successful ratification of 20 states, cedaw entered into force on september 3, 1981. a unique legal, international, and human rights instrument, cedaw unified the dispositions of other un instruments in relation to the rights of women. it is known as the international magna carta of women’s human rights because it is the first international instrument that explicitly and implicitly includes all of women’s human rights and prohibits all forms of discrimination on the basis of sex or gender. it is commonly accepted that all international human rights instruments prohibit discrimination on the basis of sex and guarantee equality to all human beings, but this has not been sufficient for guaranteeing all women the protection of all our rights through the other instruments and their protection and monitoring mechanisms. this is due to the fact that the other instruments prohibit discrimination with respect to the enjoyment of the rights they establish. however, the manner in which they establish human rights is androcentric. in other words, the rights set forth in these other instruments have been conceptualized from the reality of men’s lives, while those of cedaw take into account the lived experiences and needs of women. and even though not every human right is explicitly mentioned in the convention, all women’s human rights are included implicitly because discrimination towards any woman, understood as any act that violates any woman’s human right, is prohibited in all spheres of life, including discrimination that is carried out on the basis of the intersection of sex/gender with class, ethnicity, abilities, sexual orientation, gender identity, age, or any other factor or condition. in other words, the other international instruments that guarantee equality, non-discrimination, or prohibit arbitrary distinctions on the basis of sex do not create rights for women that are designed specifically for our everyday reality. instead they offer us the possibility of exercising, on the same terms as men, the rights that have been recognized for men. while most of these rights are inherent to the human condition and are therefore necessary for women as well, there are rights, or interpretations of these rights, that only we as women need, whether the reason is based on our sexual condition, gender, or more importantly the historic inequalities of power between men and women. thus, cedaw is the first human rights instrument that takes as its starting point this historic inequality. even though gender and a gender perspective were not spoken of explicitly while cedaw was being developed, it can be said that cedaw is an instrument with a gender perspective. this instrument is important and necessary for many reasons, but in my opinion there are at least six that place cedaw in a unique category. 1. it expands state responsiblity. precisely because it has a gender perspective, cedaw is the first international instrument that expands state responsibility to acts committed by private persons, corporations or non-state institutions or non-governmental organizations. this is very important because we know that discrimination against women and the violation of our human rights is not limited to acts committed directly by public officials at the state level. of course, women also suffer human rights violations through direct state action. yet even in this regard it has been difficult to make states accept responsibility for their actions. for example, public officials use sexual violence to secure access to certain privileges, and the military employs it as a tactic to win wars. until recently these acts were considered individual acts that were not attributable to the state. but according to the concept of state responsibility established by cedaw, such acts are attributable to the state because the state, having ratified cedaw, is obligated to ensure that such acts do not occur, at least not systematically or systemically. just as important as the above is that the notion of state responsibility established by cedaw has served as a precedent for extending responsibility to other entities that are as powerful as or more powerful than states. this is especially important in a privatized and globalized world where governments and the rule of law are endangered and where transnational corporations sometimes have more power than many states. 2. it requires states to adopt concrete measures to eliminate discrimination against women. under international human rights law, states are obligated to respect, protect and fulfill all those rights under a convention that the state has ratified. therefore, according to article 2, states parties must address all aspects of their legal obligation to respect, protect and fulfill women’s right to equality and non-discrimination. the obligation to respect requires that states parties eliminate laws, policies, regulations, programs, administrative procedures and institutional structures that directly or indirectly result in the unequal enjoyment by women of their civil, political, economic, social and cultural rights. the obligation to protect requires that states parties protect women against discrimination by public or private actors and take steps directly aimed at eliminating customary and all other practices that harm women or perpetuate the notion of inferiority of the female sex, or reinforce stereotyped roles for men and women. the obligation to fulfill requires that states parties take a wide variety of steps to ensure that women and men enjoy equal rights in, by and under the law as well as in their daily lives, including the adoption of temporary special measures in line with article 4(1) of the convention and general recommendation no. 25 . this entails obligations of means or conduct and also obligations of results. the obligation of the state includes an obligation not to cause discrimination against women through acts or omissions because discrimination can occur through the failure of states to take necessary legislative measures to ensure the full realization of women’s rights, the failure to adopt national policies aimed at achieving equality between women and men and the failure to enforce relevant laws. as it was impossible to explicitly spell out all the necessary measures to eliminate discrimination against all women in all respects, over the years the cedaw committee has specified in its concluding comments and general recommendations what specific measures must be taken for cases that are presented in reports submitted by states. for example, in general recommendation no. 21, the committee extended the concrete measures that states should take in relation to marriage and family relations by establishing, inter alia, that laws or customs that do not consider the property accumulated during de facto unions as conjugal property should be repealed. it is thus through recommendations that solutions are given to specific problems such as inequality between the legal treatment of conjugal property and the property of de facto unions. although the issue is not specifically addressed in article 16 of cedaw, in light of articles 1 and 2, it is understood that article 16 requires the state to not only take measures to achieve equality between men and women with respect to our rights during marriage and upon dissolution, but also to guarantee the same rights to women living in de facto unions. 3. it permits temporary measures, “affirmative action” or “corrective measures”. to achieve the goals of cedaw and due to recognition of the historical imbalance of power in the enjoyment of human rights between men and women, as well as the fact that treating men and women exactly the same has not resulted in eliminating discrimination, article 4 of cedaw provides that states may take temporary special measures to accelerate the achievement of equality between the sexes without their being interpreted as discriminatory against men. the reasoning behind the corrective measures in cedaw is that the systemic nature of discrimination against women has made it impossible to eliminate such discrimination without corrective measures. because of the historic and systemic unequal distribution of profit and power, an unequal provision of certain instruments is required. for cedaw, the ultimate goal of corrective measures is to create a society where women receive equal respect, enjoy our human rights equally with men in all areas, and the historical imbalance of power between the sexes has been completely eliminated. for that reason the measures are transient and must be eliminated the moment when real equality between men and women has been achieved. to create this egalitarian society it is essential to understand that the starting point is asymmetrical. that is, men and women do not start with the same opportunities for socially constructed reasons. therefore the application of neutral rules leads to unequal results. not taking into account that our societies are hierarchical and that those with the most power are perceived as models for humanity ensures that those people who deviate from the model will be treated in a deficient manner. and if we realize that the human model of our societies has traditionally been the man, we can understand that women are treated in deficient ways when our rights are structured in a neutral or identical way to those of men. that is why cedaw acknowledges the need for affirmative action or corrective measures. 4. it acknowledges the role of culture and traditions in the maintenance of discrimination against women and requires states to eliminate stereotyped roles for men and women. cedaw recognizes the important role played by culture, tradition, religion, customs, and practices in restricting the rights of women. therefore, states should take appropriate measures to eliminate stereotypes and practices relating to the roles of men and women that promote a concept of inferiority or superiority of one sex with respect to the other. cedaw also provides that the state must ensure that family education imparts the belief in the need to share equally in duties and in the raising of children, and that in all cases, parents should be guided by the interests of their children. all of this means that the state must take measures to eliminate stereotypes and conceptions of inferiority of women in all fields. if the state does not do this, it is responsible for the discrimination that can occur against women as a result of these stereotypes, practices, customs and conceptions. 5. it defines discrimination and establishes the concept of substantive equality. the contents of cedaw revolve around three fundamental concepts or principles: equality between the sexes, non-discrimination against women in all its forms, and state responsibility for achieving equality and eliminating discrimination. put another way, the goal or objective of cedaw is the elimination of all forms of discrimination against women to achieve gender equality in all fields. article 1 defines what should be understood as discrimination: “for the purposes of the present convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” this definition is critically important for the following reasons: · the definition becomes the legally accepted definition of discrimination. this means that judges and other public officials cannot create their own definition of what is discrimination against women. true, this definition automatically becomes part of national law after ratification only in monistic states, but even in dualistic states, judges and other officials must be guided by its principles even before the state has domesticated the convention. · it establishes that discrimination can disguise itself in various ways: as a distinction, an exclusion, or a restriction, which alerts us to a variety of discriminatory behaviors that can present themselves to women at times even in the form of a “right” or as a form of “protection” against male violence or domination. · it determines that a discriminatory act is one that has the “effect” or “purpose” of violating the human rights of women. this means that not only those acts that have the intent (purpose) of discriminating, such as laws that establish that married women cannot own property, etc. are to be prohibited but also acts or omissions that may not have the intent to discriminate but result in (have the effect of) discrimination against women, such as laws that “protect” women by prohibiting them from carrying out hazardous work or working night shifts, etc. or when the state fails to make distinctions between men and women or between different women that result in the discrimination of all or certain groups of women. also, the definition prohibits not only discriminatory acts that have been committed, but also any attempts to discriminate. · the definition states that the discriminatory act can have differing degrees, meaning that rights can be partially “impaired” or completely “voided.” thus cedaw prohibits the total negation of a right as well as the denial of certain aspects of a right. an example of the latter would be that women can be nationals of a country but they cannot pass on nationality to their children. · the definition states that the discriminatory act can occur at the three different levels of a right’s existence: at the level of the recognition of the right, or at the level of enjoyment, or exercise of that right. the first level refers to the moment of creation of laws or policies that establish rights. the second refers to the needs that are satisfied with that right. the third, the active aspect of the right, implies that there should be a mechanism where the holder may report a violation of her right and obtain reparation for it. this means that cedaw requires the state to: 1 – recognize the rights of women in domestic legislation, 2 – provide the material and spiritual conditions so women can enjoy our rights, and 3 – create the mechanisms to allow women to report violations and obtain reparation. · it defines discrimination as an act that violates the principle of equality and the woman as a legal subject who is equal to man with respect to human dignity, establishing a concept of equality that is not androcentric but rather based on the protection of the human rights of women. · it prohibits discrimination in all fields. the last phrase of the article, “or any other field,” clearly includes the private, family or religious spheres where so many of the violations of women’s human rights occur. · it states that discrimination is prohibited “irrespective of our marital status” to emphasize that the convention seeks to eliminate all forms of discrimination against women, including those that occur through marriage or because of marital status. cedaw, in seeking to eliminate de jure and de facto discrimination, aims to achieve not only de jure but de facto, real and substantive equality. the goal is social transformation – social change that goes beyond legislative change, although it includes such change. moreover, de jure equality is conceived only as a means of achieving the practical realization of the principle of equality. it is important to note that even de jure equality does not always require identical treatment by law to both men and women. the problem with de jure equality has been that socially constructed differences or inequalities between men and women have been ignored. but even de jure equality takes into consideration biological differences and therefore allows different treatment by the law, when situations are different. on the other hand, if one reads the convention in light of the nairobi strategies, one can understand that the equality cedaw seeks is not limited only to achieve gender equality but rather an equality that can eliminate other forms of social inequality. for that reason the solution to the problem of discrimination against women has to identify the causes and ensure that “[c]hanges in social and economic structures should be promoted which would make possible the full equality of women and our free access to all types of development as active agents and beneficiaries, without discrimination of any kind.” this means that the state is obliged to guarantee the enjoyment and exercise of women’s human rights, which means it must take special measures with certain groups of the most disadvantaged women. in its “concluding comments” as well as in its general recommendations, the cedaw committee has been deepening and expanding the meaning of gender equality to include sectors or groups of women who experience multiple forms of discrimination or who suffer from the intersection of multiple forms of discrimination. for example, in its concluding comments to the third periodic report of venezuela, the committee urged the country to achieve equality for all women by strengthening programs to eliminate poverty, which severely affects a large majority of women in venezuela. 6. it strengthens the concept of indivisibility of human rights. another achievement of this convention is that it is a concrete example of the indivisibility of human rights, a principle that is often stated in the abstract but is rarely expressed in concrete terms. according to human rights discourse, all rights are indivisible and interdependent. it stresses that the promotion and enjoyment of certain fundamental freedoms cannot justify the denial of other human rights and fundamental freedoms. however, the reality is that more importance has been given to civil and political rights versus economic, social, and cultural rights. in cedaw, all rights appear with equal prominence to establish in a single instrument, the economic, social, cultural, civil, political, and collective rights of groups of women, in addition to the right to development for all women. moreover, it is said that cedaw, in addition to being a legal document, is a guide for development because it suggests a program of action that, if met, would bring states and society in general to a higher level of development. this idea is found in the preamble where equality of the sexes is justified as a social necessity that is essential for development. cedaw is a powerful tool for promoting women’s human rights. this convention, seen in the light of the committee’s general recommendations, the nairobi strategies, the programs or platforms of action of vienna, cairo, beijing, and durban, some economic and social council (ecosoc) resolutions, and recommendations of other human rights committees, has proven to be an effective tool for those who are trying to create an international framework for women’s human rights. at the same time, cedaw is weak in that it is the treaty with the most substantive reservations raised by states parties. some of these reservations affect core aspects of the concepts of equality between the sexes and discrimination against women that form the very basis of cedaw. there are reservations that deprive women of certain states the guarantees of equality stipulated in cedaw. there are other reservations that preserve the power of the states parties to continue to discriminate in certain fields. most often, these reservations relate to the family sphere, which is precisely where the rights of women are most commonly violated. the cedaw committee has repeatedly expressed its concern over the amount and extent of states’ reservations. and although some states have withdrawn some of their reservations, others are still enforced that are incompatible with the objectives of the convention. the problem is that cedaw, even though it expressly states in article 28(2) that “[a] reservation incompatible with the object and purpose of the present convention shall not be permitted,” does not possess a mechanism for rejecting reservations formed by states that have already ratified the convention. in my opinion, the secretary general should reject these kinds of reservations, but such has not been the case to this day. iii. the cedaw committee as with other un human rights instruments, article 17 of the convention establishes a committee composed of 23 experts who are elected by the conference of states parties every two years for four year terms. experts are not government representatives from the countries of which they are nationals, but rather people, mostly women, who are experts on the topics of the convention. in accordance with article 18, states parties should inform the committee about measures their states have undertaken to achieve the goals of the convention. one year after ratification, the state must submit its initial report. subsequently it must submit periodic reports every four years. the committee considers these reports at sessions that used to be held once per year, lasting ten days, as provided in article 20. in turn, the committee presents an annual report to the general assembly, through ecosoc, on the development of its work. after a committee proposal, the conference of states parties recommended to the general assembly to approve an amendment to article 20 to authorize the holding of a greater number of sessions as required. in this context, since 1993 the general assembly authorized the committee to meet provisionally for three weeks each year. since 1997, the general assembly has expanded its authorization to hold two or three annual sessions of three or more weeks each in order that the committee may reduce the number of unexamined reports that have accumulated due to lack of time. the committee has issued reporting guidelines to assist states in preparing these reports. according to the guidelines, the initial report should provide a detailed and comprehensive description of the situation of women in that country at the moment of the document’s submission. the purpose is to provide a benchmark against which further progress can be measured. subsequent periodic reports are intended to update the previous report, detailing significant developments that have occurred over the past four years, identifying key trends and obstacles to cedaw’s full implementation. initial reports are presented by a representative of the country who can also make a supplementary presentation of materials not included in the report in order to update the committee on what has transpired since the report was submitted months earlier. through “constructive dialogue,” as the committee calls it, committee members may ask the representative to clarify or expand any question concerning the report or the presentation itself. since 1990, periodic reports have been examined by a working group composed of five members. the working group prepares questions to guide the committee when it examines the report. these questions are sent in advance to the government to answer in writing before or when it submits its periodic report. the reporting process is public and each year there has been increasing interest in these sessions by ngos, both international and those from the countries that present their reports. the committee has organized its work with the goal of maximizing the amount of information presented on each country. thus, it has invited specialized un agencies to submit reports for consideration. further, every year unifem, unicef, undp, unesco, fao, ilo, unfpa, etc. submit reports with respect to their areas of focus in relation to women of the world or about the country submitting its report. a few years ago, the committee decided to invite ngos to provide general and specific information on the situation of the countries whose reports were being examined, both through informal sessions as well as reports prepared by national ngos with the help of international organizations such as iwraw-asia pacific. recently, the committee has also decided to ask states to report on one or two areas of concern which it calls follow up reports. the committee has also asked states to prepare exceptional reports due to special circumstances faced by women in a country that is not due to report at the time of the special circumstances. the rendering of the reports by the government representative has enabled the committee to develop what it calls a “constructive dialogue” with them. this is done at a session open to the public where committee members pose questions and comments to the government representatives. these sessions can be very enlightening to some government representatives who before then had not thought that they were not complying with the convention. the committee’s review of national reports is not intended to be a confrontational or adversarial process. great efforts are made to engage in dialogue. for that reason the committee never accuses a state of violating cedaw, though it does point out deficiencies during the question and answer session. at the conclusion of these constructive dialogues, the committee reviews the information received in response to their questions to the state party, as well as information provided during the dialogue by the representatives of that government, un agencies, national human rights institutions, and national and international ngos. the committee undertakes this review during a private meeting. it also decides which of the concluding comments and observations should be submitted to the state, which will later be included in the committee’s annual report to the general assembly. from its analysis of the information from the constructive dialogues and various reports, the committee issues its general recommendations. to date, these general recommendations have not referred to specific states but are addressed to all states parties to indicate what specific measures can be taken to comply with their obligations under the convention. the first general recommendations issued by the cedaw committee are brief and general in nature. however, at its tenth session the committee decided that it would make recommendations on specific articles of the convention or on issues that were not explicitly covered by it. for instance, in 1992 the committee addressed the issue of violence against women through general recommendation no. 19, which defines such violence as a form of discrimination against women that is thus prohibited by cedaw. other important general recommendations followed. in 1994, the committee developed general recommendation no. 21 on equality in marriage and family relations, in 1997, no. 23 on political and public life, in 1999, no. 24 on women and health; general recommendation no. 25 on temporary special measures was adopted in 2004, no. 26 on migrant women in 2008 and in late 2010 two new recommendations were adopted, no. 27 on older women and no. 28 on the core obligations of states parties under article 2. all of these general recommendations have made the convention a real living document able to address not only the new forms of discrimination that appear as older forms are eliminated but all those forms of discrimination which were not considered as such in the past. iv. optional protocol to the cedaw convention in 1991, ten years after cedaw entered into force, as part of the recommendations of a meeting of experts convened by the division for the advancement of women, the un secretary-general was requested to consider the possibility of creating a mechanism that would allow victims of violations of cedaw to send communications to the cedaw committee. it was a right that victims already had with respect to violations of the convention on the elimination of all forms of racial discrimination or victims of violations of civil or political rights or torture in the un human rights system. thus began a long journey towards the creation of a formal instrument separate from cedaw that would introduce a procedure for the receipt of communications and possibly an investigation procedure in accordance with the rules of cedaw. one must remember that there was considerable mobilization on the part of women towards this development at the world conference on human rights in vienna and at the world conference on population and development in cairo. at both conferences, governments agreed to ask the un general assembly to initiate the negotiation of such a mechanism. in july 1995, ecosoc decided that such a mechanism could be contained in a voluntary or optional protocol to cedaw. the world conference on women held in beijing reiterated the call to support a protocol, and in 1996 negotiations began in a working group that met until the commission on the status of women (csw) approved the protocol in 1999. the protocol opened for signature that year on december 10. on december 22, 2000, it entered into force three months after its tenth ratification, as required by article 16 of the protocol. but why was this optional protocol necessary if more than 160 countries had ratified cedaw which legally established the obligation to eliminate discrimination based on sex/gender on the part of states? there are several reasons: · existing international mechanisms for the implementation of cedaw were inadequate or insufficient. · while all other un human rights instruments prohibit discrimination based on sex, thus enabling individual victims of such discrimination to send their submissions to committees that have the capacity to receive them, these committees do not necessarily have the expertise to truly understand individual cases or the extensive violations of women’s human rights. before the entry into force of the optional protocol, there was no possibility for the review of such cases by an independent expert body to incorporate in the analysis a gender focus and perspective of women's human rights. · an optional protocol would promote a more effective implementation of cedaw through the expansion of its interpretation and the practical application of the convention. · the protocol would allow for redress in the cases of individual communications. the possibility of international recourse is particularly significant for women because, in general, national laws do not protect women against violations of basic rights, such as gender discrimination in the labor market or family law. · the optional protocol would create greater public awareness of international guarantees of women’s human rights and draw greater attention to cedaw on the part of individuals, groups, and women’s non-governmental organizations. · the protocol would contribute to the integration of women’s human rights in un human rights programs to create appropriate legal doctrine. other un human rights organizations could build on the cedaw optional protocol to conduct a deeper analysis of the nature and scope of specific aspects of gender discrimination. · an optional protocol would put cedaw on an equal footing with other international treaties that have communications procedures. as is apparent, there were many reasons that led to the adoption of the optional protocol. these same reasons should lead to universal ratification of this important instrument. if there are so many reasons for an optional protocol and if almost all states morally obligated themselves to ratifying it after having adopted the platforms of action of vienna, cairo and beijing as well as the protocol itself, why is there still resistance to ratifying it in certain countries? to understand this resistance, we must remember that a protocol to cedaw was considered unnecessary for many years because it was assumed that simply declaring equality between men and women would result in the elimination of discriminatory practices and gender violence that has been exerted systematically and historically against women because of our gender. it was after many protests and much negotiation that an understanding was reached that the guarantees of equality and non-discrimination do not create concrete rights for women that take into account our daily realities, although they do offer women the opportunity to exercise, on an equal footing with men, universally recognized rights inherent to the human condition that men and women share. as has already been mentioned, the protocol entered into force on december 22, 2000, after ratification by the tenth state party to the convention. upon ratifying the optional protocol, a state recognizes the competence of the cedaw committee to receive and consider applications from individual women or groups within its jurisdiction. importantly, this protocol does not provide any new rights, meaning that it does not recognize any rights that are not covered by cedaw. some ill-intentioned people have initiated a rumor that the protocol is an instrument that requires ratifying states to legalize abortion and homosexuality to scare off those people who are against full recognition of sexual rights and reproductive rights as human rights. this is not true. the protocol does not require states to legalize abortion or homosexual relationships. moreover, it does not require states to recognize a substantive right, whether it be new or old. what the optional protocol does is provide two procedures for the committee to assist states to comply with the obligations they assumed by ratifying cedaw. however, it is important to know that sexual rights and reproductive rights are already recognized in other international human rights instruments, including cedaw. the two procedures contained in the optional protocol are the following: 1a communications procedure that allows individual women or groups of women to submit to the committee claims of violations of the rights protected by the convention. the protocol establishes that to permit individual communications for analysis by the committee, communications must fulfill a number of requirements, including that the complainants have exhausted domestic remedies. 2the protocol also creates an inquiry procedure that allows the committee to investigate situations of grave or systematic violations of women’s rights. in any case, states must be party to the convention and protocol. article 10 of the protocol includes a provision that allows states to declare, when ratifying or acceding, that they do not accept the inquiry procedure. this opt-out clause was introduced because article 17 of the protocol explicitly states that the introduction of reservations to its terms is not permitted. v. conclusion because it is possible for women to be in situations where even if they are treated exactly like men they may experience discrimination as defined by the cedaw convention, and because women have specific needs in relation to our sexual condition that are created by discriminatory gender structures, a convention was necessary that not only ensured equality and prohibited discrimination but also recognized rights and outlined concrete steps to realize them. once un states parties understood this, they adopted cedaw and with time nearly all states have ratified it. however, despite the fact that cedaw is over 30 years old, the diversity and extent of discrimination against women is still not universally understood. many continue to believe that formal equality and the elimination of explicitly sexist laws satisfies the objectives of cedaw. use of the optional protocol by those women who feel discriminated against will allow for a better understanding of the multiple forms that discrimination can take. shadow reporting by more women around the world will also increase understanding. this can only bring benefits to states as well as civil society as a whole. that an optional protocol was needed does not deny the important achievements that occurred before its adoption. cedaw has been ratified by and partially implemented in all latin american states, which signifies a breakthrough, especially on the symbolic level. achievements included the repeal of many laws that explicitly discriminated against women, as well as undoing the silence around the issue of violence against women. however, with these successes inevitably arose questions about how to make these advances result in concrete changes in the lives of all women and how to pass from the statement of principles to the adoption of mechanisms to ensure compliance with the commitments made by governments and to promote awareness throughout civil society that the need for the enjoyment of women's human rights is the responsibility of society as a whole. as has been reiterated time and again by the different chairwomen of the committee, in her closing statement at the last session held in geneva in october-november 2010, ms. zou xiaoqiao, acting chairperson of the committee, said that the committee members were very pleased by the high level of attendance of ngos which once again made a significant contribution to the work of the committee. she expressed her gratitude to the ngos which had provided it with detailed information and encouraged them to deepen their advocacy for the promotion and protection of women’s human rights and the implementation of the convention. in conclusion, with the ever increasing presence of women’s ngos at the cedaw sessions in geneva and new york and the slowly increasing use of the optional protocol by women in different parts of the world, with the more substantive general recommendations to support the use of cedaw nationally to defend women’s rights in the courts and elsewhere, the cedaw convention has truly transformed itself into the magna carta for women’s human rights. it is now up to the women of the world to make it ours. * director, women, gender and justice program, united nations latin american institute for crime prevention (ilanud), costa rica. � hyperlink "mailto:aldafacio@gmail.com" �aldafacio@gmail.com�. � the third committee of the united nations oversees social, humanitarian, and cultural issues. � facio, alda, “la evolucion de los derechos humanos de las mujeres en la onu”, in press. � article 27(1) of cedaw: the present convention shall enter into force on the thirtieth day after the date of deposit with the secretary-general of the united nations of the twentieth instrument of ratification or accession. � although the convention speaks of discrimination against women in the singular, the accumulated work of the committee has clearly demonstrated that this refers to all women and that the convention therefore requires the state that has ratified it to eliminate all of the various forms of discrimination that all women can suffer, whether on the basis of sex or the intersection of sex/gender with age, class, ethnicity, disability, etc. �although the convention does not refer to discrimination on the basis of gender but rather discrimination on the basis of sex, the text of articles 2(f), 4 and 5 in particular as well as the holistic nature of the convention’s text and the work of the committee demonstrate that this refers to discrimination that any woman can suffer on the basis of her sex, gender, sexual orientation or sexual identity, or the intersection of sex with other social or biological conditions. � article 1 prohibits discrimination in “the political, economic, social, cultural, civil or any other field.” � it is true that the cedaw convention, as all other conventions, only refers to sex-based discrimination, but as noted above, interpreting article 1 together with articles 2(f), 4 and 5(a) indicates that the convention covers gender-based discrimination against women. � the classic example of this is the need to reinterpret the right to be free of torture. this right, when interpreted from the experience of women who have suffered domestic violence, is understood to include such violence. � article 2(e) establishes that states are required to “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.” � article 2 is central to the full implementation of the convention since it identifies the nature of the general legal obligations of states parties. the obligations enshrined in this article are linked with all other substantive provisions of the convention, as states parties have the obligation to ensure that all the rights enshrined in the convention are fully respected at the national level. this important article, as all other articles of this convention, should be read in the light of the definition of discrimination in article 1and in conjunction with articles 3, 4, 5 and 24. in addition, the scope of the general obligations contained in article 2 should also be construed in the light of the general recommendations, concluding observations, views and other statements issued by the cedaw committee, including the reports on the inquiry procedures and the decisions of individual cases. � general recommendation 21 (13th session). � see rodríguez, marcela, “igualdad, democracia y acciones positivas” in facio and fries, ed. genero y derecho, ediciones lom, chile, 1999. � sometimes de jure equality is identified with formal equality but i would argue that formal equality is the kind of equality that does not take into consideration any differences between two situations while de jure equality does take into consideration some differences, especially biological ones. � at the time the nairobi forward-looking strategies for the advancement of women were understood as the plan of action to implement cedaw, though now the beijing declaration and platform for action is more commonly referenced. � paragraph 53 of the nairobi strategies. � see cedaw/c/1997/l.1/add.6. � see freeman, marsha, “women, development and justice, using the international convention on women’s rights” in kerr, ed. ours by right, the north south institute, canada, 1993. � understanding of course that development is not confined solely to economic development but also related to the balancing between the economic and social. � for example the reservation made by morocco to article 2 states “it should be noted that certain of the provisions contained in the moroccan code of personal status according women rights that differ from the rights conferred on men may not be infringed upon or abrogated because they derive primarily from the islamic shariah, which strives, among its other objectives, to strike a balance between the spouses in order to preserve the coherence of family life.” � the other instruments in force as of november 2010 are: the international covenant on civil and political rights, the international covenant on economic, social and cultural rights, the international convention on the elimination of all forms of racial discrimination, the convention against torture, the convention on the rights of the child, the convention on the rights of migrant workers and members of their families, and the convention on the rights of persons with disabilities. � to find out more about the cedaw convention or committee and how to participate in shadow reporting go to iwraw asia pacific’s website at � hyperlink "http://www.iwraw-ap.org/index.htm" �http://www.iwraw-ap.org/index.htm�. � article 16(1) the present protocol shall enter into force three months after the date of the deposit with the secretary-general of the united nations of the tenth instrument of ratification or accession. (2) for each state ratifying the present protocol or acceding to it after its entry into force, the present protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession. � as of november 2010, 100 states parties to cedaw have now ratified the optional protocol. � as of november 2010 the committee had decided 14 cases and made one inquiry. to read the decisions go to � hyperlink "http://www2.ohchr.org/english/law/jurisprudence.htm" �http://www2.ohchr.org/english/law/jurisprudence.htm�. � to see the report on mexico produced by the committee under article 8 of the optional protocol to the convention, and reply from the government of mexico, go to � hyperlink "http://www2.ohchr.org/english/bodies/cedaw/inquiry_procedure.htm" �http://www2.ohchr.org/english/bodies/cedaw/inquiry_procedure.htm�. . � as of november 2010, 186 states had ratified the convention. � see the full press release of the 47th session of the cedaw committee at � hyperlink "http://www.ohchr.org/en/newsevents/pages/displaynews.aspx?news" �http://www.ohchr.org/en/newsevents/pages/displaynews.aspx?news�. ________________________________________________________________________________ 14 ________________________________________________________________________________ 15 feminists@law vol 2, no 1 (2012) __________________________________________________________________________________ introduction kate bedford[footnoteref:1]* [1: * senior lecturer, kent law school, university of kent, uk. k.bedford@kent.ac.uk ] in june 2009 a coup occurred in honduras. the left-leaning president, manual zelaya, was ousted by political opponents backed by the military, and forced into exile. honduras was expelled from the organization of american states, and many countries cut diplomatic ties. a peaceful resistance movement emerged against the coup, uniting diverse sectors of the population. an alliance of feminist groups, feminists in resistance, was formed to represent women’s voices. in the words of the group: for the women involved, resistance signifies a fight for a substantive democracy that will transform existing relationships of power and generate a new and egalitarian social pact. this goes far beyond manuel zelaya’s return. from their perspective, struggling for the restitution of the constitutional president to his office is a condition for democracy and a point of departure for the process of re-establishing the honduran state by recognizing diversity, citizen participation, gender equality, and human rights.[footnoteref:2] [2: see honduras action monitor, honduras feminists in resistance, 2009. available at http://justassociates.org/actions/honduras/hn_feministaresistencia.htm. ] although zelaya has since returned to the country, the fight for a substantive democracy continues. last year feminists@law received a submission from an academic and activist participant in feminists in resistance, breny mendoza. she wrote about the limits, and possibilities, of constitutional reform as an activist priority in the aftermath of the coup. this issue is pressing not only for honduras, but also for a range of other countries in the region undergoing constitutional reform processes that seek to involve social movement actors and achieve substantive, transformative political change. feminists@law sought out some interlocutors who have written about, and been involved with, these processes. their remit was to discuss breny’s paper, and to kick start some broader conversations about feminism, constitutionalism, and transformation in the region. breny then responded to their comments. we hope that this exercise in virtual discussion and debate will generate additional conversation, in feminists@law and beyond. __________________________________________________________________________________ fls-open access pilot issue [type text] doris buss current and future issues for feminist legal studies _____________________________________________________________________________________________ feminists@law vol 1, no 1 (2011) _____________________________________________________________________________________________ current and future issues for feminist legal studies doris buss* where to begin? each day that i open a newspaper in canada, a pressing issue for feminist research leaps out. one day it is the decriminalization of prostitution, the next day the legality/decriminalization of polygamy. the day after that it could be: the place of religiously-observant women in multicultural societies, the failure of state-provided day-care and the feminization of flexible labour. add to this any number of other issues that lurk in the background of our daily news – the renegotiation of masculinity and the ‘plight’ of the boy child; criminalization, masculinity and race; the many lives – and dimensions – of reproductive politics; the decline of ‘women’s studies’ as a field of academic endeavour and the rise of ‘sexuality studies’ – and a research agenda for any enterprising feminist legal studies scholar is more than full. over the past year or two, my approach to feminist legal studies has been shaped by an explicitly activist lens and the pressing research issues i want to focus on in my short commentary come from a two-day workshop i organized in may 2010, together with a small group of colleagues, on sexual violence and conflict in africa hosted at carleton university in ottawa, canada. that workshop brought in scholars and activists from various regions in africa and across north america. our aim in this event was to facilitate a conversation across the regional, disciplinary, scalar, and institutional divides that seem to compartmentalize current conceptions of, and responses to, sexual violence and conflict in various parts of africa. as a first step in this direction, the workshop was successful. for me personally, and as a feminist legal scholar, it left me with a number of questions and incentives for future work. first, the importance of scale. in anglo-american academic circles, there has been a recent fascination with the ‘exceptional’; the seemingly ‘law-less’ spaces created by the large arcs of geopolitics. the preoccupation with the larger-than-life making (or unmaking) of ‘empire’ has tended to divert attention, in my view, from the more immediate micro-processes of governance. there is a need for feminist research exploring the (small) spaces where women’s lives are shaped by the ‘large’ geopolitical developments that dominate newspaper headlines. a case in point, it would seem to me, is the political economy of sexual violence, particularly (but not exclusively) in the democratic republic of the congo, zimbabwe and south sudan. there is a close relationship between the quotidian business practices of western mining interests and the insecurities and violence experienced by women and girls in these regions. rather than seeing these as ‘law-less’ or ‘exceptional’ spaces, it might be more productive to consider how law, regulation, development and finance construct and impact upon these as ‘conflict zones’ or ‘failed states’. what is the relationship between capital flow and the patterns of violence, including sexual violence? what governing practices are made possible or obscured by the constructs of ‘failed states’ and ‘zones of conflict’? what is the relationship between governance and state restructuring in the global north, and the operation of mining industries in the global south? second, the political economy of women’s lives. the need for research on the political economy of women’s lives is not limited to african contexts. for those of us working in universities in the global north, the so-called ‘global economic crisis’ and the consequent slashing of government funding and services dominates our immediate lives. we are in the throes of a restructuring of the state (again). what implications will this have for women and girls? how will the liberal promise of equality, for example, fare in this restructuring? what analytical and political tools does feminism provide for naming and addressing the consequences of this latest morphing of the state and are they the tools we need? third, the place of feminist research. women’s equality, as a political and legal objective, is in a contradictory place at the moment. in anglo-american contexts, women’s equality seems to have no place on the domestic political agenda. in canada, the current right-wing government declared equality a done deal for women in the autumn of 2006, thus relieving the government of any need to fund or address programs to enhance women’s equality. in contrast, women’s equality is a cause célèbre internationally. everyone, it would seem, wants it, and there is even (some) money flowing to it. both of these developments have significant implications for feminist legal studies. the latter requires diligent research on what issues are seen as most important for women’s human rights internationally. who is framing the priorities for funding and in what terms? how is the money flowing and to where? what are the criteria by which funding is allocated and success measured? the former development – the erasure of women’s equality as a political issue in the global north – requires a much greater and more explicit commitment by feminist academics to addressing the significant gaps caused by the de-funding of civil society groups. while we as academics face our own challenges and limits, we remain in a much stronger position than activists outside the academy. what resources, however, small can we marshal to support feminist, and related, activism? and finally, one of the areas where the canadian state is de-funding both civil society and its own services is in the generation of data on women’s lives. the canadian government, for example, has moved away from collecting reliable data on a range of issues making it harder to measure certain forms of inequality. research itself has become a frontier in the battle over women’s equality. for feminist legal studies, this contestation over the very doing of feminist research will be felt most immediately in the field of human rights. how and to what end can rights strategies be used without the social science evidence demonstrating inequality, for example? but other questions also present themselves: does the existence of (and contestation over) sex-segregated data speak to the technocratic orientation of feminist policy work or represent a taken-for-granted research foundation we risk losing? who is and should be doing feminist research? and what is, or should be, the place of empiricism in feminist legal scholarship? * associate professor, department of law, carleton university, canada. � hyperlink "mailto:doris_buss@carleton.ca" �doris_buss@carleton.ca�. � for more information on the workshop and on the topic of sexual violence and conflict in africa, see: � hyperlink "http://www2.carleton.ca/africanstudies/sexual-violence-and-conflict-in-africa-workshop/" �http://www2.carleton.ca/africanstudies/sexual-violence-and-conflict-in-africa-workshop/�. ______________________________________________________________________________ 2 ______________________________________________________________________________ 1 anna moring (re)defining legal parenthood and kinship _______________________________________________________________________________________ feminists@law vol 11, no 2 (2023) _______________________________________________________________________________________ (re)defining legal parenthood and kinship: the limits of legal change in the finnish child custody act of 2019 anna moring* abstract this article examines how finland took a role as an international predecessor in separating the parent’s right of access from custody, biology and legal parenthood. it addresses the (re)defining of the legal reference fields of kinship, family and parenthood in the process of rewriting the act on child custody and right of access in finland. through an examination of the discourses of the legislative process, it shows how the finnish legislation has moved from an emphasis on biological origins towards a more flexible and individualised conception of kinship. the analysis focuses on how the child custody act works to recognise various marginalised positions, while leaving others unattended. through a close examination of the changes to the act, the article highlights the simultaneous processes of de-marginalisation of certain structures of kinship, and the marginalisation of others. the article concludes by predicting the direction of future developments in legislation concerning kinship, family and parenthood, based on prevalent trends of legal development, and the limits of what can presently be recognised by the law, and why. introduction: what is a parent? “what is a parent?” asks marilyn strathern in her influential 2011 text, before going on to discuss the orders of knowledge that define euro-american conceptions of parenthood. she claims that what preoccupies much of euro-american thinking about parenthood is a search for origins – foundations, that are simultaneously prior in time and prior in logical status (strathern 2011: 275). the question of what makes a parent, and what kinship consists of, is also relevant in finland, where the legal boundaries of family and kinship were reshaped during a process of rewriting the act of child custody and right of access (hereafter child custody act, abbreviation cca). the concepts of nature, law, origins, foundations, all enmeshed in different orders of knowledge, are crucial in analysing why and how questions of kinship and parenthood can be resolved in a very practical situation of a single, smallish state attempting to write legislation concerning the right of a child to its parents. in this article, i will ask how biological, social, juridical and affective relationships have been rethought and redefined in contemporary finnish legislation. i will analyse the case of rewriting the finnish child custody act in 2017-2019, in order to draw out negotiations between different orders of knowledge according to which kinship is legally defined. moreover, i will suggest what specific attributes need to be present in the kinship relationships that are considered worthy of protection by the state and by law. i will also look at what kinds of relationships are left unprotected, or in the shadows of legal recognition, and what it is that places them outside the scope of law. finally, i will consider the legal changes from a feminist perspective. i will relate the finnish reform to a wider nordic and european perspective and ask how the expansions brought about in the reform affect the autonomy of parenting, and how this development should be considered in terms of equality and rights (pylkkänen 2007). i will track the subtle changes in conceptions of legal kinship through several examples showing how the finnish law has gradually moved from a grounded and origin-based, natural-oriented conception of kinship to a more malleable, contextual, individual and flexible direction. in this sense, the finnish legislation is a predecessor in the european context. the finnish way of discussing parenthood and legal recognition of the child’s important relationships beyond legal kinship is rare even on a north/western european scale. what happens in finland is of interest for researchers and legislators working within other regions, as discussions in finland have led to a legal model that goes beyond legislation in other european countries, much of the united states, and elsewhere. for example, recognition of a third legal parent is possible in british columbia under some circumstances (boyd 2015), but not in europe, and the legal recognition of parenthood that is not agreed upon at birth is mostly strictly confined to adoption. thus, the new finnish law is ground-breaking, and an interesting example to consider in developing new legislation on parenthood internationally. according to the new finnish child custody act, the custody of a child can be divided in principle between an unlimited number of persons, and the child can acquire rights of access also to non-legal parents. in this slow tale of “progress”, however, some forms of kinship, parenthood or parent-child-relationships are more recognised than previously, while others have lost their legal definitional power. these developments, i claim, have significant and partly hidden aspects regarding gendered practices of parenting, family forms and normative sexualities and genders. they are also part of a more general trend in euro-american legal and social development, which is, arguably, gearing towards a wider recognition of social and actual kinship arrangements, while downplaying the importance of the biological or genetic “grounds”. in this development, conceptions of parenthood are the most crucial indicators of change. lately, the legislation around family in several western societies has been under pressure, especially from lgbtiq family movements, to change its definitions toward a greater inclusivity of different family formations (mägi & zimmerman 2015; stern, oehme & stern 2016: 79). however, the more our understanding of parenthood is shaped by the practices of care and the affects related to lived relationships, the more difficult it is to answer the question of “what is a parent?”. in all ways that matter, the sort of legal parenthood that is based on biological or genetic heritage, or the matrimonial status of the birth mother at the time of birth, seems to gradually lose its significance in determining the everyday life and lived relationships of the child (gottberg 2010: 175). however, the process is slow and not always linear or logical, and there are still multiple situations in different legal contexts where definitions of parenthood can violate existing social relationships (ferr & goldberg 2019: 152). in present-day euro-american societies, law has the power to protect relationships that are significant for people, or to cut off or break them. law also regulates the flows of property and protection post-mortem (knauer 2019: 11). thus, the question of what a parent is, both socially and legally, is crucial. but even more crucial for the children and parents living their lives among changing family and kinship relationships, is how to bridge the gap between who is socially considered to be a parent, and what sorts of parenthood arrangements the law recognises and protects. as kendra huard fershee (2014: 449-450) puts it, “arguing that gay and lesbian parents have no personal stake in seeking access to the children they co-parent is an anathema to reality”. the same, of course, is true for foster families, blended families (stepfamilies) or adoptive families as well. in the wake of kath weston’s (1997) influential work on chosen families, and janet carsten’s (2004) thinking of new kinship formations in the context of artificial reproductive technologies, i have previously (moring 2013) used the concept of “performative parenting” in analysing the specific ways that parenthood is done in lgbtiq families in the absence of legal bonds. this concept suggests that when families exist in the shadows of law, they start constructing parenthood through acts, placing a lot of weight on “doing” parenting rather than “being” one. as one non-biological mother in a same-sex partnership stated in an interview: in the beginning, i made sure to be the one holding the child as much as possible, especially in public places and when we had visitors. having the child in my arms somehow confirmed to others that i was a parent. (strömberg & stenholm 2004: 47) during the past 10 years, the role of “performative parenting” or “practising parenting” (leckey 2015; herring 2015) has become increasingly crucial also in terms of legislating parenthood. fershee (2014: 468) states that “as the law transitions toward a deeper understanding and acceptance of nontraditional families, there must be a way to allow court access to individuals who have become parents via nontraditional means”. the finnish case is a model example of how this is done: through the acknowledgement of de facto parenthood, defined through “doing” parenthood. development of the finnish child custody act before 1983, a child living in finland could only have one legal guardian and parent with custody at a time, unless the parents were married. in cases of divorce, the guardian was by default the mother, but if the parents were in agreement and obtained a court order, the father could be the legal guardian instead of the mother (he 224/1982 vp). however, in the 1970s, social practices had changed toward more equal forms of post-divorce arrangements (koulu 2014: 94-96). in 1983, the first finnish act on child custody and right of access (163/1983) was approved. according to sanna koulu (2014: 97), the 1983 reform entailed two crucial shifts: first, it prioritised agreements between parents over court decisions and gave legal parents the right to make agreements that could be enforced by municipal social committees without going through the court. second, it let the parents share custody after a divorce. these changes provided more possibilities to parents to make agreements and more incentives to reach agreements outside the court (ibid.). moreover, the 1983 custody act included a reform that is important in light of the later legal development: it stated that with a court order, custody or legal guardianship could be given to another person beside or instead of the parent(s), even when the parents had custody themselves. this development reflected the increasing belief in the importance of the presence of fathers in their children’s everyday lives. however, despite these changes, the role of fathers has not been particularly visible in statistics on parenthood preor post-divorce. finnish fathers still use only 9.7% of all parental leave days, and of all families with children, the number of children officially residing with their fathers is a mere 1.9%, while children residing with their mothers account for 18.9% of all finnish children under 18 years of age (tilastokeskus 2018). the changes in conceptions of parenthood, care and custody were reflected in the way the child custody act was applied. the possibility of giving custody to another person beside the legal parents, that was more of a parenthesis at the time of the reform, was increasingly applied to varying situations in, for example, same-sex parents’ families, foster care, or blended families. this shows how changes in law can facilitate legal recognition of changes in parenthood and kinship practices, which could not necessarily have been anticipated at the time the law was written. but it also shows how practices of parenthood and kinship, when in need of legal recognition, search for it within the existing structures of the law, even when the structures were not necessarily meant to recognise such arrangements in the first place (koulu 2014: 107). in 2015 the finnish government decided to renew the 1983 act and in june 2018 it put forward a proposal for the renewal. this proposal (he 88/2018 vp) and the subsequent changes in the child custody act (8.4.1983/361, changes in force from 1.12.2019) are the focus of this article. the new act renegotiates borders of parenthood, challenges the conceptions of legal kinship, and opens ways to further bend the limits of legal family and kinship ties. the effects of the reform of the child custody act the child custody act is the legislation that most powerfully defines the concrete possibilities of parenthood. it holds the power to grant or deprive access to “performative parenting”: acts and deeds connected to parenthood. it also defines the premises for which kinds of performative actions are required of a parent to remain eligible for joint custody post-divorce, or to claim that the child should officially reside with, or have access to them. together with the child maintenance act (laki lapsen elatuksesta, 5.9.1975/704) it provides the framework for care, support and maintenance of the child in situations where the parents do not belong to the same household. the need to renew this legislation sprung from a variety of causes. practices and structures of parenthood have changed in 35 years. one specific issue that was mentioned in all the background work for the renewal was the growing number of joint physical custody arrangements. the 1983 act was written at a time when fathers’ roles post-divorce generally were quite different from what they are today. furthermore, according to the ministry of justice, the law needed updating both in relation to custody arrangements but also to secure the relationship of the child to “both” parents after a divorce (report 47/2017). in the following sub-sections, i will go on to address two major changes in the 2018 proposal. 1. the right of access one of the major new propositions was to allow a child right of access to a person other than their legal parent. the right to access would thus be applicable also to persons who were not legal parents to the child. the proposal limited this right to a person, who has an “especially close relationship to the child”, defined as “an established relationship, comparable to that of a parent and a child” (2018 proposal §9c and explanations). as the law has only been in force from december 2019, it is as yet unclear what the courts will regard as criteria for an especially close relationship to the child. the proposal is quite vague on this point, stating only that the child could have formed this kind of relationship “for example with a grandparent who has lived in the same household or a foster parent or a previous partner of a parent” (prop 88/2018 vp, 2.2.2.). it is also stated that this relationship “typically require[es] living with the child and daily participating in the care and upbringing of the child during that period” (ibid: 55). these kinds of practices have been reinforced in several states in the united states, as well as in other european countries (romero & goldberg 2019; 2018 proposal, background). however, it is rare that the law should directly recognise the right of a non-legal parent, making it a general principle of legal access. access, again, is one of the major factors separating legal parenthood from other kinds of regulated kinship, for example custody, cohabitation, or inheritance rights. with the new child custody act, finland thus became an international predecessor in flexing the limits of legal parenthood. however, this right of access to an especially close person can, according to the proposal, only be granted through a court decision. as opposed to legal parents, who can independently make an agreement on custody, residence and right of access and have it confirmed by the municipal social committee, non-legal parents must go to court and obtain an order, even if all parties agree and there is no conflict. going through a court hearing means that the applicant must pay a court fee of ca 250 €, and the process is time-consuming. this decision was, according to a member of the committee writing the proposal, motivated by the novelty of the legislation. the thought was that if all parties agree on the visitation arrangements, there is no need for a ratified agreement. what is interesting is that according to the rationale of the proposal, a ratified agreement is considered in the best interest of the child when the legal parents make it, whereas this is not the case with non-legal parents. this shows that flexing the borders of parenthood is done with caution and the gateways to access by non-legal parents need to be safeguarded by the courts. the proposal highlights the precarious position of non-legal parents, and the cautiousness with which their claims are met. on the other hand, the difficulty of the process of attaining visitation rights works to protect the parental autonomy of the legal parents. the threshold for seeking the right to access remains high, which is bound to restrict applications to cases where the applicant is quite certain of a positive outcome. in the finnish context, one significant group claiming the right of access are grandparents. signalling that all grandparents do not qualify for right of access based solely on biological relatedness or even active presence in the child’s life may be one factor that has prompted the legislators to keep the threshold quite high. internationally, another legal issue for non-legal parents concerning their relations to their children has been standing – that is, who can bring a case to court (cf. fershee 2014; harding 2015). in the 2018 proposal, standing is given to any of the concerned parties, including the non-legal parent. during the discussions surrounding the preparation of the proposal, suggestions were made to limit standing to the social worker representing the child. this was opposed by the argument that making standing a separate issue would only create unnecessary legal obstacles, where courts would have to make a decision first on standing, instead of solving the actual issue. interestingly, this is what fershee claims that us courts are obliged to do (fershee 2014: 453). as it is, the finnish proposal gives standing to any person who claims to have a parent-child-like relationship to the child and is thus again a progressive example in an international context. in relation to the other articles in this special section, an important side-note needs to be made about the situation of grandparents. in the process of writing the act, many grandparents made claims to have a recognised right of access to their grandchildren. the national association of grandparents was represented in the follow-up group, to which the working group that worked on the proposal reported. one of the reasons that the legislation was reconsidered in the first place was the position of grandparents (the 2018 proposal, background). as anna avdeeva discusses in relation to the grandparents of “natural” parents in russia (see avdeeva in this issue), and also in the finnish legislation, the role of grandparents ended up remaining separate from that of social parenthood. the groundwork for the child custody act specifically addressed the issue of grandparents and stated that a grandparent is not automatically to be thought of as an especially close person to the child and thus eligible for legal access. however, a grandparent can be classified as a close person, if the child has resided with the grandparent for a long time and if the relationship sufficiently resembles that of a parent and a child. grandparenthood is thus also constructed as performative and as zhabenko writes in the case of russian grandparents, even a directly descending biological kinship relation is not presumed to be a ground for (legal) access. on the other hand, grandparenthood does not disqualify a person from having an “especially close relation” to the child, thus widening the generational scope whereby legal access to a child can be gained. 2. joint physical custody the second major change in the child custody act related to redefining kinship, is the possibility to register a joint physical custody arrangement (jpc, see bergström et al. 2017) in the civil registry. the proposal defines jpc as a situation where the child(ren) reside with both parents at least 40% of the time. the registration of this arrangement does not entail any significant changes or benefits as such; for example, the child still only has one official address. but this change, even before it became official, started a process of rethinking social benefits. the finnish governmental program of 2019-2023 included a proposal to give children living in jpc arrangements the right to social benefits in both of the families, as well as having two official places of residence. according to the report by the ministry of social affairs and health (18/2018), joint physical custody has a bearing on at least child allowance, housing allowance, alimony, some forms of support for families with disabled children, compensation for travel costs to and from hospitals, school rides, as well as generally for the definition of the number of residents in a household, which is significant, for example, in applying for state supported rental apartments or considering sibling reductions of day-care fees. official jpc also potentially affects the services a family is entitled to, such as day-care, schools, social services, healthcare and dental care. none of these reconsiderations were done at the time the act was passed, but they were scheduled to be considered during the governmental period of 2019-2023. these changes will make joint physical custody not only socially, but also economically, the ideal case of post-divorce parenthood. if joint physical custody is registered, the economic benefits for the parent at whose home the child now resides but is not officially registered can rise to several hundreds of euros per month, depending on the level of social support for which the family is eligible. the economic consequences of this change are therefore not insignificant. thus, it is of great importance who can have access to these arrangements. according to the 2018 proposal, an official joint physical custody arrangement can be registered if it is agreed upon by all the parties concerned – that is, all persons to whom the child officially has access – and the agreement will be enforced by the social committee or by a court. the scope of the parties who can make this arrangement is not limited to legal parents, but also an “especially close person” to the child can register a jpc arrangement if they have a contract or court order to prove the existence of the arrangement. as noted previously, prior to the reform the non-legal parent of the child could not have their right of access enforced by the social committee but needed to take their case to court. acquiring a court decision cost time and money and thus created a situation where the law treated certain family and kinship positions unequally – with considerable economic consequences. whereas a legal parent needed to visit the social services once, or email them an agreement, and then would be entitled to all the benefits that joint physical custody brings, a non-legal parent could lose up to six months’ worth of these benefits, plus have to pay a court fee of ca 250€. the economic losses in this case could rise to thousands of euros. these two changes, that of the right of access to the child and that of recognising joint physical custody, are the two main changes that remodel the finnish legal regulation of kinship. next, i will go on to ask: what are the relationships that the law now accounts for or acknowledges like? what are the premises of these acknowledgements? what kinds of understandings of care, kinship and parenthood are reinforced, promoted and protected by the law and what kinds are omitted or pushed toward the margins? where are the new borders of the redefined legal kinship in finland? to answer these questions, i will turn to marilyn strathern’s thoughts about kinship and recognitions and constructions of parenthood. imitations and limitations: how legal recognition is achieved marilyn strathern (2011: 253–254) states that the terms of kinship, such as child/parent, or mother/father, need to be understood through the premise that “no one of a pair of terms can stand as an originary text”. thus, for strathern, a parent is not the origin point of the child, any more than the child is the origin point of a parent, both exist in relation to each other. a parent cannot be a parent unless there is a child, and a child requires at least some sort of parentage to exist. the relationship between these two is not linear, nor does it automatically prove heritage, genetic bonds or even kinship. strathern (2011: 253) makes a distinction between two ways of understanding kinship: recognition and construction. these terms, she claims, provide a summarising formula for the different orders of knowledge involved in thinking kinship. what is recognised, strathern writes, is “always already there in the language of factuality and information” (ibid.: 254). thus, for example, a new-born child is recognised as the child of their birth mother. construction, on the other hand, requires human decisions to create categories – such as the legal affirmation of fatherhood, legal custody or adoptive parenthood (ibid., examples mine). according to strathern, these two terms can exist in a transformative relation to each other. what we perceive as natural facts (recognise) act as a ground or a reference point, in relation to which we can decide what needs to be constructed, what social conventions we should apply. to continue with the example of a child and a parent, according to strathern, a child is recognised; its autonomous existence is assumed. you can see a child in the street and say: “there is a child”. a parent, on the other hand, is constructed; they exist only insofar as they have already been recognised, only when their child not only exists, but is known to exist (ibid.: 254-255). if the child is not visible, we need the knowledge of the child to perceive a person as a parent. parenthood is thus always constructed as an object of knowledge. moreover, at least in mid-twentieth century euro-american kinship thinking, the “category of parent contains the same distinction within it. the mother is recognised; the father, by contrast, is constructed” (ibid.: 255). strathern writes in the context of the british parliamentary discussion on new reproductive technologies in 1991, but the framework she builds is valid also in present discussions on defining legal kinship. looking at the finnish child custody act, a few different categories need to be considered in order to determine what, de facto, kinship “is” in the eyes of the law and how the definition of this kinship is changing. differentiating between the recognised and constructed orders of kinship gives us a useful tool to analyse these changes in more depth. 1. the question of legal or social parenthood the new child custody act in finland provides a possibility to recognise the performative parenthood of a non-legal parent, in the form of making it possible to give a child right of access also to those persons who are not their legal parents. from the text of the act, it is evident, however, that this recognition requires a construction of an identifiable parenting position that exists prior to its recognition. in the act, the definition of a person eligible for access to the child is that the child has “an established relationship, resembling that of a parent and a child” with this person (cca, 9c§). this relationship is further defined as “typically requiring living with the child and daily participating in the care and upbringing of the child during that period” (ibid.: 55). the act also incorporates exclusions: a mere kinship bond, such as grandparenthood, or an active participation in the everyday life of the child, does not suffice to build such a relationship. the opinion of the child, whose right to access is discussed, is also taken into account: “especially in case of older children, considerable weight should be given to whether the child considers this person as especially close, and whether the child wants to maintain regular contact with this person” (ibid.). once the legal position of this “especially close person” is defined, it can be legislated upon (cf. strathern 2011: 254) . in this process, thus, the relationship is first constructed, then recognised through this construction. but, importantly, in the act, the recognition of a relationship between the child and the non-legal parent requires a pre-existing, factual, concrete, practised and performative parenting relationship between the child and the “person”. as opposed to biological parenthood, or even adoptive parenthood, this relationship cannot be legally recognised prior to a mutual bond forming between the parent and the child. thus, the law can construct a position, but only when practices that conform to the (quite strict) premises of this construction have been performed, can this relationship be recognised. in this sense, the position of a legal parent is different from that of a social parent. in strathern’s terms, even if legal parenthood needs to be constructed, not simply recognised, social parenthood needs this process twice over (see also avdeeva in this issue). this double construction, the recognition of a position within a construction, i refer to as imitation. thus a person who has been parenting the child in practice throughout the child’s life or for a considerable time can be given some of the rights and obligations of a parent, but only when they have been imitating parenthood well enough to be able to be recognised as having a role in the child’s life that is close enough to a child-parent relationship. 2. the child-parent relationship and the best interest of the child. strathern writes (2011: 275) that the problem of legislation is that while it can recognise certain issues, such as tell unethical or harmful kinship or family arrangements apart from ethical ones, its “business is to ‘constitute’ the grounds on which [a situation] may or may not be recognised as a basis upon which persons can claim rights”. constituting grounds is a process where certain social aspects of situations, such as threat of violence, are difficult to account for. thus, legislation is in trouble when situations that may seem similar, prove to be different because of affects, motives or risk factors involved in kinship (and all human) relationships. for example, the risk that two parents, both of whom have been violent toward their spouse, will exercise violence against their child, is different from the parent-partner relationship, depending on the psychological structures of the person or on the dynamic of the parent-child-relationship. these differences can be clearly visible to an experienced professional within family work or a psychologist. in a legal framework, however, the two situations can be difficult to tell apart, as law does not have sufficient tools to account for social or psychological processes and per definition relies on proven facts or evidence. thus, it can be extremely hard for a judge to legally determine whether a right of access can be given if one parent claims a threat of violence. here the law must account for individual and singular situations through a generalising template. for this purpose, many of the bills that have to do with family, kinship or child welfare include the concept of “the best interest of the child” as a basic principle. this concept, as for example kirsti kurki-suonio (1999) has showed, is a slippery and technically difficult tool, as it is perceived differently in different times, places and cultural contexts. in these contexts, i claim, the best interest of the child functions as a legal tool to account for situationality – that is, a concept that requires the legal process to take into account the individual, contextual circumstances of a specific child in a specific case. in strathern’s terms, the best interest of the child is a concept that can be recognised. by this, i mean that the legal use of the concept requires knowledge and affirmation of the factual circumstances surrounding a specific situation, where specific people are involved. in finland, this is most often achieved in practice by the judge ordering an “investigation of the circumstances of a child”, a procedure which is most often carried out by social workers on the initiative of the court. the court then considers its decision based on a report of this investigation, as well as on the basis of the hearings of the parties involved. the best interest of the child, thus, is not constructed in the sense of being conventionally defined through a specific categorisation. there is no specific defined set of criteria that the best interest of the child always meets, nor is any arrangement considered categorically always more in the best interest of the child than some other. this makes it a useful concept for the courts to deal with the changing and situational realities of different family and kinship constellations. but it also becomes a difficult and slippery concept, open to interpretations from different angles, and thus vulnerable to misuse and discrepancies related to power imbalance and the power of definition. the concept of best interest of the child aims to legally grasp an undefined and vulnerable idea of a socially recognisable situation. in practice, these recognitions can lead to quite opposite solutions in different contexts, depending on the current understanding of child psychology, parental rights or the importance of different sorts of relationships (kurki-suonio 1999). if, as for example in sweden, the presence of a father in the life of a child is strongly valued, then the legislation is bound to prioritise definitions of the best interest of the child that lead to joint custody, or even joint physical custody arrangements in all possible situations (kurki-suonio 1999; ryan-flood 2009; see also boyd 2015). if, on the other hand, the occurrence of parental conflict is conceived as more harmful than the child losing contact with the other parent, then solutions can be like those in some states of the united states, where the parent with whom the child resides has been given sole decision power over access to the child, thus minimising the presence of conflict in the child’s everyday life (kurki-suonio 1999; boyd 2015). 3. the question of what can be agreed upon one of the specific features of child custody agreements in finland is that this has been a realm where the state interferes with individuals’ possibilities to make legally binding (enforceable) agreements with each other. for example, an agreement about custody, residence and right of access needed to be ratified by a municipal social committee or a court in order to become enforceable. the new child custody act gives the parents and custody holders significantly more power to decide and agree upon issues concerning custody and residence of the child. sanna koulu states that the question of who has the right to make agreements about matters concerning the child marks the ideal model of the family in family law (koulu 2014: 19). the right to make legal agreements is crucial also when we attempt to look at the borders of legal kinship and parenthood. the new child custody act makes several changes in what can be agreed upon and between whom. for example, giving custody of the child to another person beside the parents can, according to the new act, be agreed upon without going through a court. additionally, the right of a non-custody-holder to get information about the child from the authorities can in the future be enforced by a municipal social committee. however, the possibility to make an enforceable agreement on the child’s right of access to a person who is not a legal parent was not included in the final proposition. thus, these rights of access can only be verified by courts. why is the border of the possibility to make legally enforceable agreements important? according to koulu (2014: 28), a crucial line between what is private business of the family and what is regulated by the state is drawn between the sorts of agreements that parents can make themselves without a court intervention and the sorts of agreements that the state wants to control. when confronted with the question of why legal parents cannot agree to give a right of access to a non-legal parent as well, the spokespersons from the ministry of justice stated that this decision was made because these situations are new to the legislation and there are no precedents that would give guidelines to the social authorities on how to apply the right of access – what sorts of agreements can or cannot be ratified (interview in the journal suomenmaa 6.6.2018). the same justification was used later by the legal committee of the parliament (lavm 12/2018). thus, on the question of how many de facto parents a child can have, the court remains a guard of the enforceable agreements that can or cannot be made (koulu 2014: 19). marilyn strathern writes (2011: 251-253) that because of the nature of knowledge, the attempts to validate anything through giving it a meaning are always subject to uncertainty. strathern turns to derrida and his notion of supplementation, where each repetition, however homologous it may seem, is always changing the previous knowledge about a meaning. thus, for strathern, each attempt to validate something, for example here the relationship between a child and a person especially close to that child, always also produces new uncertainties. in relation to agreements made about the situation of a child, the law attempts to reduce these insecurities by giving the courts, rather than the legal parents or the custody holders, the power to decide whose relationship to the child is “resembling [enough] that of a parent and a child” (cca, 9c§, addition am). according to koulu (2014: 19) the ideal behind the regulation of agreements is “the appropriate family”, a conventional, balanced family, that can make agreements even in a divorce situation. law is there as a last resort and as a provider of guidelines for agreements. in the absence of legal rights, lgbtq? families have been encouraged to embrace practices of negotiation (moring 2013). as is evident throughout the work of scholars working on lgbtq divorce (cf. goldberg & romero 2019), when legal protection is not provided, both professionals and parents of lgbtq families resort to principles of parenthood that are similar to constructs in the heteronormative legal system. for example, a child’s continued relationship to their parents is valued and voluntary agreements are made to protect the child’s relation to their de facto parents (gianino & sackton 2019: 273-278). however, the child custody act, while making possible court decisions on access for non-legal parents, wants to explicitly deny the possibility of legally enforceable agreements for families that are not conventional. thus, although new possibilities are opening, the ideal of what is considered an appropriate family, remains. i will go on to suggest a direction – an informed hunch or advised prediction if you will – which i believe that (finnish) family law is going to develop in the very near future. i will also discuss some feminist reflections on this development. post-grounded kinship and some feminist reflections in recent years, many european countries have renewed their legislation concerning same-sex partnerships and the children born or adopted into these families. simultaneously, we have seen an increase in the number of divorces in all forms of marriage and cohabiting relationships and consequently also in the number of single parent and blended families. after a roughly estimated nine decades of some form of a nuclear family being the absolute and unquestioned ideal and model for regulating family and kinship, we are facing an avalanche of new sorts of kinship relationships daring to speak their name and claim recognition, definition and legal protection. and the legislators are listening and laws are changing, as can be seen throughout many european national laws, as well as in several states in the united states and canada (boyd 2015; fershee 2014; cca; romero & goldberg 2019). the finnish legal scholar anu pylkkänen (2007: 290-292) argues that there are two harmonisation processes going on within the european context of family law. one is directed by the commission for european family law, launched in 2001, and aims to create new principles for european family law. the other is launched by the nordic council of ministers in order to find the possible “harm that might occur because of incongruent laws when people move from one nordic country to another” (ibid. 295). pylkkänen notes that both of these processes are intended to be carried out by lawyers without a political perspective, but in both of them, the process very soon has been hindered by questions rooted in cultural, religious and political differences. these differences relate to questions of the degree of secularisation in different societies, attitudes and legal solutions concerning same-sex couples or families and, slightly surprisingly, differences in levels of women’s labour force participation (ibid. 298-299). changes in family law are, according to pylkkänen (2007: 299), based on the same political and legal framework that grounds the law that they are adapted into. within european and nordic family law, this framework centres around the norm of a heterosexual, nuclear family and is based on the premise of a conjugal, sexual relationship producing biological offspring within a nuclear family form (harding 2015; pylkkänen 2007). the case of the finnish child custody act is yet another example of how new legal categories now created are based on imitations of the familiar structures already present in the law. for people whose intimate relationships have previously been unrecognised by the law, the path to legal recognition often follows from what judith butler has called intelligibility (butler 2004). the kinds of structures that are similar enough to the existing ones are understandable and thus easier to adapt to the existing frameworks of the law. thus, it is much easier for same-sex couples to argue for inclusion in the institution of marriage than it is for a polyamorous three-parent family to argue for the legal acknowledgement of their romantic triad and for legal parenthood for all the three parents. what is evident in the present situation is, however, that the existing model is now being so broadly and inclusively imitated that it is about to lose its significance and thus its status as a defining and hegemonic model. it is no longer, if it ever was, able to adapt to the sorts of care, kinship and family arrangements that are seeking recognition. neither is it adequate to support, promote, protect and remedy the care relationships that surface today (herring 2015). seeing the margins of kinship makes evident the places where more structural shifts need to occur. although certain positions, say that of a de facto parent without legal parenthood, are being demarginalised, new margins are created, and many already existing margins deepened, in the attempts to define the limits of legal parenthood and the best interest of the child. the question remains, however, of what direction the future of family law will take, when the heteronormative legal framework grounded on biology and monogamy no longer suffices. marilyn strathern concludes that perhaps new thinking about kinship needs to acknowledge that the reproduction of persons is suddenly depending on the reproduction of ideas (strathern 2011: 276). she writes, in relation to the discussion on new reproductive technologies in britain, how the debate shows a “necessity to provide a legislative stamp to what is constructed as the recognised facts” (ibid.: 270). that is, law constructs a framework that defines the facts that are recognisable, or in butler’s words intelligible, and the facts that can be recognised through this framework can obtain the legislative stamp required for protection by the state. it is noteworthy, however, that thus far in finland this legislative stamp applies only to rights, but not to obligations – for example, an “especially close person” to the child can be given access, but cannot be obliged to pay alimony for a child. and here is the point for a feminist and queer reconsideration. if the development toward more inclusive definitions of parenting is done in ways that forsake the material, economic needs and requirements of the child in favour of a perceived social relationship, what is the perception of parenting that is protected? and if the inclusion of other than legal parents in the realm of parenthood happens without the consent of the legal parents, what are the effects on the autonomy of the “original” legal parents of the child? further, we need to take seriously the feminist critique of liberal notions of law, where factors such as women’s economic and labour market position are important. anu pylkkänen argues that in much of the nordic family law, we see a construction of “the person in legal narratives as rights-owners and actors in family dissolution […] with an equal bargaining power and with no gender, no sexual identity and barely any caring responsibilities” (pylkkänen 2007: 298). as rosie harding writes (2015: 194-195), parenting practices are not free from gendered, heteronormative dynamics, nor from inequalities that may take quite material forms. when we consider how legislation needs to be developed, we must also consider the economic and practical issues, everyday life and the possibility that enforcing a relationship to a non-legal parent may be intruding on the autonomy of the already existing parents. these issues are, again, not straightforward, but strongly situational. the finnish child custody act is an example of a reform, which does not account for gendered differences in power or economic responsibilities related to the right to access, or reflect on the autonomy of the parent. the changes are justified through the lens of the best interest of the child, which in this account does not include a consideration of the economic, social or even physical well-being of the parent. we seem to be giving out rights without responsibilities and this development needs to be challenged from a feminist perspective. what we have seen in the legal development in finland and other european countries, from the new reproductive technologies, through legislating on surrogacy arrangements, through the recognition of same-sex parents’ families, toward recognising blended families and bonus parents’ rights, is that the factual existence of kin and family relationships is being based on the actual time spent together, instead of genetic or biological ties. the legal regulation of parenthood is more and more often based on doing kinship, instead of being kin, parenting instead of being a parent. however, this doing seems to be defined through a social relationship, not a material or economic one. when one adds that in the finnish system, the right of access – which in principle is the child’s right, not the parents’ – in practice means that the person to whom the child has right of access has no obligation to meet the child, this right seems to be quite free from any responsibility. eva gottberg (2010: 175) writes in relation to the finnish family law, that the future development cannot ignore the pluralisation and diversification of family forms and intimate relationships. based on the analysis above, i agree with her. further, i predict that the focus of the legal framework will turn more and more toward performative acts of care, affects of belonging and definitions created by the family members and kin members themselves. i call this direction of development post-grounded kinship, as it signals a movement away from the biologically or genetically grounded definitions of family, parenthood and kinship. the course of development will not be easy, it will be a path of endless struggles about the power to define, decide and enforce different relationships in very situated contexts, but it will be relentless and surprisingly fast. it will not make the family law or legal kinship easier to regulate, nor provide the courts with easier and more resolvable cases – on the contrary. but it will certainly provide more support, promotion and protection to the existing relationships and hopefully it will serve to protect what is controversially called the best interest of the child. as the legal recognition of multiple forms of parent-child relationships increases, also the recognition of the responsibilities that come with parenthood – economic, material and social – will be more thoroughly recognised. references bergström, malin, emma fransson, helena fabian, anders hjern, 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https://www.finlex.fi/fi/laki/kaannokset/1983/en19830361_20090436.pdf laki lapsen huollosta ja tapaamisoikeudesta annetun lain muuttamiseksi 190/2019 [act to change the act on child custody and right of access 2019]. https://www.finlex.fi/fi/laki/alkup/2019/20190190 hallituksen esitys eduskunnalle laeiksi lapsen huollosta ja tapaamisoikeudesta ja holhouslain muuttamisesta sekä niihin liittyvien lakien muuttamisesta (he 224/1982 vp) [the government proposal to change the act of child custody and right of access]. https://www.eduskunta.fi/fi/vaski/hallituksenesitys/documents/he_224+1982.pdf memorandum om 31/41/2015, lapsen huoltoa ja tapaamisoikeutta koskevan lainsäädännön uudistaminen [the renewal of the legislation concerning child custody and access]. ministry of justice, 2015. https://api.hankeikkuna.fi/asiakirjat/afb68d97-f273-4760-a132-3a5ab8cf065e/3e949bd6-2011-4b9d-8c9a-5af0c91242f5/lausuntopyynto_20160407021509.docx report 47/2017. lapsenhuoltolain uudistaminen. työryhmän mietintö 47/2017 [memorandum on renewal of the child custody act]. ministry of justice, 2017. https://julkaisut.valtioneuvosto.fi/bitstream/handle/10024/80751/omml_47_2017_lapsenhuolto.pdf?sequence=1&isallowed=y lavm 12/2018 [memorandum of the legal committee of the finnish parliament on the act on child custody and right of access]. https://www.eduskunta.fi/fi/vaski/mietinto/sivut/lavm_12+2018.aspx paternity act (700/1975). english translation from 2005. https://www.finlex.fi/fi/laki/kaannokset/1975/en19750700_20050379.pdf paternity act (11/2015). in official english translation from 2016. https://www.finlex.fi/fi/laki/kaannokset/2015/en20150011_20151596.pdf report 18/2018, etuudet ja palvelut lapsen vuoroasumistilanteessa [report on advantages and services in case of joint physical custody]. ministry of health and social affairs, 2018. https://stm.fi/julkaisu?pubid=urn:isbn:978-952-00-3929-5 * anna moring, phd, currently leads the vn teas-funded project “law and family diversity”. she is also chief specialist at the finnish network of family diversity. this article was written during her engagement as a post-doctoral researcher at the academy of finland-funded project “contrasting and re-imagining the margins of kinship corekin” (1297957, 09/2016-08/2020, dir. antu sorainen) at the university of helsinki. email: � hyperlink "mailto:anna.moring@monimuotoisetperheet.fi" �anna.moring@monimuotoisetperheet.fi�. i want to extend great gratitude to the guest editors of this volume, heidi härkönen and antu sorainen, as well as the other members of the corekin research team, anna avdeeva, anna heinonen and alisa zhabenko, for enlightening comments and discussions over the years. in addition, i want to thank paul boyce, davina cooper, elisabeth l. engebretsen, jack j. halberstam, didi herman, and thomas strong for important and encouraging feedback during the writing process. i would also like to thank the two anonymous reviewers whose comments were accurate and very helpful in the final revising stage of this text. � however, the best interest of the child needs to be accounted for in deciding on the number of persons with custody of the child. � the abbreviation lgbtiq refers to lesbian, gay, bisexual, transgender, intersex and queer – a common abbreviation in attempting to refer to a broad company of non-heterosexual, non-cis-gendered people and identities. the abbreviation is seen in research literature as well as in common use in many different forms, some of which may include a + or a ++ at the end to mark the fact that the list can never be complete or all-encompassing. i have chosen to use this abbreviation in this article, conscious of the fact that it will never be able to grasp all diversity. � the concept of performativity here comes from judith butler’s work, e.g. butler (1990). � for definitions of de facto parenthood or psychological parenthood, that may in some states of the united states validate a claim for custody or visitation, see fershee (2014: 436, n. 4 and 5). these definitions are not valid everywhere even in the united states, and naturally do not apply in europe, but many euro-american national or state laws already do have some ways of acknowledging situations of de facto parenthood (proposition 88/2018 vp). � a municipal social committee is a committee consisting of politically elected representatives. the structures of these committees vary within different municipalities. these committees handle cases of child protection, adoption, custody and visitation and so on, but most commonly, when handling individual cases, in practice, they end up confirming suggestions made by social workers or parents themselves. thus, for example, the notion of custody being enforced by a municipal social committee in practice would mean that the parents can make a mutual agreement in a custody case, and as default the committee would enforce it. � while the proposal had become law by the time this article was completed, the proposal is the document where the legal reform is justified, and thus my analysis will focus mostly on the proposal. other material used as support for the analysis will include the memorandum on the renewal of the child custody act (mietintö: lapsenhuoltolain uudistaminen, oikeusministeriön mietintöjä ja lausuntoja 47/2017) as well as statements by stakeholder organisations and some private persons (� hyperlink "http://oikeusministerio.fi/hanke/-/hankesivu/hanke?tunnus=om010%3a00%20%2f2016" �http://oikeusministerio.fi/hanke/-/hankesivu/hanke?tunnus=om010%3a00 %2f2016�), and the summary of the statements by the ministry of justice (� hyperlink "https://julkaisut.valtioneuvosto.fi/handle/10024/160891" �https://julkaisut.valtioneuvosto.fi/handle/10024/160891�). references will also be made to the paternity act (13.1.2015), the public health insurance act (21.12.2004/1224) and the new maternity act, which at the time of writing had been approved, but was not yet in force (20.4.2018/253). � bergström et al. (2017: 294) define joint physical custody as “a practice where children with non-cohabiting parents live alternatively and about equally with both parents”. � in the biannual finnish school healthcare research over 15% of all 14-15-year-olds reported that their parents have a joint physical custody arrangement (thl 2017). � right of access in finland entails the right of the child to visit and be taken care of by the non-residential parent, or after this change also by a person comparable in importance to the non-residential parent. � cf. � hyperlink "https://yle.fi/uutiset/3-10240813" �https://yle.fi/uutiset/3-10240813�, viewed 13.6.2018. � interview in the newspaper suomenmaa:.� hyperlink "https://www.suomenmaa.fi/uutiset/lakiehdotus-voi-laajentaa-lapsen-oikeutta-tavata-laheisia-aikuisia-ei-automaattinen-isovanhempien-tapaamisoikeus-6.3.382403.4f456326f8" �https://www.suomenmaa.fi/uutiset/lakiehdotus-voi-laajentaa-lapsen-oikeutta-tavata-laheisia-aikuisia-ei-automaattinen-isovanhempien-tapaamisoikeus-6.3.382403.4f456326f8�, viewed 13.6.2018. � the writer’s notes of discussions in the follow-up working group on the draft proposal, 27.09.2017. � the report of a workgroup working on these issues in the ministry of social affairs and health, stm raportteja ja muistioita 18/2018, can be accessed at � hyperlink "https://stm.fi/julkaisu?pubid=urn:isbn:978-952-00-3929-5" �https://stm.fi/julkaisu?pubid=urn:isbn:978-952-00-3929-5�, viewed 13.6.2018. � ibid. � strathern’s argument here is related to the anthropological discussion of nature/nurture, where the question is whether, and in which cultural contexts, kinship should be considered to be based on biological or genetic relatedness versus upbringing and social parenting. this question is surprisingly resilient in discussions concerning kinship and family in many different contexts, for example, in the study of themes such as adoption, foster parenting or surrogacy. as i interpret, strathern aims to complicate the understanding of nature/nurture and look at the underlying structures on which this binary is based. � it is noteworthy, that the term “social parent” is not utilised in the text of the act. instead these people are throughout the text referred to as “a person, in relation to whom the child has been given the right to access according to 9c§”. � interestingly, in finnish discussions, the only party that has repeatedly called for a thorough and singular legal definition of the best interest of the child in relation to custody and right of access, is isät lasten asialla, which is a fathers’ rights organisation strongly opposing parental alienation. (http://www.isatlastenasialla.fi/wp-content/uploads/2019/01/ila_lausunto_271117.pdf.) they have received occasional support from other men’s rights organisations, but no legislative success for their endeavour. on the contrary, the child custody act states that no one arrangement can generally be said to be more in the best interest of a child than another and thus each solution needs to be considered individually (cca 10§, also detailed justification). � for a brief account of the evolution of principles in custody law, see stern et al. 2016: 81. � according to kurki-suonio (1999), however, these kinds of arrangements were already in the 1990s rapidly disappearing in favour of the child’s right of access to both [sic] parents after divorce. � see for example the ilga europe rainbow map, listing the legal situations of lgbt etc. people and families in all european countries. � hyperlink "https://www.ilga-europe.org/resources/rainbow-europe/rainbow-europe-2018" �https://www.ilga-europe.org/resources/rainbow-europe/rainbow-europe-2018�, viewed 23 july, 2018. � butler has developed her theory of performativity, presented in gender trouble from 1990, toward a more complex notion of the working of power, agency and normativity. the concept of intelligibility, which she develops in her essay undoing gender (2004), aims to explain how different lives and real positions become understood or un-understood in a broader cultural context. thus, for example, grieving for a same-sex spouse, deceased due to aids, was an unintelligible grief in the early 1980s, whereas it now, through the debate on same-sex marriage, has become more intelligible. other griefs, however, remain in the realm of the unintelligible. i claim that the question of what kind of relationships become culturally understood and which remain un-understood is a crucial one with regard also to developments of legislation and in defining the kinds of relationships that can and will be considered in law. _______________________________________________________________________________________ 2 _______________________________________________________________________________________ 2 jamelia morgan disability, criminal justice, and abolition __________________________________________________________________________________ feminists@law vol 12, no 1 (2023) __________________________________________________________________________________ disability, criminal justice, and abolition: recognizing and remedying law’s violence jamelia morgan [footnoteref:1]* [1: *professor of law, founding direction for the center for racial and disability justice, northwestern pritzker school of law, usa jamelia.morgan@law.northwestern.edu] abstract in this short essay, i explore how liat ben-moshe’s decarcerating disability: deinstitutionalization and prison abolition and linda steele’s disability, criminal justice and law: reconsidering court diversion provide helpful analytical frameworks for legal practitioners, students, and scholars committed to responding to law’s role in producing and legitimating violence against historically marginalized groups, and in particular disabled people. this essay surfaces three key insights that ben-moshe and steele provide legal scholars, practitioners, and students: the importance of the intersectional method, critical analysis on how law is complicit in ongoing forms of disability-based subordination, particularly within the criminal legal system, and the imperative of the abolitionist ethic as a necessary response to redressing forms of state violence, including in particular, legally sanctioned harms to disabled people. in decarcerating disability: deinstitutionalization and prison abolition, liat ben-moshe demonstrates the feasibility of prison abolition and deftly maps out its possibilities by connecting histories of advocacy behind movements for deinstitutionalization (i.e., advocacy aimed at closing large psychiatric hospitals and congregate facilities for individuals with intellectual and developmental disabilities) with the past and ongoing movements to abolish the prison industrial complex. in disability, criminal justice and law: reconsidering court diversion, linda steele provides case studies and a decisively critical lens on an oft-lauded genre of criminal legal system reform: court diversion programs. steele persuasively demonstrates how disability diagnoses act as pathways into court surveillance and control, and a mechanism for circumventing the rights of disabled people. as steele maintains, court diversion programs rely on and exploit disability labels as a pathway for “coercive intervention that surpasses what is otherwise possible through criminal law.”[footnoteref:2] [2: linda steele, disability, criminal justice and law: reconsidering court diversion 45-46 (2020).] following the racial reckoning protests during the summer of 2020, the modern-day prison-industrial-complex abolition movement has emerged as an organizing practice not only within social movements but also among radical legal professionals, lawyers, and law students. both books are timely contributions for scholars (myself included) who write critically about the carceral state through the lens of abolition. these books provide helpful analytical guides for practitioners, students, and scholars dedicated to dismantling law’s role in group-based violence and subordination. indeed, in particular, both books provide an analysis grounded in a specific focus on disabled people who are in contact with the criminal legal system, or what steele terms ‘criminalized disabled people’. both books emphasize the importance of intersectionality as a methodology for surfacing injuries—physical, mental, emotional, symbolic, or otherwise. for example, liat ben-moshe defines the “processes of criminalization and pathologization” that link race and disability as constructs in what she terms “racial criminal pathologization”.[footnoteref:3] as ben-moshe explains in reference to the police killings of michael brown, officer darren wilson testified that brown was described “not just as animalistic but as crazy, pathological, abnormal… race is coded in disability, and vice versa. it’s impossible to untangle antiblack racism from processes of pathologization, ableism, and sanism”.[footnoteref:4] [3: liat ben-moshe, decarcerating disability: deinstitutionalization and prison abolition 25-26 (2020).] [4: id. at 25.] both scholars surface the complicity of law and legal actors in contributing to the subordination of disabled people, particularly how law exposes criminalized disabled people to violence and premature death, institutionalization, detention, or imprisonment. for example, key to law’s subordinating function—i.e. how law obscures the violence it inflicts while legitimizing it—is what steele terms “disability-specific lawful violence”.[footnoteref:5] as steele explains, disability labels provide a lawful justification for state-sanctioned surveillance and control. in decarcerating disability, ben-moshe cautions against the uncritical reliance on litigation in movements to reform prisons. ben-moshe notes that “using the law to create change assumes that the law is just and is a fruitful arena through which change can come to harmed populations. litigation and rights discourse draw on the state in fixing social ills of its own creation”.[footnoteref:6] [5: steele, supra note 1, at 4.] [6: ben-moshe, supra note 2, at 68. ] lastly, the abolitionist ethic pervades both books. the vast scope of violence targeted at criminalized disabled people and legitimated through law provides a forceful argument against reform. both authors’ critical accounts provide strong arguments for why legal actors and advocates—whether judges, lawyers, legal workers (jailhouse lawyers, law clerks, legal secretaries), paralegals—should hesitate to adopt legal reforms without considering whether the specific policy intervention furthers or entrenches the harms of the criminal legal system—or extends the longevity of these violent systems as a whole. in short, both works provide forceful arguments in support of abolition. in my work, i apply insights from critical disability theory to understand how law fails to adequately protect the rights of disabled people, and to surface reforms and radical interventions to reduce or eliminate those harms.[footnoteref:7] like ben-moshe’s and steele’s books, my work is focused on issues affecting criminalized disabled people and disabled people in all carceral spaces. given my position within a law school, and the constraints of law more generally, much of my work offers an account for how laws, policies—even those framed as legal “reforms”—discriminate against disabled people, contribute to the social subordination of disabled people, or leave them vulnerable to state violence and premature death. [7: jamelia morgan, disability’s fourt amendment, 122 colum. l. rev. 489, 491-98 (2022); jamelia morgan, policing under disability law, 73 stan. l. rev. 1404-1411 (2021).] both works push me as a legal scholar to examine how law not only fails to protect but actively launders and then legitimates violence against criminalized disabled people once contact with the criminal legal system is made. ben-moshe and steele’s work push me as a legal scholar to map out the ways law plays this pernicious role and to find a way to disrupt the ease through which disability labels can function as a mechanism for legally sanctioned discipline, control, and violence. liat ben-moshe critiques prison reform litigation and provides reasons to avoid uncritical use of law in movements for abolition. ben-moshe posits: [w]ill cases reliant on disablement lead to a rethinking of mass incarceration, or will they instead lead to incarceration by means that comply with the court’s vision of ‘humane’ incarceration, for example, the opening of more jails and prisons so they are less overcrowded or provide more psychopharmaceuticals (the most common “treatment” of mental crisis in prison), what kilgore referred to as carceral humanism?[footnoteref:8] [8: ben-moshe, supra note 2, at 261, 263.] as the excerpt from ben-moshe suggests, the uncritical use of the law even where focused on disablement would do little to undermine ‘carceral ableism’ and would also be fundamentally inconsistent with the long-term goals of abolitionists. and, as steele’s book helps to illuminate, law legitimizes surveillance and control while masking forms of oppression. steele notes that “the actions of lawyers, judges and law reformers are pervasive throughout” the violence steele documents, including “criminalisation, medicalisation, incarceration and victimisation”. indeed, as steele emphasizes “much of” this violence “is legal violence or takes place in institutional settings where individuals have ended up by legal decisions”.[footnoteref:9] steele calls for a “critical disability legal pedagogy,” and argues that “[l]egal pedagogy should be an integral aspect of contesting criminalised disabled people’s carceral control and debilitation”. steele cautions law teachers to recognize that: [9: steele, supra note 1, at 206.] because they are, in effect, teaching violence when they teach law without critical reflection on disability . . . they are representing violence–both against disabled people and through legal ontologies of disability–as rightly lawful and just, and this sustains other dynamics and forces of oppression.[footnoteref:10] [10: steele, supra note 1, at 210-11.] steele’s insights provide not only useful guidance to law teachers who teach law as pertains to the carceral state, but to legal practitioners who are working to dismantle the systems’ violence as they navigate their ethical obligations to remedy these systemic injustices while reckoning with their own complicity in systems that harm. with these insights in mind, a few questions remain for the current discussion: given the violence that law inflicts, what should (or could) the role of law be within abolitionist movements? legal scholar dorothy roberts calls for “abolition constitutionalism”[footnoteref:11] while legal scholar amna akbar calls for a more radical approach to law.[footnoteref:12] yet, if law is complicit in the subordination of disabled people, how do lawyers and legal workers use law to reduce harms facing disabled people and remove barriers that can allow movements to organize and mobilize for their collective liberation? are there ways that law can be utilized to facilitate what mariame kaba refers to as the “experimentation” required for abolitionist movements?[footnoteref:13] both works offer answers to these questions, or a helpful analytical framework for responding to these questions, among other insights, and provide invaluable critical analysis for those interested in promoting the liberation of all historically marginalized and oppressed peoples, including and especially disabled people. [11: dorothy e. roberts, foreword: abolition constitutionalism, 133 harv. l. rev. 1, 3 (2019).] [12: amna a. akbar, toward a radical imagination of law, 93 n.y.u. l. rev. 405 (2018).] [13: miriam kaba, we do this ‘til we free us. haymarket books (2021).] __________________________________________________________________________________ 4 __________________________________________________________________________________ 3 flora renz and marian duggan how can feminists respond to the decision in dobbs? _____________________________________________________________________________________ feminists@law vol 11, no 2 (2022) _____________________________________________________________________________________ how can feminists respond to the decision in dobbs v. jackson women's health organization? flora renz and marian duggan[footnoteref:1]* [1: *dr flora renz, senior lecturer in law, kent law school, university of kent email: f.renz@kent.ac.uk. dr marian duggan, senior lecturer in criminology, school of social policy, sociology and social research, university of kent email m.c.duggan@kent.ac.uk.] introduction the decision in dobbs v. jackson women's health organization[footnoteref:2] in june 2022 fundamentally changed the reproductive rights landscape, both in the us and beyond. the case focused on a law introduced in mississippi in 2018, which would have banned most abortions occurring after the first trimester. the law had initially been subject to injunctions from lower courts, due to the fact that it was counter to the rulings in roe v wade[footnoteref:3] and planned parenthood v. casey[footnoteref:4], which established that the us constitution did include a right to abortion and did not allow states to pass laws banning abortions taking place before the point of foetal viability, i.e., before 24 weeks. mississippi appealed these injunctions on three points a) that the viability standard set in casey was no longer accurate, b) that the viability standard did not address the protection of “potential life” adequately, and c) that the supreme court should allow states to prohibit “inhumane” procedures. the court’s decision consisted of a 6-3 majority judgment in favour of mississippi’s appeal. the majority opinion overturned both roe and casey and declared that the us constitution did not provide a right to abortion and that this was therefore a matter for individual states to regulate. [2: dobbs v. jackson women's health organization, no. 19-1392, 597 u.s. (2022).] [3: roe v. wade, 410 u.s. 113 (1973).] [4: planned parenthood v. casey, 505 u.s. 833 (1992).] as a consequence of dobbs, so-called trigger laws, which had been prepared in several states prior to the decision in dobbs, came into immediate effect and created significant restrictions on abortion access in states such as louisiana and texas. in other states abortion and reproductive healthcare providers quickly challenged newly introduced abortion restrictions, several of which banned all abortions.[footnoteref:5] of course, this sudden shift in the reproductive rights landscape had an immediate effect on the rights of women and pregnant people in the us in need of reproductive healthcare. however, in today’s global society the impact of dobbs can be felt beyond the jurisdiction of the us. while many political leaders in the global north immediately condemned the decision, other leaders including brazilian president jair bolsonaro and german far right politician beatrix von storch celebrated this new restriction on reproductive rights and expressed their hope that their own countries would soon follow the example set by the us.[footnoteref:6] [5: see, e.g. https://edition.cnn.com/2022/08/05/politics/indiana-state-house-abortion-bill/index.html; last accessed 23 october 2022. ] [6: see, e.g. https://www.washingtonpost.com/world/2022/06/24/global-reaction-roe-abortion-supreme-court/; last accessed 20 october 2022. ] the global context the decision in dobbs also comes at a time when reproductive rights in many countries are increasingly under threat. for instance, poland passed a near total ban on abortion in 2020, despite unprecedented protests from women and feminists across the country.[footnoteref:7] in hungary, prime minister viktor orbán has declared the need for women to have more children to counter what he perceives as the negative impact of migration, as part of often racist and antisemitic attack on migrants in europe.[footnoteref:8] rather than explicitly restricting access to reproductive healthcare, his policies have tried to implicitly deter women from having fewer children by introducing tax breaks for women with more than four children, better mortgage terms for larger families and improved funding for childcare.[footnoteref:9] similarly, uk media has seen an increasing concern over women’s decision to have fewer children, by emphasising the negative impact realistic portrayals of childbirth,[footnoteref:10] childcare costs and fears about the climate crisis,[footnoteref:11] and influencers on tiktok[footnoteref:12] may have on already declining birth rates. even if such measures take less restrictive forms than outright abortion bans, they nevertheless designate reproductive healthcare decisions as a matter for public debate and policy and imply that having more children is inherently good and important for society. consequently, it is unsurprising that, even in countries such as the uk where reproductive healthcare is generally available, women and others still frequently face harassment and abuse for utilising such healthcare.[footnoteref:13] [7: see https://www.hrw.org/news/2022/10/22/two-years-polands-abortion-crackdowns-and-rule-law#:~:text=the%20tribunal's%20decision%20eliminated%20one,result%20of%20rape%20or%20incest; last accessed 18 october 2022. ] [8: see https://www.theguardian.com/world/2019/feb/10/viktor-orban-no-tax-for-hungarian-women-with-four-or-more-children ; last accessed 18 october 2022.] [9: see https://ec.europa.eu/social/blobservlet?docid=22505&langid=en ; last accessed 19 october 2022.] [10: see https://www.telegraph.co.uk/tv/0/going-hurt-could-turn-generation-women-having-children/ ; last accessed 19 october 2022.] [11: see https://www.telegraph.co.uk/opinion/2022/01/29/women-often-given-reasons-not-have-children/ ; last accessed 19 october 2022.] [12: see https://www.telegraph.co.uk/family/parenting/child-free-choice-birth-rate-crisis-gripping-west/ ; last accessed 19 october 2022.] [13: see for instance recent attempts to enshrine buffer zones around abortion clinics in law to combat harassment by anti-abortion protesters: https://www.bbc.co.uk/news/uk-politics-63302710 ; last accessed 24 october 2022. ] given both the decision in dobbs and wider global developments, it now seems more vital than ever for feminist academics and activists to renew their attention to reproductive justice. as editorial board members of the open access journal feminists@law, we envisage this rapid response series as contributing to these important discussions and developments. while the rapid response format may appear unfamiliar and unconventional, we believe the urgency of this unfolding situation warrants such an approach. traditionally, academic publishing has struggled to offer accessibility in the sense that access to published works often requires institutional membership. it has also been marred by temporality, in the sense that the nature of publishing frequently creates long delays between crucial events and the availability of relevant materials. this rapid response engages with reproductive rights and the decision of dobbs from a range of different perspectives, and will be supplemented with expert feminist insights on an ongoing basis for as long as necessary. this launch edition comprises of the first set of responses we have received. it includes a reflection on end-of-life care and surrogacy by pamela white, an analysis of medical professionals’ views on abortion in the uk by hannah pereira, a focus on criminalisation and criminal law in the context of abortion by emma milne, a spotlight on the role of religion and religious views by kellie turtle and fiona bloomer, and a call for global feminist engagement with dobbs by martha davis. we will update this information accordingly as further contributions are provided. _____________________________________________________________________________________ 20 _____________________________________________________________________________________ 19 lemaitre violence and neo-constitutionalism _____________________________________________________________________________ feminists@law vol 2, no 1 (2012) _____________________________________________________________________________ violence and neo-constitutionalism: a comment on breny mendoza’s text julieta lemaitre[footnoteref:1]* [1: * assistant professor, universidad de los andes law school, bogota, colombia. jlemaitr@uniandes.edu.co ] in his work on civil wars stathis kalyvas (2006) argues persuasively that the violence of civil wars combines aggression against a political enemy with violence that is nurtured under much more familiar circumstances. many acts can be explained by greed, envy, revenge, lust, family hatreds and the other petty reasons that make humans so endlessly creative in their betrayal and hatred. wars are also, of course, rife with all the selflessness and heroism that we can muster, as well as with meaningless tasks, and endless waiting, and ordinary acts of survival. in many ways a civil war is also ordinary life; eating, sleeping, raising children, dying and surviving. but what is perhaps more remarkable is how war adds unsuspected possibilities to ordinary human frailness: the possibility of bringing to violence the passions we usually keep in check. coveting a neighbor’s land, being betrayed by a friend, losing a lover, a long standing family feud, now take on the form of untethered partisan violence. the relationship between civil wars and our ordinary life illuminates the way historic circumstances both constrain and free us, bringing out the best and the worst in us. as individuals we are formed, lifted and destroyed by the historical times and processes in which we have the good or bad fortune to be caught up, and it is only by chance that we, you the reader, i the writer, are sharing this moment of intimacy and not selling roses in the corner of a third world city, choking on the noxious fumes from an old bus, squatting on a worn down plastic stool, or maybe walking slowly up and down the same deserted street in a war torn country, fingering the cold trigger of our gun, adrenaline running down our pumping heart while nothing happens. this is to say i find individuals endlessly interesting in their variations, but also endlessly boring in their similarity. some are kind, gentle, others heroic and selfless, others are cruel intentionally cruel, or simply cruel in their indifference. individual qualities and character sometimes stand out, but usually it is the circumstances which shape the most important choices in our lives, from our choice of mate to the possibility of choosing acts we consider ethical, or indeed the possibility of wondering if our choices are according to some universal ethic or simply the way we find to best survive. likewise, i am generally unconvinced by the projection of individual qualities, especially ethical qualities, onto collectivities shaped by historical moments. one of the ethical disasters of communism was to pass moral judgment on groups of people whose individuals were then chastened. “the rich,” “the bourgeoisie,” “the ruling class,” are, i believe generally no better and no worse than “the working class,” “the oppressed,” and so on. i am therefore hesitant to expect luminous insight, wisdom or kindness from a particular class of people because they have suffered, and revolted against this suffering. these qualities (insight, wisdom, kindness) are real in some individuals, but their being women, indigenous people or poor, i find, is generally unrelated to that fact. while it might make individuals more sensitive to others, just as often extreme suffering seems to degrade individuals rather than uplift them. circumstances of course bring out the best and the worse in humans. and arguably some circumstances, rural life perhaps, or life in small communities with extended families, or a life of faith and the practice of selflessness, bring out the best in most people. in other circumstances, like the guards in the zimbardo prison experiment, the opposite is also true. but these circumstances are not generally linked to the categories we have constructed as the markers of our identities: class, gender, race, sexuality… these facts should, i think, make us more aware of the importance of processes over individuals and classes. processes and context shape us, and the shape we take may or may not be recognizable to our intimate selves. they will make us into what they will: drafted into an army in a time of civil war, we might become murderers of our kin and neighbors; entering a university in a time of social unrest and marches will lead us to be critical and prone to marches of protest; living in political exile from one’s homeland tends to radicalize former political allegiances. this is what we mean when we say “there but for the grace of god go i…” this is not to say of course that there are no individual choices, or that individuals do not make very different choices when faced with the same circumstances. but it is to say that the choices available are more important in the long run, in the short run, than the individuals making them. for example, in a time of civil war, when one’s wealthy neighbor, one’s former brutish supervisor, belongs to the opposing faction, a person might chose to protect this person from an angry mob and risk her life to do so, or she might chose betrayal, for revenge, for greed, for principle. but what matters most in these circumstances is, i think, not individual character but the fact that these choices were available in the first place. and what is most desirable about peace (may you live in peaceful times, goes a blessing) is that while heroism is scarce, personal animosity rarely takes a tragic bend. a revolution then, or a process of resistance like that described by breny in this article, has its own dynamic that is independent of the class of people by which it is led. if it was in fact a case of “the people” against an “oligarchy” this does not guarantee, as so many revolutions have shown, that it will be the kind of process that brings out the best in men and women, or that limits the possibility of violence. neither does the appeal to a constituent assembly of coursethe original one being linked not only to the french revolution, but also to the terror that followed. people who do not like law or legal forms often also trust too much the innate goodness of certain social groups, and hope that once these groups have power justice will be achieved, and terror avoided. however i like to think that the appeal to law is more revealing of a process than the fact that it is led, or not, by “the people.” calls for legality, like the calls to nonviolence, signal processes that limit the legitimacy of violence, and thus the choices available to individuals, and that might be part of the kind of circumstances that bring out the best, rather than the worse, in individuals. if this eventually were the case in honduras (the same government put in place after the 2009 coup is still in power,) then it would really signal a transformation of important proportions. of course legal forms are a constant disappointment as well, as we all know too well. but they do limit the available choices, and generally exclude political violence, and often personal violence, as one of them. a movement that sincerely calls for a constituent assembly as its main goal, an assembly that is elected peacefully and where all groups, even enemies, can be represented, is probably a movement that eschews political violence and values dialogue. the process of free and peaceful elections, of rational argument is a historical process that seriously limits the violent choices available to political enemies. their absence is a probable indicator that, at least for those in power, violence will be an easy resource. once political and historical circumstances are such that violence is not an easily available choice, human pettiness and frailness is channeled differently, and in many ways human life thrives, or can thrive. however the hopes raised by such a process in central america are certainly limited, as is the possibility of a left or a right neo-constitutionalism of limiting the use and prevalence of violence. the tragedy of honduras, as well as that of its neighbors, of much of mexico, colombia, as well as other countries in south america is that the possibility of having a future shaped by law and not by violence is constantly being undermined by the drug war unleashed and maintained by powerful sectors of the united states as well as in latin america. prohibition of a terribly lucrative business has placed a large portion of social life outside the purview of the law, and has made violence a normal part of everyday life. prohibition creates a historical circumstance where violence is constantly available as a social choice, regardless of the political and economic system and of course, regardless of the law. and once the choice is freely available, it will be used by some individuals for all sorts of purposes: status, revenge, humiliation, greed… in other words the drug wars create an ordinary life where, not unlike a civil war, violence is often the norm and laws are not, and this process is unlikely to be derailed while prohibition, ironically also created by law, is still in place. reference kalyvas, stathis. 2006. the logic of violence in civil war. new york: new york university press. _____________________________________________________________________________ _____________________________________________________________________________ martha f. davis limiting the impact of dobbs __________________________________________________________________________________________ feminists@law vol 11, no 2 (2022) __________________________________________________________________________________ limiting the impact of dobbs: the potential for international solidarity martha f. davis[footnoteref:1] [1: martha f. davis, university distinguished professor of law, northeastern university. email: m.davis@northeastern.edu] the u.s. is a now a global outlier in terms of abortion law and access. thirty-seven countries around the world have liberalised abortion access in the past twenty-two years. during the same period, only one, nicaragua, increased its abortion restrictions, adopting a complete abortion ban. other countries that maintain restrictive abortion laws include authoritarian regimes in venezuela and poland. with the u.s. supreme court’s decision in dobbs v. jackson women’s health organization on june 24, 2022, the u.s. joined this rogues’ gallery. dobbs rescinded the fundamental constitutional right to abortion and gave the green light to states to adopt any and all manner of abortion restrictions, including complete bans from the moment of fertilisation. u.s. policymakers often profess a lack of concern about worldwide comparisons, but international abortion laws and practices were at the centre of the dobbs case. the text of the mississippi law at issue in dobbs began with the assertion that u.s. abortion law was out of step with the rest of the industrialised world and was instead comparable to the laws of china and north korea – a dubious claim that, at the very least, ignored the abortion laws in the netherlands, new zealand, iceland, canada, colombia, and the united kingdom. when dobbs reached the u.s. supreme court, several amicus briefs submitted in support of the mississippi clinic attempted to shed light on these comparative law issues, but found few open minds. an amicus brief that i worked on, joined by thirty international and comparative law scholars hailing from countries ranging from iceland to nepal, explained the nuances of comparative abortion access in detail. we stressed the complexities of comparing countries with universal health care, strong social supports, and ready exceptions to time limits that, in practice, provide abortion access up to viability, to the spotty prenatal health care and inadequate social supports offered in mississippi and generally throughout the u.s. in mississippi, for example, more than 20% of women have no health insurance, and educators are forbidden from demonstrating proper use of contraception. nevertheless, during oral argument, chief justice roberts repeated the facile arguments of abortion opponents that the proposed 15-week ban in mississippi “is the standard that the vast majority of other countries have.” another powerful amicus brief submitted in support of the mississippi clinic was filed by united nations mandate holders, including several un special rapporteurs. these experts explained that international human rights law protects abortion access as a component of the rights to equality, privacy, life, health, and freedom from cruel, inhuman, or degrading treatment. the u.s. is subject to these standards through its ratification of the international covenant on civil and political rights and the convention against torture, and prohibited from retrogression as a signatory to the convention on the elimination of all forms of discrimination against women (cedaw). the supreme court’s majority opinion, however, wholly failed to acknowledge the human rights at issue or to consider what obligations the u.s. might have under international law. within just a few weeks of the supreme court’s decision in dobbs, the u.s. abortion landscape has become a chaotic and confusing patchwork. in some states, such as new mexico, the fundamental right appears to be secure as a matter of state constitutional law, at least in the near-term. in other states, such as montana, abortion opponents hope to overturn a state high court decision protecting abortion rights. and in some states, such as alabama, all abortions are now banned, even for pregnancies resulting from rape or incest. further, several states, such as texas and missouri, are looking for ways to control access to abortions outside of their own jurisdictions by attempting to extend their own state laws extraterritorially. for example, state a could attempt to criminalize an abortion conducted by a medical practitioner in state b, involving a patient from state a, based on the impact of the abortion in state a. certainly, abortion opponents’ success in the dobbs case should be a wake-up call for feminists in the many countries worldwide that have made abortion gains in recent years. while it would not be fair to say that u.s. abortion rights activists were ever complacent about the right to abortion, there was certainly a tendency to rely on the courts as the means to protect abortion access. in this respect, abortion was not different from other rights in the u.s. that have been ceded to the courts, like marriage equality. but the dobbs decision drives home the danger of that approach, with important lessons for activists both in the u.s. and abroad. beyond learning from the u.s. example, abortion rights activists worldwide can also help ensure that u.s. denial of the fundamental right to abortion comes with some consequences on the world stage. the european union’s dogged opposition to the death penalty provides an example. like abortion, it is a u.s. supreme court ruling that permits individual states to make determinations regarding the death penalty, with a resulting patchwork of state laws. recognising exercise of the death penalty as a fundamental human rights issue, the eu files briefs, conducts missions to states that permit the death penalty, and regularly speaks out at the un and in other international fora to confront the u.s. on states’ continued policies of allowing executions. there will be similar opportunities for other nations to raise the abortion issue, to demonstrate that the u.s. is an isolated outlier, and to maintain pressure for abortion liberalisation in the u.s. for example, going forward, countries can monitor the treatment of foreign nationals in the u.s. who are denied abortion access; if foreign nationals are affected by abortion criminalisation, the vienna convention on consular relations may mandate consular notice and provide an occasion for diplomatic engagement on the issue, highlighting the denial of fundamental rights. when the u.s. undergoes its universal periodic review as part of the un human rights system, countries can use their allotted time for short statements to question the u.s. government about abortion access, just as they currently often criticise the u.s. position on the death penalty. while this is a long term strategy at best, it can have the impact of pressuring the u.s. government to continue prioritizing the issue on the domestic front. abortion rights activists worldwide can urge their own nations to use these mechanisms to continue to hold the u.s. accountable for stripping women of their fundamental right to abortion. in the wake of dobbs, feminists worldwide have naturally been on alert, concerned about the global reverberations of the decision and its potential to strengthen the hand of abortion opponents. given this possibility, keeping external pressure on the u.s. is in the interests of feminists globally, to ensure that the u.s. remains an outlier even as abortion rights activists work against any policy backsliding in their own countries. __________________________________________________________________________________ 10 __________________________________________________________________________________ 11 notes on contributors __________________________________________________________________________________ feminists@law vol 2, no 1 (2012) _________________________________________________________________________________ notes on contributors breny mendoza (ph.d. cornell university) is a honduran professor of gender & women’s studies at california state university, northridge. she has published several articles in both english and spanish on topics related to transnational feminisms, latin american feminisms, decolonial feminisms, and mestizaje. her more recent work focuses on the coloniality of knowledge and democracy. she has published a book in spanish on the honduran feminist movement, sintiéndose mujer, pensándose (editorial guaymuras, tegucigalpa, honduras, 1996); and she is co-editor of rethinking latin american feminisms (latin american studies program, cornell university, volume 5, 2000). her book pensamiento feminista latinoamericano de otro modo will be published in 2012 by en la frontera, buenos aires, argentina. julieta lemaitre is an assistant professor at the universidad de los andes law school. she holds a law degree (ll.b.) from the universidad de los andes (1995) as well as an m.a. from new york university (1998) and an s.j.d. from harvard law school (2007). she has won scholarships from colfuturo, harvard law school, and the harvard-los andes fund. since 1997, she has collaborated with the center for reproductive rights’ international program in new york. her areas of research are women’s rights, sexual and reproductive rights, law and ideology, and violence against women. she forms part of the research group on law and social transformation (ideas) and the gender and the law research group. her publications include el derecho como conjuro (2009), translated in english as legal fetishism, and cuerpo y derecho (translated in english as bodies on trial) with monica roa and luisa cabal (2001). she has also written articles on the legal mobilization of social movements in colombia, the judicial protection of social and economic rights, the inclusion of feminism in legal education, the rights of same sex couples, and domestic violence.  amy lind is mary ellen heintz endowed chair and associate professor of women’s, gender, and sexuality studies at the university of cincinnati, where she also served as graduate director during 2008-2011. she has published on gender, development, globalization, and sexual politics in the americas, with an emphasis on gendered forms of resistance to neoliberal governance and modernity. more recently, she has focused on family norms, political homophobias, and the shift to the left in latin america. she is the author of gendered paradoxes: women’s movements, state restructuring, and global development in ecuador (penn state university press, 2005), and editor of four volumes, including development, sexual rights and global governance (routledge, 2010) and feminist (im)mobilities in fortress north america: identities, citizenships and human rights in transnational perspective (ashgate publishing, 2012, co-editor). currently, as a 2011-2012 charles phelps taft center fellow, she is completing a book-length manuscript on sexual politics, social reproduction, and post-neoliberal governance in ecuador, with comparative examples from bolivia and venezuela. catherine walsh is professor and director of the doctoral program in latin american cultural studies at the universidad andina simon bolivar in quito, ecuador. in the u.s., dr. walsh worked for over a decade with the puerto rican and mexican american legal defense fund, the naacp, and the lawyers’ committee for civil rights.  she was also one of the founders, along with paulo freire, of a national network of critical pedagogy.  in latin america, dr. walsh has a long record of collaboration with indigenous organizations and more than a decade of close ties with afro-descendant organizations throughout the region. some of her recent activity includes: advising the national constituent assembly in ecuador (which drafted the nation’s new constitution), working on a national program of affirmative action in ecuador, and engaging in the debate towards the construction of a plurinational state. see http://catherine.walsh.blogspot.com. professor walsh’s research interests include the geopolitics of knowledge, interculturality and concerns related to the afro-andean diaspora and the production of decolonial thought. among her recent publications are pensamiento crítico y matriz colonial (quito: abya yala, 2005), “interculturality and the coloniality of power. an ‘other’ thinking and positioning from the colonial difference,” in coloniality of power, transmodernity, and border thinking, r. grosfoguel, j.d. saldivar, and n. maldonado-torres (eds.) (durham: duke university press); “shifting the geopolitics of critical knowledge: decolonial thought and cultural studies ‘others’ in the andes,” cultural studies, 2007; and “political-epistemic insurgency, social movements and the refounding of the state,” in mabel moraña (ed.), rethinking intellectuals in latin america (madrid: iberoamericana, 2010). ______________________________________________________________ 2 ______________________________________________________________ 1 walsh of neo-constitutionalisms, lefts, and (de)colonial struggles _________________________________________________________________________________________________________ feminists@law vol 2, no 1 (2012) _________________________________________________________________________________________________________ of neo-constitutionalisms, lefts, and (de)colonial struggles. thoughts from the andes in conversation with breny mendoza catherine walsh[footnoteref:1]* [1: * professor and director of the doctoral program in latin american cultural studies, universidad andina simón bolívar, quito, ecuador. cwalsh@uasb.edu.ec ] the legal or constitutional normative changes are coming to be tools, not the solution. nina pacari (2011) as a historical indigenous woman leader, attorney, and now magistrate in ecuador’s constitutional court, nina pacari speaks to the lessons learned, and to both the limitations and possibilities of constitutional transformation. in this sense, breny mendoza is correct in arguing: “social justice cannot de decreed.” yet for those of us involved in latin america in the present processes of sociopolitical transformation, the role of state, constitutions and law in helping to push social justice and build a radically distinct society cannot be denied. still, they are certainly not enough. moreover, as monocultural and westernized institutions historically conceived with relation to dominant interests, states, constitutions, and laws are always riddled with limitations and contradictions, even when reconceived in the realm of the “left turn”, decolonial struggles, and progressive politics. the problem then, as we are learning in ecuador and bolivia, is mid-way between breny’s cautions of not expecting too much from constitutions, law, and state, including their capacity for structural change and for “decouple(ing) from the logic of neoliberal capitalism,”, and the hope, installed in the constituent assemblies and the constitutions themselves. such hope alludes to the possibility of transgressing and dismantling the coloniality of power and initiating an intercultural and plurinational social project. however, it does not assume or portend that decolonization can or should be written into law. in what follows, i reflect on this problematic based on the experiences being lived today in ecuador, and to a lesser extent in bolivia, and in conversation with breny’s paper. the organization of these reflections is with regard to two interrelated themes: “constitutionalism and constituent assemblies otherwise,” and “the state, the “left”, and the decolonial,” considering at the end what all this suggests for breny’s proposition of intersectional politics. constitutionalism and constituent assemblies otherwise constitutional assemblies and constitutionalism in latin america have typically been spaces for party-based and party-controlled political reforms. however, they have also more recently, and in at least some countries, been spaces to bring to the fore historically negated and/or subalternized voices, concerns, and rights. such was the case with the colombian constituent assembly in 1990-91 and the ecuadorian assembly of 1997-98. here the recognition of indigenous and afrodescendant peoples’[footnoteref:2] ancestral rights, and judicial pluralism, as well as an attention to concerns of gender, opened a new phase of constitutional politics, in what some have referred to as multicultural constitutionalism. the problem, of course, is that such politics and reforms did not take seriously social movement demands, nor did they portend to push structural change. rather, they were part and parcel of the multicultural logic of transnational global capitalism particularly prevalent in latin america in the 1990s. the defining characteristic of this constitutionalism was its “inclusion” of those peoples historically excluded, an inclusion that, instead of altering, strengthened the structures and systems of power. [2: in colombia the recognition of afro-colombians did not occur with the assembly and the subsequent charter but rather two years later as a demand of afro movements, and within law. ] the recent constitutionalism in ecuador affords a deep contrast to the previous model. not only does it take distance from what president rafael correa has repeatedly called “the long neoliberal night”, but also, and equally if not more importantly, thinks with andean non-western-centric logics and rationalities. the naming of pachamama, the identifying of sumak kawsay or buen vivir (roughly translated as living well or collective well-being) as the philosophical and orientating force of the new social project, the recognizing of the rights of nature, and the positioning of ancestral knowledges as also “scientific” and as necessary components of education, among other advances, turn previous constitutions on their heads.[footnoteref:3] [3: similar points can be argued with regard to the bolivian constitution although, as i have pointed out elsewhere, the ecuadorian charter is much more radical in its challenges to the western paradigm (see walsh, 2009, and walsh, 2010). ] legal scholar-activists boaventura de sousa santos (2010) and ramiro ávila (2011) refer to his new moment as “transformative neo-constitutionalism.” as ávila explains, neo-constitutionalism brings together the most innovative elements of contemporary constitutionalism that have been developing in europe since the middle of the 20th century and that mark an important distinction with judicial positivism and formalism. …”transformative” intends to demonstrate the advances of our own andean constitutionalism that are totally novel to the contemporary frame. (p.16) what is of fundamental importance here, in my mind, are the efforts engendered first in the constitutional assembly and later in the charter, to challenge, transgress, and transcend the universalized eurocentric and modern-colonial model. that is, not to simply “include” that which historically has been subjugated, denied and negated, but instead to “think with” these subjects, knowledges, and cosmic or life-visions. of course it was the two-decade struggle of the country’s indigenous movement that laid the ground for the assembly, for the challenges to the universalized, western, and modern-colonial frame, and for the visible presence of knowledges and visions otherwise. as breny argues, such context is certainly distinct from that of honduras. still, and as i will argue here, there is much to be learned from the ecuadorian experience. in its organization and practice, the ecuadorian constitutional assembly worked pedagogically to engender, enable, and push this “thinking with”.[footnoteref:4] the popularly elected assembly women and men did not represent political parties but social and political movements and varied social sectors and regions of the country. most were new to the political arena, were of a younger generation, and were there to contribute to the learning, thinking, and debate entailed in the shaping and making of the constitution. organization was through thematic mesas that endeavored to study the issues of concern with readings, discussions and debates, and invited presentations. only with consensus and profound understanding did these mesas then propose to the plenary the articles for consideration. as one of the invitees and as an ongoing unofficial advisor to an afro-ecuadorian assembly woman, i can attest to the sociopolitical, epistemic, and pedagogical significance of this practice and process. [4: however, this pedagogical practice was dismantled in the last few weeks of the assembly. president correa’s push to hurry up the approval process of the new constitution and pass the articles with little or no debate resulted in a major shift of the processes heretofore engaged and the resignation of the then president of the assembly and political-pedagogical leader alberto acosta. ] it is in this sense that we can understand the call for a constitutional assembly by the honduras resistance front and the hope attached to this call expressed by the honduran playwright rafael murillo selva and cited by breny. that is to say, a constituent assembly that does not just write a new charter but, in the process, contributes to and is part of the developing consciousness and transformation. here the constitution is not just a product; it is a medium and tool for change. the fact that the front has, as breny points out, “chosen as its main strategy the refoundation of the country through a constitutional assembly that elaborates, with the direct participation of the people, a new constitution” should be understood, in my mind, as just that: a strategy. moreover, it is a strategy that should not make the constitution the only vehicle of change, a vehicle, which we know, can be easily overturned by a right-wing change in government. it is a strategy that should work to build a long term project and perspective, overcoming the short-term action and vision characteristic of latin american’s social movements. and finally, it is a strategy that should proceed with caution in considering the agency and positioning of the state. here the experiences of both ecuador and bolivia afford important lessons about the state, but also about the so-called left and the complexities of decolonial struggle. the state, the “left”, and the decolonial the move from a weak to a strong state is a key component of today’s progressive politics and constitutional and political transformations. in this transformation, the state is repositioned as the political social authority. the president embodies the state; as ecuadorian president rafael correa has repeatedly proclaimed: “ i am the state.” while much can be said about this authority and embodiment not only in ecuador but also in both similar and different ways in venezuela and bolivia, i will highlight only a couple of concerns here. first is the concern of power. in today’s practice of a strong state, there is not a new configuration of power or a critical revision of the models of thinking and exercising power, as breny suggests should occur. rather there is a consolidation of power that, in essence, reifies the state. it is the state that has the final say; participation of social sectors and community consultation are tokens in this regard. here it could be said that in ecuador, but in many ways in bolivia as well, the state, despite its “progressive” stature, defies the constitution and denigrates its process and goals. an illustrative example is the ecuadorian mining law passed several months after the popular approval of the constitution. this law gives the freedom to prospect without community permission and calls for participation and consultation only after concessions have been granted, thus violating the consultative process described in the charter’s art. 57:7 and the active community participation in decision-making present in art. 395:3. it guarantees rights and access to mining companies over collective and ancestral rights (going against various constitutional principles, including in the areas of collective rights, the rights of nature, and rights pertaining to biodiversity and natural resources), and it criminalizes those who disrupt mining activities. the recent conflict in bolivia around the building of a brazilian-financed highway through the indigenous and natural reserve of tipnis, an area already targeted for hydrocarbon exploration and exploitation, affords a similar example.[footnoteref:5] in both cases, power remains paternalistic, still engrossed in the paradigms of accumulation and progress; state-controlled neoextractivism is one of its central spheres. [5: for a more detailed discussion of both problematics see walsh (2011).] the second concern has to do with the nature of this power and its present-day configurations. an example is the embodiment and configuration of the ecuadorian state in the president, which recalls and reinstalls power in patriarchal form. correa personifies the short-tempered macho male, the father figure who not only knows what is best for all, but who also punishes all who question, criticize, or cross him. the criminalization of social protest, the naming of the feminist ecological and the indigenous movements as “infantile”, the arrest of over 200 indigenous leaders under charges of state terrorism and sabotage, and the legal claims of verbal defamation and assault made by the president against critics, are illustrative. what we are learning is that while a constitution may, as is the case of ecuador, give process, substance, and hope to transformation, to the dismantling of the colonial matrices of power, and to the construction of a new collective social project, government and/as state can coopt, signify, and define politics, law, and even change on its own terms. moreover, it can call for the elimination of the collectivities that made possible the process and the radicality of the charter, on the grounds that that they are, as correa portends, obstacles to the “citizens’ revolution” and its project of progress and modernization. of course all this brings to the fore the questions of the decolonial and the “left” that breny highlights in her paper. the “turn to the left”, as an ideological-political tendency, does not necessarily, nor typically, imply a decolonial project. in fact, the left’s historical exclusion of women, indigenous, and african descended peoples in latin america and its assuming as “natural” the trope and practice of hetero-normativity, is demonstrative of its inability to see how the coloniality of power is foundational to the region and to the continued patterns of racialized, genderized, and sexualized domination and oppression. in this sense, neither ecuador nor bolivia’s governments can be described as decolonial. at least in ecuador (and increasingly it seems in bolivia), there is not only no commitment to decolonization, but, as many now argue, to what might be termed a left perspective and project, although the meaning of “left” itself these days, as breny mentions, is also a matter for scrutiny and debate. constitutionalism in both bolivia and ecuador were in fact conceived less as leftist interventions and more as processes and projects that took distance from the west[footnoteref:6] and opened paths towards interculturalization and decolonization. in this sense, transformative neo-constitutionalism challenged the hegemony and ideology of the western right-left binary. it gave place and space to pachamama, to the still-present racialized-genderized colonial matrices of power, and to the subjects who have long struggled in its margins. and, in so doing, it spoke to lived realities in ways that no other political charter in the world has done. the problem, as we have seen here, is, on the one hand, translating transformative neo-constitutionalism into practice and, on the other, assuming that government as/and the state takes such vision and practice as its own. [6: walter mignolo argues that given present-day politics in the global (dis)order, a better term to describe the shifts in latin america today is “de-occidentalization”. see mignolo (2011).] final reflections again taking up the concerns expressed in breny’s paper, the issue should not be one of simply “taking state power,” whether that be by the “left” or by, in the case of honduras, the national resistance popular front. what is more critically needed is the building of a radically distinct social project. that is, projects in which social movements do not become the state (thus losing their essence and agency as social movements), nor are eliminated by the state (as ecuador is endeavoring to do), but are instead active participants in pushing what breny refers to as “political methodologies.” by this, i mean methodologies that work in alliance and from the bottom up, revealing, confronting, and transforming the existential, ontological, and epistemic dispositives of power that are reconstructed in daily life, including in spaces of “progressive” and movement-based politics: dispositives that dehumanize, silence, and violate despite enlightened laws, radical constitutional reform, counterhegemonic rhetoric, and so-called state refounding. this is where the feminist intersectional coalition politics that breny mentions at the close of her paper can play an especially important role. this role should involve not just guiding the constitutional process, since as we know neither social justice nor decoloniality can be decreed, but, more importantly, it should involve articulating and addressing the complex intertwinement of gender, race, class, and sexuality constitutive of the matrices of modern-colonial power lived in the particular specificity of these americas of the south, from honduras to the andes, and beyond.[footnoteref:7] [7: such concern has been the focus of breny’s work elsewhere. see for example mendoza (2010). ] in closing, it seems fitting to repeat audre lorde’s famed words, re-spoken by breny: “the master’s tools will never dismantle the master’s house.” yet, and in the context of the reflections presented here with relation to the processes and pedagogies of transformative neo-constitutionalism, it may be more fitting and useful to adjust the credo as lewis gordon and jane anna gordon (2006) have done in a different but not totally dissimilar context: “not only the master’s tools.” as the experiences present and emergent in latin america suggest, constitutions are no longer just the tools of the dominant political forces grouped in the state. they are also the tools of those of us who struggle to build a more just social world, a radically distinct ethos, and a political-pedagogical praxis grounded in hope and a project of decoloniality. what we do with these tools, whether that be in the forthcoming processes in honduras, or in the cases of bolivia and ecuador mentioned here, is the question that still needs to be concretely addressed. references ávila, ramiro. el neoconstitucionalismo transformador. el estado y el derecho en la constitución de 2008, quito: ediciones abya-yala/universidad andina simón bolívar, 2011. gordon, lewis r. and gordon, jane anna. “introduction: not only the master’s tools,” in l.r. gordon and j.a. gordon (eds.), not only the master’s tools: african-american studies in theory and practice, boulder: paradigm, 2006. mendoza, breny. “la epistemology del sur, la colonialidad del género y el feminism latinoamericano,” in yuderkys espinosa miñoso (coord.), aproximaciones críticas a las prácticas teórico-políticas del feminismo latinoamericano, buenos aires: en la frontera, 2010. mignolo, walter. “hacia la desoccidentalización,” página 12, buenos aires, december 6, 2011. http://www.pagina12.com.ar/diario/elmundo/4-182727-2011-12-06.html pacari, nina. “nina pacari: la convivencia de distintas formas de producir conocimiento debe incidir en la resolución de conflictos de un país, de una sociedad pluricultural,” interview, universitat de barcelona, january 2011. http://www.ub.edu/web/ub/es/menu_eines/noticies/2010/entrevistes/ninapacari.html santos, boaventura de sousa. “la dificil construcción de la plurinacionalidad,” in senplades (comp.), los nuevos retos de américa latina: socialismo y sumak kawsay, quito: senplades. walsh, catherine. “afro and indigenous life-visions in/and politics: (de)colonial perspectives in bolivia and ecuador,” bolivian studies journal, no. 18, 2011. http://bsj.pitt.edu/ojs/index.php/bsj walsh, catherine. “political-epistemic insurgency, social movements and the refounding of the state,” in mabel moraña (ed.), rethinking intellectuals in latin america, st. louis: washington state university, 2010. walsh, catherine. interculturalidad, estado, sociedad: luchas (de)colonials de nuestra época, quito: universidad andina simón bolívar/ediciones abya-yala, 2009. _________________________________________________________________________________________________ 2 _________________________________________________________________________________________________ 1 debra parkes abolitionist (un)learning __________________________________________________________________________________ feminists@law vol 12, no 1 (2023) __________________________________________________________________________________ abolitionist (un)learning: reflections on decarcerating disability and disability, criminal justice and law debra parkes[footnoteref:1]* [1: *chair in feminist legal studies, peter a. allard school of law, university of british columbia, canada parkes@allard.ubc.ca ] abstract reading decarcerating disability: deinstitutionalization and prison abolition by liat-ben-moshe and disability, criminal justice and law: reconsidering court diversion by linda steele rocked my world, in the very best way. they pushed me to think in new ways about my research, teaching, and activism and are must-reads for those of us working for abolition in, through, and against law. i came to prison abolitionism through feminism. i have looked at the massive expansion of women’s imprisonment in canada in recent decades and the way that carceral and colonial logics drive the mass incarceration of indigenous people, and examined the harms of so-called “gender-responsive” reform efforts (parkes 2016). my research and teaching examine the possibilities, but also very significantly the limitations, of prisoner rights litigation and other rights-based or legal strategies as part of an abolitionist vision (parkes 2017). decarcerating disability: deinstitutionalization and prison abolition (ben-moshe 2020) and disability, criminal justice & law: reconsidering court diversion (steele 2020), both of which are deeply feminist, abolitionist and rooted in disability justice and crip theory and activism, challenge me to expand these critiques and pedagogies. liat ben-moshe’s decarcerating disability: deinstitutionalization and prison abolition takes a deep dive into deinstitutionalization (particularly in the american context in the latter half of the 20th century) and makes connections between deinstitutionalization in the disability context and incarceration and abolition. the book shows how deinstitutionalization is both a phenomenon and a logic. mass deinstitutionalization – the feat of getting people out of disability-based carceral spaces – is a thing that happened, a phenomenon to be investigated and understood by those of us who want to free people from prisons and other carceral spaces, to end our reliance on incarceration. decarcerating disability helps us do that by attending to the ways that abolitionist thinking and organizing, particularly as it manifests in some elements of the deinstitutionalization movement, can (and have) successfully centred the most severe or challenging cases. this logic of deinstitutionalization runs counter to the incrementalism of decarceration efforts focused on the “non non nons” (non-violent, non-serious, non-sexual offences). it unmasks the state violence of incarceration and institutionalization and does not leave it to the state to define what violence means (ben-moshe 2020, 124). this activist history, and the logic that undergirds it, has resonance for how we relate to the “dangerous few” who are so often cited as a challenge to abolitionism and left to the side of advocacy efforts. ben-moshe shows how the tactic of starting with the most “challenging” work is a deeply feminist praxis, drawing on bell hooks and the act of shifting the margins to the centre (ben-moshe 2020, 125). my current work on the normalization of life sentences and what it means to centre people serving life sentences for murder in our abolitionist movements (parkes 2021), is indebted to these insights from decarcerating disability and ben-moshe’s earlier work. on deinstitutionalization as both a phenomenon and a logic, ben-moshe argues that it is “essential to interrogate deinstitutionalization as a social movement, a logic to counter carceral logics… [d]einstitutionalization is not just something that ‘has happened’ but was a call for an ideological shift in the way we react to difference among us” (ben-moshe 2020, 2). decarcerating disability challenges those of us who are used to calling out carceral logics – including in “progressive” campaigns – to also attend to the deeply ableist and debilitating logics that are embedded in carceral systems and in a lot of advocacy for decarceration and prisoner rights (see also wildeman 2020). the disabling nature of incarceration and whose bodies are available for capture must be understood as core features of incarceration and institutionalization (ben-moshe 2020, 9). this connection of criminalization to pathologization is fundamental to the perpetration of state violence and incarceration of all kinds. linda steele’s disability, criminal justice & law: reconsidering court diversion picks up similar themes, bringing an analysis of debility (puar 2017) and the bifurcation of disability. for some, disability can be celebrated through rights discourses and access to some individual remedies, with a focus on capacity. however, for others, particularly criminalised disabled people, disability is about deprivation and a process of positioning populations in an ongoing state of precarity through disability — of systematic deprivation and violence. steele shows how this bifurcation is not accidental. it is a feature, not a bug, of the neoliberal white settler nation-state and she examines law’s role in enabling debilitation through seemingly progressive moves such as court diversion. disability, criminal justice & law demonstrates how law is crucial to ensuring that court diversion is viewed as humane and just, while also operating to shore up mainstream carceral responses by being positioned as an “alternative”. importantly, both books locate their analysis within critiques of settler colonialism. steele says that one of the ambitions of disability, criminal justice & law is to “forge new sociolegal connections between disability, law and settler colonialism” (steele 2020, 10). that ambition can be seen throughout the book, particularly in the narrative of molly, a composite hypothetical indigenous criminalized disabled woman who is in and out of child welfare, court diversion, prison, and other state carceral institutions throughout her life. court diversion or disability rights based legal processes do not do any form of justice for her. they do not comprehend or challenge the structural conditions of her life under settler colonial law. steele challenges the reader to contemplate what a decolonizing, abolitionist, disability justice approach would look like for molly. in this vein, while steele’s book presents a compelling critique of disability court diversion, her chapter 8 is refreshingly forward-looking. it provides ideas and provocations for teaching, activism, and research. steele sketches out a number of existing transformative, abolitionist strategies that are aimed at dismantling the institutional carceral archipelago (steele 2020, 209; referencing foucault 1977) including prison but also other forms of institutionalization, in line with decarcerating disability. chapter 8 of disability, criminal justice & law lists seven distinct strategies but i will touch on just two that i have found particularly generative. in calling for the advancement of a critical disability legal pedagogy, steele asks, “what should our ethical responsibilities be to those whose injustices we bear witness to, as lawyers, activists and legal scholars; and how can we begin to develop in law students the critical awareness and skills through which to meet these responsibilities?” she describes how negative ontologies of disability are deeply embedded in and through law. they “underpin core legal concepts such as capacity, rationality and reasonableness, and they order legal domains, all of which makes possible and natural differential access to liberal legal citizenship and full humanness” (210). despite the growth and vibrancy of critical disability studies and crip critical theory in recent years, law schools – even progressive classrooms where critical perspectives are common – have largely missed this turn and its implications for our teaching. steele cites sherene razack (2015) on the pedagogical practice of inviting students to examine their complicity in ongoing colonialism. at the law school where i teach, we have introduced a mandatory indigenous-settler legal relations course that has examining such complicity as one of its objectives. however, steele shows how there is much more work in this vein to do in legal education. she argues compellingly that: legal teachers need to be aware that because they are, in effect, teaching violence when they teach law without critical reflection on disability… they are representing violence—both against disabled people and through legal ontologies of disability—as rightly lawful and just, and this sustains other dynamics and forces of oppression. (210) disability, criminal justice & law also calls for a strategic, critical engagement with human rights in our deinstitutionalization and abolitionist work. steele is critical of the way that the united nations’ convention on the rights of people with disabilities has been interpreted and mobilized as anti-disability-specific but not anti-carceral. this is true of essentially all human rights instruments, such as the canadian charter of rights and freedoms and canada’s statutory human rights laws that have grounded many prisoner rights claims. nevertheless, steele suggests that human rights strategies and litigation are political tools that can be deployed “where their use can disrupt rather than fold back into biopolitical control” (216, citing golder 2015). they can be used tactically in ways that challenge rather than reinforce power relations. i have argued that a prison abolitionist lawyering ethic requires asking whether a particular legal argument or remedy reinforces or challenges carceral logics. however, steele and ben-moshe provoke those of us who work with legal strategies to inquire further: does our work challenge or undermine debilitating logics (and colonial logics)? these inquiries connect back to ben-moshe’s nuanced analysis of litigation against prisons and institutions and what our movements might learn from these histories. the call is to move beyond “simplistic questions of whether certain lawsuits were successful to more wide-reaching questions about what reform litigation did, cumulatively,” to see the politicizing effects as well as how these efforts sometimes ushered in more effective ways to incarcerate (231). as ben-moshe argues compellingly, abolition is a dis-epistemology, a “letting go of certain ways of knowing in order to gain others, unlearning in order to learn” (283). both books are full of challenging and rich insights, including much unlearning for abolitionist legal scholars and students. references ben-moshe, liat. 2020. decarcerating disability: deinstitutionalization and prison abolition. minneapolis: university of minnesota press. foucault, michel. 1977. discipline and punish. alan sheridan, trans. new york: random house. golder, ben. 2015. foucault and the politics of rights. stanford: stanford university press. parkes, debra. 2021. “starting with life: murder sentencing and feminist abolitionist praxis.” in building abolition: decarceration and social justice, edited by kelly struthers montford and chloë taylor, 151-164. london: routledge. parkes, debra. 2017. “solitary confinement, prisoner litigation, and the possibility of a prison abolitionist lawyering ethic.” canadian journal of law & society / revue canadienne droit et société, 32(2): 165-185. parkes, debra. 2016. "women in prison: liberty, equality, and thinking outside the bars." journal of law & equality, 12:127-156. puar, jasbir. 2017. right to maim: debility, capacity, disability. durham & london: duke university press. razack, sherene. 2015. dying from improvement: inquests and inquiries into indigenous deaths in custody. toronto: university of toronto press. steele, linda. 2020. disability, criminal justice and law: reconsidering court diversion. london: routledge. wildeman, sheila. 2020. “disabling solitary: an anti-carceral critique of canada’s solitary confinement litigation.” in disability, law and policy in the ‘deinstitutionalised’ community, edited by claire spivakovsky, linda steele and penelope weller. london: bloomsbury. __________________________________________________________________________________ 4 __________________________________________________________________________________ 3 drakopoulou and davies introduction __________________________________________________________________________________ feminists@law vol 2, no 1 (2012) introduction: gender equality and othering in the swedish welfare state maria drakopoulou[footnoteref:1]* and margaret davies[footnoteref:2]** [1: * reader, school of law, university of kent, uk. m.drakopoulou@kent.ac.uk. ] [2: ** professor, school of law, flinders university, australia. margaret.davies@flinders.edu.au. ] the papers in this special section of feminists@law represent an attempt to acquaint an english speaking audience with some of the key issues currently occupying swedish feminist legal scholars. this is not to say however, that the collection presented here should be seen as in any way a complete illustration of the swedish feminist legal landscape. rather, the idea is to allow the reader to catch some revealing glimpses of the workings of the swedish feminist legal mind in the context of gender equality law. the validity of this endeavour therefore is not to be found in its comprehensiveness. it instead lies in its promoting an understanding of specifics of the feminist engagement with and critique of swedish gender equality law and policy through contributors’ discussions of major themes of western feminism motherhood, labour, immigration, disability and sexual exploitation. the nordic countries have been widely commended for having achieved a high degree of gender equality, a reputation which has gained them the label of ‘women-friendly societies’. among them, sweden has been particularly praised for its distinctive approach to gender equality; one which has resulted in the implementation of highly progressive and comparatively successful gender equality policies. more specifically, the swedish approach to gender equality is one based upon values of social solidarity and citizenship and, as such, has been directed at the pursuit of both material and substantive equality through proactive rather than reactive measures (svensson and gunnarsson in this issue). in addition, for some decades now, equality has been regarded as an official objective of the swedish state, with the structural integration of equality-related policies being seen as a fundamental responsibility of the welfare state. this approach stands in marked contrast with that which the ideology of liberalism fosters, an approach which the more politically liberal and neo-liberal countries, in particular the english-speaking, ‘western’ countries, have adopted: namely one grounded upon the valorisation of formal equality and individual rights. however, despite the undeniable successes and accolades won in progressing equality in many areas of society, as the papers presented here clearly demonstrate, it would be a mistake to idealise the situation of gender politics in sweden. a number of ‘blind spots’ remain. to quote eva-maria svensson and åsa gunnarsson from their comprehensive review and analysis of the swedish equality framework: …. in fact, the swedish state has shown a lack of ambition to fully challenge the gendered segregation of the labour market, to change the uneven distribution of economic and political power in many sectors of society, and to fulfil the political goal of shared parental responsibilities (svensson and gunnarsson, pp.1-2). in looking across this collection, two major themes emerge as being conducive to or productive of these ‘blind spots’. perhaps the most obvious derives from new global conditions which have given rise to a number of intersectional issues not previously encountered within swedish society; a society which, until quite recently, has been relatively homogenous in a cultural sense. as a result particular groups of marginalised women have been identified who do not enjoy the same fruits of gender equality policies as those in the mainstream, and for whom equality is presumed rather than proactively sought and defended. examples are found in the way in which domestic violence and trafficking is dealt with in various areas of law. sweden has taken an active and somewhat innovative approach to dealing with domestic violence within its criminal law, notably with the women’s peace reform of 1999 (see burman), and it has regarded domestic violence, as well as prostitution and trafficking (yttergren), as being integrally connected to gender inequality. yet such progressive developments are not always extended to embrace and address the needs of cultural ‘others’ present in swedish society. indeed, there appears to be significantly less willingness on the part of the law and the agencies of the welfare state to acknowledge the difficult situations in which culturally diverse groups of women find themselves; for instance, women who seek asylum because of domestic violence perpetrated against them in their home countries (nilsson), or women who, having migrated to sweden with residence rights that are reliant on the existence of a ‘marriage’ relationship with a man, are subsequently subjected to domestic violence within that relationship (burman). the other, perhaps somewhat unexpected, theme, yet one vividly illustrated by many of the articles in this collection, is the changing political and legal environment arising from the country’s participation in the european union. what seems to emerge as a central concern in the papers exploring the ‘collision’ between the swedish approach to gender equality and the liberal discourse on gender equality associated with the european union, is that the more liberal, market-orientated eu legal discourse places a strain on particular aspects of the swedish welfare and equality system. this, it is argued, serves to create a pattern of gendered differences that follows the conventional divisions between the sexes. thus for example, it is argued that the current institution of more liberal and individualised workplace laws tends to favour men rather than women (ulander-wänman). similarly, changes in the structure of welfare provision lead towards a less redistributive and needs-based system (wennberg), and to a curtailing of positive discrimination or affirmative action measures (svensson and gunnarsson). critical engagement with the liberal discourse on equality is however, not always seen in the negative, as the analysis of transport law for people with disabilities demonstrates (pettersson). in engaging with the ways in which the swedish law, in its pursuit of ‘universal’ welfare and equality relies upon and in turn constructs a certain understanding of ‘the normal’, pettersson’s paper clearly highlights the tensions arising in the sphere of disability law between the swedish conceptions of autonomy, freedom and rights, and those promoted by liberal jurisprudence. feminist legal scholars have returned relentlessly to discussions of equality and rights, and perhaps one could question the wisdom of providing yet one more such discussion. we believe however, that in introducing this collection of papers with their distinct critical focus, we are not committing the sin of repetition. the discursive space opened by the critical engagement with the history and current state of swedish gender equality law and policy, should not be easily dismissed as either just another example of the same or as something of a curiosity, a place to meet a way of thinking from a different part of the world. rather, it should be welcomed as a space which reminds us that we always have the possibility of thinking about gender equality otherwise. __________________________________________________________________________________ __________________________________________________________________________________ 1 [type text] lind intimate governmentalities _________________________________________________________________________________________________________ feminists@law vol 2, no 1 (2012) _________________________________________________________________________________________________________ intimate governmentalities, the latin american left, and the decolonial turn. amy lind[footnoteref:1]* [1: * mary ellen heintz endowed chair and associate professor of women’s, gender, and sexuality studies, university of cincinnati, usa. amy.lind@uc.edu ] breny mendoza raises several key questions about the turn to the left and/or the decolonial turn in latin america, particularly as this transformation is playing out in honduras. as she points out, in honduras social movements are at the forefront of resistance not only to the coup but also to various forms of modern/colonial power. like in honduras, in countries that have shifted to the left at the state level (e.g., ecuador, bolivia, venezuela), many activists and critical scholars have pointed out the multiple processes taking place simultaneously, and as part of this, the ongoing contradictions among the goals of social movements and those of socialist states. the move by indigenous movements and other activists, as well as that of cultural studies scholars, to rethink the dualisms that so pervade colonial/modern logic, including that of (neo)developmentalism, capital and citizenship, is perhaps at the center of the many ongoing struggles we see concerning how to imagine and institutionalize “another world.” this “another world” has been addressed in various ways, from theorizing another form of production to producing alternative form(s) of knowledge – questions that have great ontological, epistemological and political significance, at least when posed by those interested in a truly decolonial turn. as breny alludes to, the honduran resistance movement’s emphasis on constitutional reform exemplifies the strategy used by other left-turning governments to remake the nation. much of the emphasis, at least originally and on the surface, has been on latin american states’ shift away from the global neoliberal agenda; that is, on the anti-neoliberal or post-neoliberal turn. as arturo escobar points out (2010), latin america was the first region to undergo structural adjustment measures – of the most extreme kind, inspired by harvard university’s jeffrey sachs – and also the first where states so widely adopted (often forcibly) a world bank/imf inspired neoliberal restructuring agenda. yet more recently it was also the first to resist the inequalities emerging from that process and from modern/colonial capitalism more generally, including perhaps most notably in the turn to the left, which we have now seen in up to twelve countries, or about two-thirds of the region, to varying degrees. i want to respond to breny’s commentary by focusing on an example of constitutional reform that has already occurred: namely, that of the 2008 ecuadorian constitution and the broader revolución ciudadana that president rafael correa (2007-present) has promoted. i’ll also bring in some examples from the 2008 bolivian constitution and evo morales’ mas (movimiento al socialismo) administration (2006-present). as i have followed the debates within social movements and in the constitutional assembly process, a few key disjunctures stand out, including the following: (1) the well-known disjuncture between the turn to the left and the decolonial turn; (2) a lack of analysis of the governance of intimacy (lind 2010a) and biopolitics in both leftist and decolonial accounts of “another world”; and (3) decolonial vs. liberal challenges posed by activists in the remaking of latin american nations. first, for the most part i would argue that the ecuadorian state is not participating in a decolonial turn but rather in a turn to a leftist form of alternative modernization, akin to chavez’s production regime in venezuela, morales’ in bolivia, and bachelet’s center-leftist concertación in chile (among possible others). i state this with the caveat that of course one can find many examples of decolonial strategies in ecuador, including in the constitution itself, yet mostly the ecuadorian state is focused on alternative modernization. as in bolivia, venezuela and chile, the ecuadorian state has continued to rely on the extraction of hydrocarbons and other resources; this is so despite the fact that the 2008 constitution grants nature equal rights to human beings and generally advocates “well-being” over economic growth (“well being” being the translation of sumaq kawsay in quichua or el buen vivir in spanish). and to make matters worse – what analysts could not have predicted when the correa administration was first inaugurated – when indigenous communities have resisted the state’s developmentalist presence, including its ongoing exploitation of nature and endorsement of the nature/culture dualism despite the new constitutional language, they have been repressed. most sectors of the organized indigenous movement have been alienated by the correa administration; currently there is little dialogue between the two. and although bolivian president morales himself identifies as indígena, he too has alienated indigenous and peasant communities in eastern lowland bolivia concerning his administration’s plans to build a highway on their land – a direct blow to local communities and also a denial of his own constitution’s declaration of nature as having constitutional rights. in chile, indigenous protestors of bachelet’s policies were arrested and labeled as terrorists (richards in press). what these leaders are discovering (or perhaps what they are having confirmed) is that while they can create an anti-neoliberal agenda, they cannot necessarily create a post-capitalist economy based on non-capitalist forms of social and economic life, nor a post-liberal order that transcends liberal classifications of identity. there are glimpses of this, within the state and outside. for example ecuador’s national plan of living well attempts to institutionalize the “solidarity economy” alongside the capitalist economy, and the 2008 constitution provided for an inequality council which would, in theory, address five axes of inequality based on race, ethnicity, ability and gender in an intersectional and transversal way. this has yet to be institutionalized, however. moreover, we can see clear attempts within social movements to create a post-capitalist economy that challenges the modern/colonial versions of governmentality found in these states. but regardless one must distinguish between the political ideals of 21st century socialism envisioned by social movements, on one hand, and on the other, the kinds of governmentalities created by these socialist states. the second disjuncture i see draws from the above scenario and speaks to how the governance of intimacy – or intimate governmentalities – and biopolitics are (or are not) understood as part of this process. thus far much of the emphasis has been on competing modernities among the hegemonic euromodernity and indigenous and afro-modernities. less has been done to understand how notions of life and intimacy comparatively figure into these competing accounts, and how this shapes current political processes. rather, these issues – which scholars such as arturo escobar (1995) have noted are central to modern, colonial, developmentalist governmentalities – continue to be sidelined and/or compartmentalized. while of course there are exceptions, debates on life or intimacy pertaining to indigeneity follow one trajectory (e.g., an emphasis on sustainability and overcoming the nature/culture dualism); debates on these same issues as they pertain to sexuality or gender typically follow another trajectory (e.g., an emphasis on citizen rights or the right to bodily integrity and autonomy). and generally speaking, debates on modernity/coloniality, capitalism and states invoke a kind of heteronormativity that is left unexamined by most analysts, despite the fact that by now many scholars and activists have pointed out the central significance of heterosexuality as a social institution in shaping modern/colonial economies and social life (see lugones 2010 for a discussion of this topic). some refer to “men” and “women,” including in discussions of gender complementarity vs. gender (in)equality, without questioning the construction of these categories themselves (beyond the obvious dualism). moreover there is no doubt that narratives of reproduction, gender, heteronormativity, sexuality, intimacy, kinship, life, death, etc. continue to be central to both right-wing and leftist forms of governance, to both neoliberal and “post-neoliberal” forms of production, and to the alternative modernities being sought by indigenous and afro-latin american social movements. categories of “the family,” “gender,” “sexuality” are no more or less “modern” than categories of “race” or “ethnicity.” yet scholars tend to under-theorize the former categories and write them off as “simply modern,” as solely “reformist,” or as a “side issue” and therefore uninteresting for a discussion of alternative modernities or “another world.” however some of the most interesting examples of post-liberal, post-capitalist and anti-neoliberal practices have come out of “modern/colonial” social movements such as the lesbian, gay, bisexual, transgender and queer movement in both ecuador and bolivia – movements that are mostly ignored by scholars of global justice studies and latin american cultural studies. these movements, while perhaps small in comparison to indigenous movements when seen through the eurocentric lens of visibility/invisibility (on this topic, see horn 2010), are deeply significant for understanding how both capital and states structure and govern people’s intimate lives, including how they think, feel, express love, desire, seek forms of attachment, understand themselves and their “communities.” capital defines how love itself is or is not valued, as well as constructed (wesling 2012). likewise, state practices institutionalize modern/colonial notions of intimacy, kinship, sexual practice, etc., thus attributing value to some intimate arrangements while rendering others invisible, undeserving or deviant – a phenomenon institutionalized as well through arenas of global governance, most notably the development industry (lind 2010b). colonial/modern states have long governed reproduction, including through miscegenation laws banning interracial marriage, prostitution laws, laws criminalizing sodomy and/or homosexuality, and laws concerning biological reproduction itself (e.g., abortion, birth control). in many cases new left governments have opposed reproductive rights and same-sex marriage – two current hot button issues – converging more with right-wing ideologies than with the various social movements that supported them, including the feminist and lgbti movements (lind in press; viterna in press). why, for example, is there no discussion of how “the family” is being disputed in various kinds of modernities? how does this play out in indigenous contexts, as former bolivian director of cultural patrimony, david arequipa, also a founding member of the well-known la paz-based political drag community, familia galan, set out to do as part of morales’ mas administration? and likewise, how does this play out within largely mestizo/a and/or urban contexts, such that we see fissures in identity politics that also deeply challenge the colonial architecture of latin american states? i have found that leftist activists and academics often will say, “oh, you’re talking about biopolitics,” without theorizing how biopolitics itself, including the governance of intimacy, is wrapped up in their own theories of “another world.” indeed, this kind of epistemological and political disjuncture seems to be at the heart of what breny mendoza refers to when she speaks of the feminists in resistance coalition’s own quandary about whether to continue working with the male-dominated left in honduras. while this type of quandary is by no means new, it is fascinating to see the disjuncture in intellectual thought about the governance of intimacy and biopolitics as it shapes all kinds of modernities/colonialities, structures or “geometries” of power (as venezuelan hugo chávez calls its, drawing from doreen massey’s work – see escobar 2010), and epistemic communities and forms of knowledge. from a feminist perspective, to truly do this would require intersectional thinking, and the ability to think across and from the perspectives of various epistemic, cultural, social, economic and political “communities” (richards in press; lugones 2010). an example from ecuador illustrates this point. when the constituent assembly began meeting in 2007 to redraft the constitution, lgbt activists played various roles in negotiating the language of the new constitution. in particular, two strands stood out: a more mainstream liberal strand, led mostly by gay men, that focused on integrating gays and lesbians (as that was their emphasis) into the new constitution, based in part on a liberal notion of affirmative action. the second strand, comprised primarily of trans and lesbian activists, utilized an intersectional approach to redefine the family in the constitution. ultimately their language was included, stating that “the family” is no longer defined based solely on kinship or sanguine relations but rather on an “alternative logic” that includes non-blood/kinship based households and intimate arrangements. ironically, while the right successfully campaigned for marriage to be defined between “a man and a woman” in the 2008 constitution, the self-defined transfeminista political sector mentioned above helped redefine the family in such a way that all non-normative families, including for example transnational migrant households, extended families, trans communities and same-sex households, can now potentially access state benefits laid out in correa’s redistribution plan. indeed, this is what legal activists are now working on: establishing the mechanisms by which so-called familias alternativas can access state resources. this strategy to redefine the family rather than seek integration of a new identity category (e.g., gay, lesbian, transgendered) into existing institutions such as marriage is indeed a decolonial strategy. the indigenous movement had long worked (somewhat indirectly) toward expanding/transforming the institution of marriage and state practices concerning parental rights as part of a logic of communal rights; this recent constitutional change is the starting point for an entirely new conversation about not only family but nation, well-being, sustainability, and the organization of social life. the out-migration of approximately 1.5 million ecuadorians since 2000, primarily to spain and italy, and the subsequent growth of transnational households and kinship networks, played an important background role in this discussion as well – again marking the intersectional approach taken here, which occurred as migrants’ rights and queer politics converged, in this case (also see herrera 2011). this, the third and final disjuncture i address here, is an example of how one social movement – in this case, the loosely-defined network of lgbti organizations, a political community shunned by most political sectors, both right and left, indigenous and mestizo, in ecuador until the late 1990s – implemented a combination of decolonial and liberal strategies for their emancipation and decolonization. often stereotyped as “entirely western” and “never indigenous” (both incorrectly), this movement contributed in its own way toward the decolonial turn that so many are seeking. it is this hope that people hold in the correa administration, and likewise in the morales and other administrations that have sought to restructure their states, constitutions, markets and social life and move away from a global neoliberal hegemony. while it is no longer easy to classify “left” vs. “right” (and perhaps never was, although i think these political trajectories converge now more than before), i’d argue that (de)colonization is or should be at the center of all social justice agendas – the kind of decolonization that frees all people rendered inferior, deviant or invisible, not just some of them. references escobar, arturo. 2010. latin america at a crossroads: alternative modernizations, post-liberalism, or post-development? cultural studies 24(1): 1-65. escobar, arturo. 1995. encountering development: the making and unmaking of the third world, princeton university press. herrera, gioconda. 2011. nuevas normativas, viejos dilemas: reflexiones a partir de la experiencia ecuatoriana, todavía 26 (november): 9-11. horn, maja. 2010. queer dominican moves: in the interstices of colonial legacies and global impulses, pp. 169-181 in amy lind, ed. development, sexual rights and global governance, routledge. lind, amy. 2010a. querying globalization: sexual subjectivities, development, and the governance of intimacy, pp. 48-65 in marianne marchand and anne sisson runyan, eds. gender and global restructuring: sightings, sites, resistances, routledge (second edition). lind, amy, ed. 2010b. development, sexual rights and global governance, routledge. lind, amy. in press. contradictions that endure: women’s rights, family norms, and rafael correa’s citizen revolution in ecuador, politics & gender, critical perspectives section. lugones, maria. 2010. toward a decolonial feminism, hypatia 25(4): 742-759. richards, patricia. in press. the contradictions of inclusion: mapuche women and michelle bachelet, politics & gender, critical perspectives section. viterna, jocelyn. in press. the left and ‘life’: the politics of abortion in el salvador, politics & gender, critical perspectives section. wesling, meg. 2012. queer value, glq: a journal of lesbian and gay studies 18(1): 107-125. _________________________________________________________________________________________________ 2 _________________________________________________________________________________________________ 1 kellie turtle and fiona bloomer the religious response __________________________________________________________________________________________ feminists@law vol 11, no 2 (2022) __________________________________________________________________________________ roe v. wade: the religious response kellie turtle and fiona bloomer[footnoteref:1] [1: kellie turtle, phd researcher, ulster university. dr fiona bloomer, senior lecturer in social policy, school of applied social and policy sciences, ulster university email: fk.bloomer@ulster.ac.uk .] the us supreme court’s overturning of roe v wade has been framed as a victory for religion over secular liberalism (dias, 2022). under the trump administration the combined social and political might of america’s catholic and evangelical hierarchies grew considerably, finding footholds across us society on a scale that has not been witnessed in decades. observing this, scholars and abortion rights advocates, had been warning for some time that roe v wade was vulnerable (ziegler, 2020). in societies where christianity dominates, an adherence to beliefs derived from the christian faith is often cited as the underpinning motivation for opposing abortion (lowe & page, 2022) with religiosity correlating positively with restrictive views on abortion in individuals and restrictive law and policy at a societal level (bloomer et al, 2018). the intertwining of religion and politics is exemplified in the use of biblical rhetoric from those opposing liberalisation, within political discourse as observed in northern ireland’s legislative assembly (pierson and bloomer, 2018). however, while religious opposition to abortion currently holds the most political power, it is not the position most representative of christian believers in the us or elsewhere. large scale survey data demonstrates support for legal abortion access across all faiths and denominations (apart from white evangelicals) particularly when asked to consider specific circumstances in which an abortion might be requested (lewis, 2017; pew research center, 2022). perhaps the most important evidence of incongruence between the dominant christian positions on abortion and the lived experience of the faithful is in the data gathered on abortion seekers. the guttmacher institute report that 1 in 4 women in the us have abortions during their lifetimes and that 64% of people accessing abortion services express a religious affiliation (jones, 2020). despite most faiths containing some prohibitions on abortion, being religious does not appear to have a significant impact on abortion decision-making, except for white evangelical women who are under-represented in this cohort. to understand the reality of the religious response to abortion beyond the dominant discourse, it is important to consider the recent history of religious engagement with abortion in the us. until the second half of the 20th century, most christian denominations were ambivalent to the question of abortion, with many holding official positions that respected the complexity of the issue despite expressing moral misgivings. it was largely seen as a private matter, one which was only really of political concern to catholics. rev tom davis recounts the divergence between the catholic and protestant traditions in the early 20th century as margaret sanger built a strong network of clergy support for access to contraception, using the plight of poor women in poor health to appeal to their pastoral responsibility (davis, 2005). in the 1960s, many state chapters of planned parenthood had clergy representatives on their boards. in 1967 a group of protestant and jewish clergy launched a national abortion support network and referral system called the clergy consultation service on abortion (ccs). at its height it encompassed around 1400 active members and helped tens of thousands of women access abortion care from safe, if illegal providers. one of its founding members, baptist minister howard moody, opened one of the first legal abortion clinics in the country when new york state legalised abortion in 1970, bringing abortion out of hospital settings into accessible community spaces and driving down the cost of the procedure (dunlap, 2016). following roe v. wade, those involved with the ccs evolved into a lobbying and advocacy organisation, the religious coalition for abortion rights (rcar), and set about presenting religious opposition to the slew of legislative attempts to roll back on abortion rights following the historic decision by the supreme court. using the establishment clause of the us constitution, they successfully argued that any law banning abortion would be tantamount to establishing the catholic religious doctrine on fetal personhood in statute, by demonstrating that there are a range of interpretations on the beginning of life across different faiths and denominations (mills, 1991). however, by the mid-1970s evangelical opposition to abortion began to consolidate. this rapid shift in the positioning of abortion in evangelical churches has been well documented by cultural and political commentators and historians and can be attributed largely to the political opportunism of the republican party who resourced evangelical leaders to make abortion a vote winning issue (balmer, 2014; ronson, 2021). in parallel, rcar continued to work in practical ways for greater access to abortion, drawing attention to ‘rogue’ clinics that aimed to prevent women from accessing abortion and producing tools for use by faith leaders who wished to facilitate choice affirming discourse in their communities and congregations. they changed their name to the religious coalition for reproductive choice in 1993 and still present a visible alternative to religious opposition to abortion. since then, a number of other faith-based organisations have taken up similar work. faith aloud is a network of clergy who provide all-options pregnancy counselling and listening support to people experiencing spiritual conflict over an abortion decision. the religious institute developed a large suite of interfaith resources to support pro-choice advocacy in religious settings, arguing that to deny abortion is immoral. a group of black religious leaders and scholars, interfaith voices for reproductive justice, work with academic institutions, particularly religious seminaries, to develop theological scholarship and praxis based on the principles of reproductive justice. the national council of jewish women’s ‘rabbis for repro’ campaign has remobilised support for abortion rights in the us jewish community in recent years and the long-standing group catholics for choice continues to represent the majority view among us catholics that abortion should be legally available. although these examples are heartening, we must ask, what do these efforts mean in a post-roe america, in the context of a broader shift towards right-wing political ideologies and conservative discourse on issues of gender, sexuality and reproductive freedom? these pro-choice religious perspectives, although well-established in their own sphere of influence, have never been afforded enough political or media attention to significantly impact the wider public discourse. additionally, the rhetorical shift of white evangelicals towards what has been described as ‘christian nationalism’, attaches a more explicitly religious dynamic to the agenda of some right-wing conservatives wielding political power. these feel like dangerous developments that appear to undermine constitutional principles like religious freedom and can attract significant grassroots support, particularly through social media. however, when the legal right to abortion was presented for public vote in kansas in august 2022 as a proposal to ban abortion in this traditionally republican state, the ban was decisively rejected by the electorate (doan, 2022). as well as exposing a gap between lawmakers and ordinary people, the aggressive roll back of reproductive rights under a religious banner has prompted more visible advocacy from within a religious framing, including faith leaders in states most impacted by abortion bans providing practical support to increase access to services, reminiscent of those clergy who did the same over 50 years ago (vlamis, 2022). president biden’s identity as a ‘pro-choice catholic’ has been scrutinised, providing a platform for catholics for choice to reiterate both the evidence base of catholic support for legal access to abortion and the theological basis in catholic social justice teaching (olander and cadelago, 2022). most significant of all, the reproductive justice movement led by black feminist organisers has come to the fore, providing a national network of both practical support and political activism that has connected abortion holistically to other movements like those fighting for a living wage, against voter suppression or challenging state violence against black communities (luna, 2020). in this arena, faith leaders have always played an important role. finally, the local resonance of these religious dynamics cannot be ignored. whilst the influence of the catholic church on abortion attitudes across the island of ireland appears to be weakening, here in northern ireland, the evangelical anti-abortion movement is directly influenced by events in the us. in april 2022, pastor rusty thomas of the extremist group operation save america addressed an anti-protocol rally in lurgan, sharing a stage with leader of the dup jeffrey donaldson. thomas was also hosted at parliament buildings by tuv politician jim allister and preached outside craigavon area hospital at a protest organised by local anti-abortion activists.[footnoteref:2] aside from these fringe groups, mainstream protestant churches also oppose the new legal framework for abortion access, with the presbyterian church particularly vocal in their engagement in the public arena.[footnoteref:3] [2: https://www.youtube.com/watch?v=exn3ny71qc0&ab_channel=abolishabortionni ] [3: for example, https://www.presbyterianireland.org/news/november-2021/abortion-services-(safe-access-zones)-bill.aspx ] however, whilst the fall of roe v wade serves to motivate some sections of the religious communities here, northern ireland has also witnessed the growing visibility of alternative abortion narratives from within a religious framework. research carried out with people of faith who accept abortion is a part of life for many women, demonstrated diverse and nuanced attitudes with the majority of participants indicating that their personal views on abortion do not match the official position of their denomination or faith leaders (bloomer and macnamara, forthcoming). following a facilitated engagement to discuss the findings of this research, a group of faith leaders established a network called faith voices for reproductive justice which aims to create space for alternative conversations on abortion in faith spaces and address abortion stigma (turtle, forthcoming). this group has tentatively begun to develop new social, ethical and theological language around abortion in northern ireland and insert that into the public discourse through events, conferences and engaging with politicians and the media. just as anti-abortionists take inspiration from their us counterparts, the holistic work of faith-based reproductive health, rights and justice advocates in the us has inspired and influenced this small group in northern ireland. references: balmer, r. (2014) the real origins of the religious right, politico, available at https://www.politico.com/magazine/story/2014/05/religious-right-real-origins-107133/ [accessed 4th june 2022] bloomer f, pierson c. estrada, sc (2018) reimagining global abortion politics, policy press, bristol.  davis, t. (2005) sacred work: planned parenthood and its clergy alliances. rutgers university press. dias, e. (2022) for conservative christians, the end of roe was a spiritual victory, new york times, 1 july, available at https://www.nytimes.com/2022/06/25/us/conservative-christians-roe-wade-abortion.html [accessed 23 september 2022] doan, a.e. (2022) kansas’ vote to maintain abortion access shows the state is less red than many think. lse blog available at https://blogs.lse.ac.uk/usappblog/2022/09/08/kansas-vote-to-maintain-abortion-access-shows-the-state-is-less-red-than-many-think/ [accessed 23 september 2022] dunlap, b. (2016) how clergy set the standard for abortion care, the atlantic, available at https://www.theatlantic.com/politics/archive/2016/05/how-the-clergy-innovated-abortion-services/484517/ [accessed 4th june 2022] jones, r. (2020) people of all religions use birth control and have abortions, available at https://www.guttmacher.org/article/2020/10/people-all-religions-use-birth-control-and-have-abortions [accessed 23 september 2022] lewis, a. r. (2017) the rights turn in conservative christian politics: how abortion transformed the culture wars. cambridge university press. lowe, p., and page, s. j. (2022) understanding anti-abortion activism as lived religion. in anti-abortion activism in the uk. emerald publishing limited. luna, z. (2020) reproductive rights as human rights: women of color and the fight for reproductive justice. new york university press macnamara, n. and bloomer, f. (forthcoming, 2023) marking the absence of an embodied theology: an analysis of how people of faith talk about abortion in northern ireland, in f bloomer and turtle. k (editors) reimagining faith and abortion. mills, j. (1991) abortion and religious freedom: the religious coalition for abortion rights (rcar) and the pro-choice movement, 1973-1989. journal of church & state, 33, p.569. olander, o. and cadelago, c. (2022) biden leans into abortion rights in speech to democratic activists, politico, 8th september. available at: https://www.politico.com/news/2022/09/08/biden-leans-into-abortion-rights-00055819 [accessed: 23 september 2022]. pew research center (2022) public opinion on abortion: views on abortion 1995-2022, available from https://www.pewresearch.org/religion/fact-sheet/public-opinion-on-abortion/ [accessed 27th sept 2022] pierson, c., & bloomer, f. k. (2018) anti-abortion myths in political discourse. in mcquarrie, c., bloomer, f. k., pierson, c. & stettner, s. crossing troubled waters: abortion in ireland, northern ireland, and prince edward island (pp. 184-2013). ronson, j. (2021) things fell apart: 1000 dolls, bbc radio 4, available from https://www.bbc.co.uk/programmes/m0011cpq [accessed 22nd sept 2022] turtle, k. (forthcoming, 2023) engaging with faith leaders on abortionan activist intervention from theory into practice, in bloomer. f and turtle. k (editors) reimagining faith and abortion. vlamis, k. (2022) a texas minister helps fly dozens of women to new mexico every month to get abortions. he's one of many religious leaders coordinating abortion care with roe v. wade overturned., business insider, available from https://www.businessinsider.com/network-religious-leaders-abortions-roe-v-wade-clergy-consultation-service-2022-5?r=us&ir=t [accessed 27th sept 2022] ziegler, m. (2020) abortion and the law in america: roe v. wade to the present. cambridge university press. __________________________________________________________________________________ 10 __________________________________________________________________________________ 11 emma milne foetal protection laws __________________________________________________________________________________________ feminists@law vol 11, no 2 (2022) __________________________________________________________________________________ foetal protection laws: paving the way for the criminalisation of abortion emma milne[footnoteref:1] [1: dr emma milne, associate professor in criminal law and criminal justice, durham university. email: emma.milne@durham.ac.uk.] the overturn of roe v wade is a tragedy for women’s rights and ability to control their own bodies. however, it is a tragedy that was foreseen and predicted by feminist scholars long ago, in part, due to the creation and then expansion of foetal protection laws. ‘protecting’ the foetus through the criminal law foetal protection laws provide the foetus with legal rights and protection under the criminal law. the first state in the usa to introduce criminal protection for the foetus was california. in 1970, following the attack of teresa keeler, while she was pregnant, by her ex-husband, resulting in her baby being stillborn, the state legislature changed the penal code to include a foetus as a possible victim of unlawful killing. prior to this change to homicide, only people who have been born alive could be victims of crimes, so excluding a foetus who dies before being born. today, at least 38 states have foetal protection laws, with at least 29 states applying their laws to the earliest stages of pregnancy. across us states, foetuses are now included in homicide laws, are protected through specific ‘feticide’ laws, through child protection laws, including child neglect, and through other offences such ‘chemical endangerment of a child’ – exposing a ‘child’ to a controlled substance, including prescription medication. the road to hell is paved with good intentions protecting a foetus may seem like a good idea, particularly in situations such as that faced by teresa keeler. many foetal protection laws across the us were enacted to protect pregnant women and their unborn babies from attack by third parties, often abusive male partners, or ex-partners. however, the consequences of considering foetuses as victim under the criminal law have been devastating for women. women across the us have faced imprisonment and criminal investigation because they are pregnant. for example, christine taylor was arrested after she fell down the stairs while pregnant, as the hospital were concerned she had attempted to ‘kill’ her foetus. marshae jones was charged with manslaughter after she was shot in the abdomen by another woman, resulting in her foetus dying. melissa ann rowland was charged with murder after one of her twins was stillborn following her refusal to undergo a caesarean section. bei bei shuai was initially prosecuted for murder, and then convicted of a lesser crime, after her attempt to die by suicide failed, but did result in the death of her foetus. tammy loertscher was imprisoned after she informed medical professionals providing her prenatal care that she had previously used drugs. the national advocates for pregnant women estimate that at least 1,700 women have been criminalised since 1973 due to being pregnant; they believe that this number will increase now roe v wade has been overturned. women who are most likely to face criminalisation are incredibly vulnerable, living in poverty and hardship. women from minoritised ethnic communities are also far more likely to be criminalised than white women; thus these laws represent multiple levels of discrimination. the irony is that all evidence suggests that foetal protection laws actually hurt foetuses, rather than providing great protection. pregnant women who fear they will be reported to the police avoid accessing medical care. lack of prenatal care is a leading factor in poor pregnancy outcomes. there is also evidence that women have sought legal abortions to escape prosecution under foetal protection laws. we can also see a direct line between the creation of foetal homicide laws and the overturning of roe v wade. feminists warned that recognising the foetus as a legal ‘person’ through foetal protection laws opened the door to the end of abortion rights: presenting the foetus as an autonomous entity with rights equivalent to that of the pregnant woman and so adverse to her. furthermore, if it is deemed a third party commits a crime by harming or killing a foetus, it is easier to argue that a woman ‘murders’ a foetus if she has an abortion. is england & wales next? in contrast to the us, in england and wales a foetus is not considered a legal person and so does not have the same level of protection under the criminal law. however, in england and wales women can and do face criminal prosecution for self-abortions. the criminal offence of procuring a miscarriage criminalises abortion at any stage of gestation. abortion is only legal if it is conducted in line with the abortion act 1967. however, the abortion act only provides a legal defence to doctors who adhere to the requirements of the legislation. women who self-abort have no legal defence and are always committing a crime, regardless of the stage of gestational development of her pregnancy. therefore, a woman who orders abortion pills illegally via the internet, or who takes abortion medication she has obtained legally in ways other than as directed (for example, she takes the medication a month after it has been proscribed) may face life imprisonment, the maximum sentence for the offence. women have been imprisoned for illegally ending their pregnancies, and two further women are currently facing prosecution. the archaic criminal law that makes abortion illegal in england and wales needs to be repealed to give women the right to control their own bodies. however, in england and wales the threat to women’s rights goes beyond the continued criminalisation of abortion. my research illustrates there is evidence that offences such as procuring a miscarriage are being used as proxies for foetal homicide laws. officially a foetus has limited protection under the criminal law, in reality, pregnant women are being criminalised using archaic offences for perceived ‘poor’ mothering. such use of the criminal law challenges not only women’s rights while pregnant, but also the legality of abortion, as illustrated by developments of law across us states. if we continue on this path in england and wales, then it is a matter of when, not if, we lose access to legal abortion. roe v wade needs to be seen as a warning to the world: underestimate the impact of giving the foetus legal protection through the criminal law at the peril of women’s rights. __________________________________________________________________________________ 10 __________________________________________________________________________________ 11 dinesh wadiwel critical disability studies and the state __________________________________________________________________________________ feminists@law vol 12, no 1 (2023) __________________________________________________________________________________ critical disability studies and the state dinesh wadiwel[footnoteref:1]* [1: * the university of sydney, australia dinesh.wadiwel@sydney.edu.au ] abstract liat ben-moshe’s decarcerating disability: deinstitutionalization and prison abolition, and linda steele’s disability, criminal justice and law: reconsidering court diversion offer distinct critical perspectives on the law and by extension, the state. this essay offers some reflections on the implications for future research in critical disability studies on the state and its relation to disability. here it is argued that there is scope for a widened analysis of, firstly, what exactly the state is from the perspective of disability; secondly, the distinct role of the state in participating in the construction of disability as a form of social oppression; and finally, the tactical problem posed by the state, as both agent of violence against people with disability and a potential vehicle for structural change. just over 30 years ago catharine a. mackinnon put forward the proposition that “feminism has no theory of the state” (1989: 157). in this context mackinnon posed a problem at the level of praxis, relating to the strategic relationship between feminism and the law: feminism has not confronted, on its own terms, the relation between the state and society within a theory of social determination specific to sex. as a result, it lacks a jurisprudence, that is, a theory of the substance of law, its relation to society, and the relationship between the two. such a theory would comprehend how law works as a form of state power in a social context in which power is gendered. it would answer the questions: what is state power? where, socially, does it come from? how do women encounter it? what is the law for women? how does law work to legitimate the state, male power, itself? can law do anything for women? can it do anything about women’s status? does how the law is used matter? (mackinnon 1989: 159) there is of course much we could say about mackinnon’s perspective in this classic text. we could certainly ask which feminism mackinnon seeks to represent, and whether all feminist traditions lacked a theory of the state. for example, work in the black feminist tradition, such as angela davis’ 1981 text women, race and class, do indeed advance distinct perspectives on the state, highlighting the non-neutrality of the state, including the place of “racism in the judicial system” and “the government’s posture of studied neglect toward black people and other people of color” (davis, 1981: 201). nevertheless, despite this limitation, mackinnon’s challenge remains broadly valuable for thinking about social movements and their relation to the state. the text points to the pressing need for movements to theorise the political terrain as part of their praxis; and in the case of the state, both analyse its complicity in violence and oppression, and simultaneously strategise in relation to the opportunities and limits presented by the state as an agent of change. reading both liat ben-moshe’s decarcerating disability, and linda steele’s disability, criminal justice and law, i found myself remembering the questions asked within mackinnon’s text. to an extent, my own view would be that critical disability studies has been in need of more work that critically interrogates the relationship between the state and people with disability: to understand how the state shapes the political terrain of disability, and simultaneously determines in what way (if at all) the state has a role in addressing injustice experienced by people with disability. both ben-moshe and steele’s impressive new texts help to address this need for more refined analysis. ben-moshe’s book takes carcerality as a focus, highlighting not only why the history of disability institutionalisation and de-institutionalisation should be of interest to prison abolition movements; but further arguing that radical demands made by people with disability to end institutionalisation are also examples of decarceration movements. the involvement of the state in the violence of incarceration – in a range of spheres – creates tactical questions for disability movements. in this context, ben-moshe explores the limitations of the legal avenues for disability movements, arguing that “litigation and rights discourse draw on the state in fixing social ills of its own creation” (ben-moshe, 2020: 7.41). these concerns overtly shape ben-moshe’s suggested political approach, which downplays piecemeal reform in favour of abolition as a political rationality and tactic (see ben-moshe, 2020: 3.1-24). steele explores court diversion as a modality of state violence used against people with disability. as steele highlights, diversion is often understood as a legal pathway which ‘protects’ people with disability from forms of carceral violence in the criminal justice system. however, diversion opens people with disability to alternative forms of violence; in this sense, for steele, diversion must be understood as a strategy of legal violence which redirects people with disability towards “coercive intervention through disability and mental health service” (steele, 2020:1). like ben-moshe’s text, steele’s case study of court diversion reveals a number of different dimensions of state violence which are of importance to critical disability studies. firstly, relevant to contexts such as australia, canada and the united states, steele observes that the state is profoundly shaped by imperialism and settler colonialism, which frames both the violence that is experienced by people with disability and the tactics which are possible for disability movements (steele, 2020: 16). secondly, the state is intensely involved in forms of carcerality as a primary form of legal violence. in unison with ben-moshe, steele’s analysis of the carceral moves beyond the sphere of the formal criminal justice system, to include, for example, institutional forms of disability support. thirdly, the state seeks to legitimise its own authority. steele’s case study of court diversion highlights that in discursively framing the capacity for the law to appear ‘compassionate’ in protecting people from its own violence in the criminal justice system, the state effectively legitimates its own force, and simultaneously denies its own role as an agent of violence (steele 2020: 18; see also 109). ben-moshe and steele’s texts are to an extent complementary in their analyses of law’s violence and its relationship to people with disability, offering case studies which, when placed together, provide the reader a wide and comprehensive picture. there is a strong united theme in both books: both texts highlight the non-neutrality of the state with respect to people with disability. as a result, both ben-moshe and steele are suspicious of the capacity of the law to achieve positive change, and both texts highlight the way in which even well intentioned “legal actors might be complicit in disability injustice” (steele 2020, 14). ben-moshe, for example, draws critical attention to the way some feminist demands for policing and criminalisation in response to violence have led to “the build up of the prison nation” (ben-moshe 2020, 3.5; see also richie 2012, 3). thus, the abolition approach advocated by ben-moshe calls for a “lens rooted in black radical tradition that critiques the state as violent and not the arena to seek remediation to injustice” (ben-moshe 2020, 3.6). steele similarly expresses repeated concerns about the capacity of domestic and international law to provide justice to people with disability; for example, with reference to the often lauded united nations convention on the rights of persons with disabilities (crpd), steele suggests the need for a “careful and strategic” approach, warning that “an unreflective, instrumental and technical use of the crpd risks further legitimating and embedding carceral control and debilitation of criminalised disabled people” (steele 2020: 214). both ben-moshe and steele’s important new books have raised some further questions for me about the relationship between the state and people with disability. these are both questions of analysis and of praxis. firstly, from the standpoint of disability, what is the state? ben-moshe and steele lean strongly on a foucauldian analysis of power, carcerality and the law. but perhaps there are limits to how far such an analysis might be able to interrogate state power. foucault famously distanced himself from a theory of power that revolved around the politics of the state (foucault 1980: 121) and sometimes treated it as a somewhat ‘episodic’ phenomena with the terrain of power: “the state is only an episode in government, and it is not government that is an instrument of the state” (foucault 2007: 248; see also tremain 2006: 3-4 and 10-11). in this respect, foucault’s analysis of the state is somewhat – for me at least – under-developed. and this analysis misses that the state, from the standpoint of disability, has a potentially radically different meaning. what does critical disability studies have to say about the meaning of the state, the law and government? for example, how was the evolution of the hobbesian state, and the monopoly of violence that is associated with it (see hobbes 1994), interconnected with the right of the state to use systematic violence against people with disability to securitise, normalise and ‘immunise’, including through institutional torture and ill-treatment (see wadiwel 2017; puar 2017)? further, how was the evolution of the state also connected with contemporary conceptions of the ‘rule the law’, and rights to security and protection which are central to contemporary human rights claims made by disability movements? to what extent can we separate contemporary claims for equality and security from the understandings of state power which have evolved around its monopoly over violence? secondly, and related to the above, how is the genealogy of the state intertwined with the emergence of ‘impairment’ and ‘disability’ as categories? there are different trajectories to explore here. for example, relevant to colonial history of contemporary state power, nirmala erevelles argues that racial slavery depended upon the production of ‘black disabled bodies’ as commodities for exchange (erevelles 2014: 86). this ‘value production’ underpinned the development of global capitalism. mitchell and snyder track the internationalisation of eugenics, and the ways in which these logics infiltrated the governance of the state (mitchell and snyder 2003). deborah stone, in the disabled state, explores the way the administration of welfare systems gave rise to categories of disability, which in turn produced a social and political conception of impairment and disability (stone 1984). these different accounts offer histories on how the racial and bureaucratic state interacted with disability as a form of social oppression, and intersected with other forms of structural violence, such as race and sexuality. finally, there is the question of tactics. as above, both ben-moshe and steele express caution about the law and its capacity to be utilised by disability movements as an agent of change. however, there remains, at least in my view, some tricky issues to navigate at the level of strategy. one problem relates to how disability movements might respond to the problem of violence where the state is both cause and cure. in many contexts, in relation to both institutional and interpersonal violence, the state has completely abandoned any responsibility for protecting most people with disability and is often directly complicit with the exercise of force. this means that forms of violence – often state violence – are routinised and ‘naturalised’ in the lives of many people with disability. what should the response of disability movements to this problem be? how is it possible to democratise a right to freedom from violence, while at the same time avoid the problems raised by ben-moshe and steele of playing into a politics which simply authorises and extends the hobbesian state? can we do without the hobbesian state? what is its alternative? in a different register, i wonder broadly about the role of the state in protecting people with disability from the encroachment of capitalism into almost every aspect of social relations. traditional social policy approaches have used the state, and its ability to levy taxes and engage in fiscal expenditure, as a way to ameliorate at least part of the violence of the capitalist economic system through forms of ‘decommodification’ (esping-andersen 2012: 63-95). in many parts of the world, social policy interventions, such as income transfers and publicly funded social support, while certainly not beyond criticism, present as important opportunities to address the structural dimensions of ableism. to an extent, and unless radical disability movements are actively calling for full socialisation of the economy – an option i am not dismissing here – the tactical utilisation of state intervention in economies to create the conditions for social protection and support seems to remain an important strategy to address the structural dimensions of ableism. in all of the above, there is an ongoing tension. on one hand, today’s colonial capitalist state, and all its violence, has imposed itself into almost all social, political, and economic relations; as a result, for many people on the planet, including people with disability, everyday life is experienced through the lens of state violence and deprivation which forms part of the fabric of ableism as a structural relation. on the other hand, the state often appears as a ‘rational and realistic’ solution when social movements consider how to seek justice: the state, as ben-moshe and steele observe in their two books, often presents itself as the remedy, even if it is cause and source of injury. part of the challenge here is the pervasiveness of the state; our social relations have, it would seem at least, been captured by it. gayatri chakravorty spivak suggested a need for a “persistent critique of what one cannot not want” to describe the approach challenging institutional forms of power and discourse that we find ourselves surrounded by and which dominate our imaginations (danius, jonsson and spivak, 1993: 20). perhaps critical disability studies faces a similar dilemma in its theorisation of the state. how might it be possible to desire something other than what everyone says we cannot not want? references ben-moshe, liat. 2020. decarcerating disability: deinstitutionalization and prison abolition. minneapolis: university of minnesota press. danius, sara, stefan jonsson and gayatri chakravorty spivak. 1993. “an interview with gayatri chakravorty spivak.” boundary 2. 20(2): 24-50. erevelles, nirmala. 2014. “crippin’ jim crow: disability, dis-location, and the school-to-prison pipeline.” in disability incarcerated: imprisonment and disability in the united states and canada, edited by chris chapman, liat ben-moshe and allison c. carey, 81-99. new york: palgrave macmillan. esping-andersen, gøsta. 2012. the three worlds of welfare capitalism. cambridge: polity press. foucault, michel. 1980. “truth and power.” in power / knowledge: selected interviews and other writings 1972-1977, edited by colin gordon, 109-133. pantheon books, new york. foucault, michel. 2007. security, territory, population: lectures at the collège de france, 1977‐78. london: palgrave macmillan. hobbes, thomas. 1994. leviathan. london: everyman. mackinnon, catharine. 1989. toward a feminist theory of the state. cambridge, massachusetts: harvard university press. mitchell, david & sharon snyder. 2003. “the eugenic atlantic: race, disability, and the making of an international eugenic science, 1800–1945.” disability & society, 18(7): 843-864. puar, jasbir. 2017. the right to maim: debility, capacity, disability. durham: duke university press. richie, beth e. 2012. arrested justice black women, violence, and america’s prison nation. new york and london: new york university press. steele, linda. 2020. disability, criminal justice and the law: reconsidering court diversion. abingdon: routledge. stone, deborah. 1984. the disabled state. philadelphia: temple university press. tremain, shelley. 2006. “foucault, governmentality and critical disability theory: an introduction.” in foucault and the government of disability, edited by shelley tremain, 1-24. university of michigan: university of michigan press. wadiwel, dinesh. 2017. “disability and torture: exception, epistemology and 'black sites'.” continuum: a journal of media and cultural studies, 31(3): 388-399. __________________________________________________________________________________ 4 __________________________________________________________________________________ 3 pamela m. white no right to death with dignity __________________________________________________________________________________________ feminists@law vol 11, no 2 (2022) __________________________________________________________________________________ right to life means no right to death with dignity pamela m. white[footnoteref:1] [1: pamela m. white, llm, phd, senior lecturer in medical law, kent law school, university of kent. email: p.white-229@kent.ac.uk.] the seeds of the anti-abortion success realised by dobbs v jackson women’s health organization[footnoteref:2] were planted decades ago by earlier judgments designed to limit access to legal terminations[footnoteref:3] and by state legislatures inserting foetal personhood rights into laws and regulations not directly related to abortion. adoption by 36 us states of ‘pregnancy exclusion clauses’ in advance directives is one such example where a pregnant person’s agency and advance decision-making can be overruled to ensure the development of a gestating foetus.[footnoteref:4] [2: dobbs v. jackson women's health organization, no. 19-1392, 597 u.s. ___ (2022)] [3: use of state trigger laws. see guttmacher.org state legislation tracker. https://www.guttmacher.org/state-policy ] [4: es demartino, bp sperry & ck doyle “us state regulations of decisions for pregnant women without decisional capacity’ jama 2019 321(16) 1629-1631 at 1630. see flanagan at n6 for an update on figures.] the 1981 uniform determination of death act (udda) and adoption of state advance directive legislation[footnoteref:5] during in the mid-1980s, triggered a two-pronged campaign by the pro-life lobby to challenge legislation that might obstruct life-support treatments for braindead individuals, especially pregnant women.[footnoteref:6] one prong argues for a religious-based definition of death: cessation of pulmonary-cardiac function.[footnoteref:7] it challenges the legal neurological definition of death including administration of the apnoea test, considered by clinicians as the definitive assessment of brain-death.[footnoteref:8] the apnoea test has come under increased scrutiny in us,[footnoteref:9] canadian,[footnoteref:10] and uk[footnoteref:11] courts. opposition to the neurological determination of death not only frustrates organ donation, but also enables ongoing life-support until organ death occurs. without a definitive brain-death determination, administration of life-support cannot be defined as futile treatment and will therefore carry on until organ death occurs.[footnoteref:12] [5: 1985 uniform rights of the terminally ill act (urtia).] [6: shea flanagan, ‘decisions in the dark: why pregnancy exclusion statutes are unconstitutional and unethical’ northwestern university law review. 2020 114:969] [7: new jersey has legalised religious definitions of death. ] [8: ariane lewis, david greer. ‘medicolegal complications of apnoea testing for the determination of brain death. bioethical inquiry. 2018. 15. 417-428. ] [9: see: (israel stinson v children’s hospital los angeles [2016] bs164387; re guardianship of hailu [2015] 361 p.3d 5; mcmath v california [2015] no. 3:15-06042 n.d. cal.; re allen callaway [2016]; re mirranda grace lawson [2016]; brett and yvonne shively v wesley medical center and lindall smith [2006]; alex pierce v loma linda university medical center [2016]); brett and yvonne shively v wesley medical center [2006], court of appeals of the state of kansas); re allen callaway [2016] dg-16-08); re mirranda grace lawson [2016] cl16-2358; alex pierce, thirteen-years-old (in alex pierce v. loma linda university medical center [2016];durbin k. monroe co parents proposing “bobby’s law” in honor of son taken off life support. the blade. published 2019. accessed december 9,2019. https://www.toledoblade.com/local/suburbs/2019/12/02/bobbys-law-bobby-reyes-monroecounty-taken-off-life-support-university-ofmichigan/stories/20191202150] [10: morlani et al v haddari 2021 onsc 7288.] [11: re m (declaration of death of child) (ca) [2020] 4 wlr 52; barts health nhs trust v dance & ors [2022] ewhc 1435 (fam) at 75-76 and 99; barts health nhs trust v dance & ors [2022] [2022] ewfc 80, 2022 wl 02792515 at 2 and 17. ] [12: g yanke, my rady, j verheijde and j. mcgregor. ‘apnoea testing is medical treatment requiring informed consent’ the american journal of bioethics 2020 20(6) 22-24. ar joffe, ‘the apnoea test: requiring consent for a test that is a self-fulling prophecy, not fit for purpose and always confound?’ the american journal of bioethics 2022 2096) 42-44.] the second prong of the campaign encouraged state legislatures to include pregnancy exclusion clauses in advance directive legislation, thereby circumventing roe v wade.[footnoteref:13] by 2020, just 14 states permitted physicians to honour a pregnant woman’s advance medical directive. foetal ‘viability’ legally (not medically) set at 14 weeks gestational age[footnoteref:14] overrides an advance directive in 12 states, with another 5 states making life-support dependent on treatment benefits accruing to the foetus. in the remaining 19 states, maternal life-sustaining therapies must be provided regardless of foetal viability or existence of an advance directive. prior to dodds, over 70% of us states had legislated ‘right-to-life’ for the gestating foetus and mandated ongoing life-support for pregnant women in pvs, braindead, or persistent coma conditions until the baby can be safely delivered usually by caesarian section or dies in utero.[footnoteref:15] [13: e villarreal, pregnancy and living wills: a behavioral economic analysis, 2019 128 yale l.j. f. 1052.] [14: the notion of viability at 14 weeks gestation does not align with medical understandings of foetal viability commonly thought to be 22-28 weeks gestation and defined as when the the limit of viability is the gestational age at which a prematurely born fetus/infant has a 50% chance of long-term survival outside its mother's womb. see: breborowicz gh (january 2001). "limits of fetal viability and its enhancement". early pregnancy. 5 (1): 49–50.] [15: es demartino, bp sperry & ck doyle “us state regulations of decisions for pregnant women without decisional capacity’ jama 321(16) 1629-1631 at 1630.] legislative removal of a pregnant patient’s medical decision-making autonomy has not gone unchallenged. the 2013 muñoz case exposed a disturbing situation of a neurologically braindead pregnant texas resident being kept artificially ‘alive’ for two months against the wishes of her husband.[footnoteref:16] yet, the us in not alone in overruling family wishes of a peaceful passing for their pregnant braindead family member. natasha petrie, a pregnant irish resident was pronounced neurologically dead in december 2014.[footnoteref:17] concerns about the legal implications of ireland’s eighth amendment establishing equal rights for the ‘unborn child’ and the pregnant woman contributed to the decision to sustain natashia’s body on life-support for a month against her family’s wishes.[footnoteref:18] [16: muñoz v john peter smith hospital cause no 096270080-14. [2014] tarrant county district court, 96th judicial district, state of texas. ] [17: pp v health service executive [2014] iehc 622.] [18: c hurley, 'pp v health service executive' (2015) 18 trinity cl rev 205 at 209.] truog observes it is women who are being kept biologically alive contrary to their own or family members’ directives or even standard medical practice so to enable the delivery of a viable child.[footnoteref:19] a 2021 study of 35 cases worldwide reveals that most cadaveric pregnancies are sustained for about 7 weeks though 120 days is not unknown.[footnoteref:20] yet, survival is low for foetuses under 14 weeks and barely reaches 55% for those between 14 and 19 gestational weeks. higher survival rates have been reported for foetuses at 20-23 weeks of gestation (92%) with most born alive when maternal life-support is initiated at 24 gestational weeks and over. to date, little research has been undertaken to assess longer term health of these children.[footnoteref:21] [19: rd truog ‘defining death: lessons from the case of jahi mcmath’. pediatrics 2020; 146(s1): s75–s80 at s77.] [20: mg dodaro, a. seiderari, ir marina, v bergella and f bellussi. ‘brain death in pregnancy: a systematic review focusing on perinatal outcomes’. american journal of obstetrics and gynecology. 2021 245(2) 445-469.] [21: ibid n18. apgar scores for 24 week+ babies was in the normal range.] while some may conclude that cadaveric pregnancies are becoming technologically possible, healthy live births tend to be over-reported.[footnoteref:22] moreover, life-support cases involve considerable maternal medical intervention and constant foetal monitoring. the 2021 study revealed extensive serious multiple maternal complications including pneumonia, sepsis and urinary tract infections, circulatory instability, hypothalamic dysfunctions, thermal variability, and pituitary hormonal imbalances.[footnoteref:23] families, care staff, and clinicians find the significant deterioration of the maternal body disturbing, with reports of nurses experiencing not insignificant levels of emotional distress.[footnoteref:24] [22: ibid n18] [23: see tables 2 and 3 at n18.] [24: l staff, m nash, ‘brain death during pregnancy and prolonged corporeal support of the body: a critical discussion’ women and birth. 30 (2017) 354–360. l winborg, ‘sheila’s death created many’ nursing. 1993: 45-49.] when families contest state-ordered maternal life-support, success has been patchy. in 2019, the petrie family received an apology and a financial settlement from ireland for the lack of consent for their daughter’s medical treatment. the victory in muñoz was achieved on the court’s acceptance of mrs muñoz being declared legally dead and that foetal death had occurred in utero. in april 2021, four pregnant women[footnoteref:25] successfully contested idaho’s override of their advance directives (almerico et al. v. state of idaho et al)[footnoteref:26] though it rests on constitutional rights found in the first, fourteen and fifteen amendments and case law[footnoteref:27] subsequently challenged and struck down by dodds. [25: almerico et al. v. state of idaho et al case no.1:18-cl-00239 blw.] [26: case no.1:18-cl-00239 blw.] [27: planned parenthood of southeastern pa. v. casey (91-744), 505 u.s. 833 (1992); cruzan v. director, missouri department of health, (88-1503), 497 u.s. 261 (1990)] with the reversal of roe v wade,[footnoteref:28] the constitutionality of almerico et al. v. state of idaho et al. enabling pregnant women to make healthcare decisions stands in jeopardy. moreover, the ability of us states to dictate medical treatment now extends to all persons with a uterus, regardless of their pregnancy status. dodds is broadly drafted such that in many us states, women with autoimmune diseases or cancer risk being refused medications and treatments designed to address their illnesses as the prescribed drugs and chemotherapy might damage a developing foetus or result in a miscarriage.[footnoteref:29] [28: 410 us 113 (1973)] [29: m whyte, "viably fertile" patients are denied essential medicine because of roe v. wade’ la times 18.07.2022; https://www.msnbc.com/opinion/msnbc-opinion/post-roe-abortions-aren-t-only-healthcare-being-denied-women-n1296928 ] not only does dodds remove autonomous medical decision-making from over half of the us population, uterus-containing bodies are simultaneously transformed into non-autonomous pregnant and potentially pregnant beings. for pregnant us women, the prospect of cadaveric gestation has become a reality regardless of potential for foetal viability and irrespective of advance directives, family wishes, or surrogacy contracts that may have been completed. the implications of past legislative initiatives now affirmed by dodds will lead to significant challenges to the definition of death for women, girls, and persons with uteruses. foetuses have a ‘right-to-life’, but their gestating mother who has no corresponding ‘right-to-death’ or ‘end-of-life care with dignity’ is called upon to make the ultimate sacrifice. un-wanted cadaveric pregnancies will be a reality, not an exception. nations not recognising foetal legal personhood need to be mindful of attempts taken to weaken autonomous decision-making and of utilitarian arguments advocating for foetal preservation based on a limited number of successful maternal life-support studies. the fact that a braindead, pvs or comatose pregnant woman has no conscious awareness does not give clinicians, or anyone else, licence to perform unwanted medical procedures irrespective of supposed treatment benefits accruing to a foetus. to do so undermines the very foundation of ethical health care. __________________________________________________________________________________ 10 __________________________________________________________________________________ 11 mendoza response to lemaitre, lind and walsh _________________________________________________________________________________________________________ feminists@law vol 2, no 1 (2012) _________________________________________________________________________________________________________ response to julieta lemaitre, amy lind, and catherine walsh breny mendoza[footnoteref:1]* [1: * professor of gender & women’s studies, california state university, northridge, usa. breny.mendoza@csun.edu] i am grateful that julieta lemaitre brought to my mind the imagery of the origins of the state, a thought that had somewhat eluded my imagination when i wrote the piece on neoconstitutionalism in honduras, but which is of undeniable importance to the topic. i interpret lemaitre’s reference and the contrast she makes between civil war and ordinary life to be similar to the hobbesian distinction between the state of nature and the origin of the state form. i cannot help but think that her allusion to civil war as a moment when our passions, fears, evilness, loneliness, poverty, barbarism, ignorance, and savagery have a greater chance to take the best of us, must be related to what hobbes imagined took place before the state came to “free” us from our destructiveness. surely, to think that the law and the “peaceful” electoral process brings out the best in us because it reduces violence and the opportunity to be evil must fit squarely in a hobbesian conception of state and society. but it does not fit the historical record, unfortunately. imagine for a moment that we go back in time to identify the moment in which we participated in the original creation of the state. we would necessarily find that the inhabitants of the colony were not able to negotiate a truce with their predators to establish a state form that ended violence. the hobbesian myth of individuals and whole communities voluntarily giving up their power to exercise violence for a state of law that incarnates morality (and monopolizes violence) because it protects them from outside predators (and produces peace) does not tally with the colonial encounter. the colony remains at the margins of the law and is subjected to unspeakable violence, even after colonial occupation ends. the concept of the coloniality of power means the perpetual authorization of terror and the theft of the colony’s civility. this is why in re-founding the state certain social movements in honduras and other parts of south america like ecuador and bolivia demand a peace treaty with their predators, one that will restrain the violence that has been permanently directed at them. but what can be expected from such a truce anyway? is the state a simple agreed-upon suspension of hostilities by opposing forces that later are kept at bay by a law that produces peace and the good life? is the state form the necessary framework—el estado de derecho—that “individuals” (predators and victims alike because they are ultimately the same given the circumstances?) need to make the right choices, a framework that will allow reason, peace, security, wealth, splendor, society, good taste, the sciences and goodwill to dominate our lives, as i think lemaitre is telling us? what is to be made of the contradictory circumstances of the “transformative neo-constitutionalism” taking place in ecuador and bolivia, and the immediate violation of those constitutions in practice that passed it that distresses walsh and lind? should we be alarmed? putting aside the value of the process of constitution building (as a decolonial practice, poder constituyente), is there something that our analytical process is not capturing? for instance, what distinguishes the separate moments in which 1) the (re) foundation of the state occurs, 2) the writing of the new constitution is done, and 3) when the new constitution is practiced as the new rule of law? was there ever a renaissance of the state that was preceded by a moment in which the contenders (in this case, the “left” and the indigenous social movements) agreed not to do away with the (modern/colonial predator) state, but to keep its form, however, under a new due process (and logic) of law? phrased differently, was there a moment before the rebirth of the state could take place where the contenders could have agreed on doing away with the present state form that is predatory and murderous (“que se vayan todos”?), and created an entirely new form of self-government (sumac kawsay or buen vivir or the good life?), but decided instead to keep the old form (thinking it only needed a new law)? was there a moment lost in which things could have been totally different, or did the moment never happen? was the old state form, even for a moment, reversible?[footnoteref:2] was there ever a choice between, let’s say, “neo-anarchy” and “neo-constitutionalism” or “strategic constitutionalism,” if you will? was there really a moment in which the suffering of the poor and those starved of justice—indigenous or not—could become a “regenerated humanity” under a new constitution and the present state form? can the writing of a new constitution suspend our status as a colony? is there a decolonial turn of events at work today in ecuador and bolivia, one that hondurans could emulate? is there a specific order we should follow: undo the state first, then write a new constitution or write a constitution and then undo the state? [2: these questions and the core of my analysis are inspired by j.m. coetzee’s brilliant analysis of the origins of the state in his novel diary of a bad year (2008).] i take both from walsh and lind that currently the process in ecuador and bolivia is rather imperfect and incomplete, but worthwhile. neoconstitutionalism, says walsh, is just a strategy, a tool for change we must use with caution. as for now, the (modern/colonial predator) state can claim some mixed victories, as we witness with the breaking of the most important clauses of the new constitutions (i.e. the duel between the “rights of nature” and the ecuadorian mining law or evo morales’ attempt to build a highway through tipnis without consulting the indigenous communities living in the land). should we not suspect that when we choose “strategic constitutionalism,” (in a kind of spivak way as in “strategic essentialism”) we are preserving the (modern/colonial-predator) state form, and we are unintentionally playing into the hands of the “strategic legalism” that still rules the colony, since its inception? can the writing of a new constitution at the national level undo the status of colony that we maintain at the global level which does not grant us sovereign powers or juridical equality? because it seems obvious that the (modern/colonial-predator) state was not undone and re-founded as decolonial in ecuador or bolivia, we should take walsh’s assertion that the “turn to the left” does not imply a decolonial project. we should also give more thought to lind’s suggestive observation that “the “left” and “right” trajectories are converging now more than before. i think we might have a consensus in these matters with lind and walsh. where i still take issue is with lemaitre’s liberal assumption that the recourse to the law is by definition limiting the recourse to violence, broadening the “choices” of individuals, and bringing out the best of us. most interesting is that this is a position that contradicts her earlier insights on legal fetishism in which she attributes the law much less power (lemaitre, 2007). let me make my point by using the concept of “strategic legalism,” a term coined by peter maguire in his book law and war (2001). in this book, maguire makes a compelling case about how the united states of america’s state formation process relied on a view of the law that separated it from any moral or ethical consideration. from the foundation of the country on the basis of the genocide of native americans, to the enslavement of africans, and later the colonial wars against spain in cuba and the philippines, the gradual reduction of the convictions of the nazis in the nuremberg trials, jim crow laws, the vietnam war, the central american wars, and we can add the mass incarceration of african-americans and latinos and the war on terror today, the law of the us state (presented to us as the beacon of democracy) sees no link with the rules of morality. the logic of the law that has operated within the usa’s state formation process has been pragmatic: what can be justified legally doesn’t have to be justified morally. the law has been used as a political tool as any other; the law has served as a political tactic, a strategy, at every point in the history of the nation and its relations with other nations in the world. legalism at its best reflects what judith shklar, a prominent us political scientist, identifies as “an ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships that consist of duties and rights determined by rules” (cited in maguire, 2001, p. 52). at its worst, the law in the us has been stripped of any capability of producing political justice; ethical principles not only exist in tension with legal principles, they are rendered useless. interestingly, to the extent that the law functions for the necessities of the state and not for a moral community, the state does not need the consent of the people or, for that matter, the international community. it can make use of the judicial machinery to quell any controversial political problem that threatens the matters of state power. it can frame political matters as issues of symbolic justice in legal terms and betray them in a non-judicial manner, mitigating or reversing the original public sentences through clemency or paroles as it did with nazi criminals, or vice-versa, applying non-judicial jurisdiction to matters that need to be subjected to the courts, like wall street financial crimes during the current great recession. in the context of the war on terror, according to juan gabriel tokatlian (an argentinean professor of international relations), the us has moved on to an era of postlegality (2012). in contrast to south america, a region that allegedly now expands civil liberties for its citizens as with the new constitutions of ecuador and bolivia, the us state manipulates, breaks, or disregards internal and international law with little accountability from inside and excessive military deployment outside its borders. in the postlegal era, with recent laws such as the national defense authorization act, all us citizens, independently of their race, can become indefinite detainees and are killable with impunity just like colonial subjects before them. what tokatlian understands as postlegality today is very similar to the concept of strategic legalism that maguire uses to describe the history of law and war in the us. both describe a state form that puts the right of the state to kill and maintain economic power before the law and a state form that uses legal terms to enable the disregarding of the law, i.e. in the context of the war on terror today, torture is called “enhanced interrogation techniques,” the clandestine kidnapping of foreign nationals is called “extraordinary rendition,” and extrajudicial executions of us citizens and foreign nationals are justified in the framework of “hostilities” and “enemy combatants.” the only thing that sets postlegality apart from strategic legalism is that postlegality no longer makes a distinction between us citizenship and colonial subjecthood. this might be an interesting turn of events, but the point that should not escape us is that the law appears disconnected from any kind of moral consideration and is what has made the us state form viable. the point i am trying to make here with this apparent excursus on the us state form is one that achille mbembe has already made in his article necropolitics (2003). his concept of necropower helps me understand the particular situation of honduras in all of this. since i share with him the doubt that we can understand politics using the concept of reason that lemaitre seems to accept, or the belief in society’s capacity for self-creation through simple recourse to institutions inspired by specific social and imaginary significations (2003, p. 13), i prefer his view of necropolitics to describe the origins of the state and the current situation of honduras. instead of developing a reading of politics as the dialogue of reason that produces the good life, a form of politics that never applied to the colony, it is preferable to operate with a concept of politics that derives its meaning from the state’s right to kill: in other words, politics understood as the work of death (bringing out the worst in us?) and not of reason (bringing out the best of us?). this is admittedly not an uplifting definition of politics. it is however one that explains the role of race and racism, misogyny and femicide, heteronormativity and homophobia in the coloniality of power that serves not only as a classification system, but also as a system of distributing death and the conditions of possibility of the murderous function of the state. from this perspective, the hobbesian imaginary of the state emerging out of the necessity of putting an end to war and death in a community besieged by bandits appears in its inverse form: a community that surrenders its sovereign power to bandits that put in place the state form to abrogate to themselves the right to kill; to perpetuate war and/or a form of politics that is warlike because it is what sustains the bandits in power and makes their rule irreversible. of course, the archetype of this form of politics is the colony, the plantation system, the nazi regime, apartheid, palestine, the war on terror, haiti, honduras, but it now encompasses the entire planet. it is as mbembe says “the nomos of the political space in which we still live” (2003, p. 14). there are moments in history when the conflation of war and politics becomes transparent; where the formation of terror underlying the state is impossible to hide. this is the situation of postlegality in the us where it is perfectly legal to talk about the murder of foreign leaders on tv or for aspiring politicians to talk about the murder of the president with impunity, and, of course, honduras that since the coup two years ago has become “the murder capital of the world” with a murder rate four times that of mexico, and where most of the murders are committed by organized crime, the police, and the military (npr, 2012). since the coup, in honduras, congress has passed a law that will splinter the national territory into segments composed of “ciudades modelos” or model cities that will function with “new rules that will give more choices to people, and more choices to the leaders of the country.” this new spatial arrangement will be “more efficient and investment friendly” than the rest of the country and will only abide by its own rules. it will make of honduras a transshipment hub and logistic corridor to link the atlantic and the pacific oceans. it will end poverty and a system of bad rules (critt, 2011). another form of territorial fragmentation taking place in the country that began before the coup, but that now has fully consolidated is the division of the country into narco-regions. entire regions of the country are under the control of drug cartels (mexican, colombian, and honduran politicians, military, police), serving as the transshipment hub of 60% of the illicit drugs that are later consumed in the us (the us consumes 90% of the world’s illicit drugs) (aljazeera, 2012). to this dispersal and segmentation of the territory we should add the two new us military bases in honduras (la mosquitia and guanaja) which raises the number to three us military bases that the country harbors. the territory of honduras is 112,090 square kilometers, the size of louisiana. in this splintering of the landscape the re-foundation of the state in honduras is fully underway. the resistance front has become a political party, factions of the feminist movement have defected from the resistance front, and last night jose manuel zelaya, the deposed president in the 2009 coup, announced in a tv interview that he and his wife are in a list of candidates to be murdered before the next presidential elections (zelaya, 2012). references aljazeera. 2012. instability in honduras. podcast retrieved from http://stream.aljazeera.com/story/instability-honduras-0022030. last accessed 2/12/2012. coetzee, j. m. 2008. diary of a bad year, new york: viking. critt, jarvis. 2011. model cities in honduras. available at: http://crittjarvis.com/2011/07/crowdsourcing-ciudades-modelos-model-cities-in-honduras-2011/. last accessed 2/11/2012. lemaitre, julieta. 2007. “legal fetishism: law, violence, and social movements in colombia.” available at: http://www.law.yale.edu/documents/pdf/sela/julietalemaitre__english_.pdf. last accessed 2/12/2012. maguire, peter. 2001. law and war, new york: columbia university press. mbembe, achille. 2003. “necropolitics” in public culture 15 (1): 11-40. national public radio (npr). 2012. “in honduras, police accused of corruption, killings.” available at: http://www.npr.org/2012/02/11/146668852/in-honduras-police-accused-of-corruption-killings. last accessed 2/12/2012. tokatlian, juan gabriel. 2012. la poslegalidad en ee.uu y europa: del acoso democrático al ocaso democrático. blog post at: http://clioperu.blogspot.com/2012/01/la-poslegalidad-en-eeuu-y-europa-del.html. last accessed 2/12/ 2012. zelaya, manuel. 2012. “dicen que nos asesinaran a xiomara y a mi.” podcast retrieved from http://www.youtube.com/watch?v=6kigk9wm7l4. last accessed 2/12/2012. _________________________________________________________________________________________________ 6 _________________________________________________________________________________________________ 3 danushka medawatte review: women’s access to transitional justice __________________________________________________________________________________ feminists@law vol 12, no 1 (2023) __________________________________________________________________________________ noemí pérez vásquez, women’s access to transitional justice in timor-leste: the blind letters, oxford: hart publishing, 2022 danushka medawatte[footnoteref:1]* [1: * phd candidate, kent law school, university of kent, uk. dm666@kent.ac.uk ] noemí pérez vásquez’s women’s access to transitional justice in timor-leste: the blind letters is a welcome addition to the growing body of critical literature on transitional justice (tj). it is published against a background where monographs on tj’s application to specific jurisdictional contexts remain limited. using the case study of timor-leste, pérez vásquez investigates how women navigate tj processes against extant patriarchal convictions of both international and national actors. particularly, she challenges two positions of tj’s mainstream literature. first, is the assumption that tj is inherently just. second, is that it is a ‘global’ justice system that states (are expected to) turn to through new laws and purpose-built tj institutions in the aftermath of conflicts: conflicts that have left many with experiences of harm. to critique these broad claims of tj, pérez vásquez relies on data she gathered from conducting interviews with policy makers, investigators, and other actors of justice, and more importantly with seventy-seven timorese women, who have suffered various forms of violence during the indonesian intervention. these harms include sexual slavery, forced impregnations, forced and temporary ‘marriages’, forced abortions, and other grave forms of sexual and gender-based violence. the engagement of such women as research participants brings ethical considerations that pérez vásquez has explained in detail (pp.22 26). she is, however, critical of the ethical practice that obliges researchers to hide all participant identities through anonymisation, based on the generalist presumption that ‘these women are vulnerable’ (p. 26). i find this criticism to be particularly important for research relating to women of the so-called ‘third world’. while ethical precautions are very important and at times, life-saving, they should – like any other regulatory practices – be assessed on a case-by-case basis. to not do so may contribute to perpetuating epistemic injustices and discursive violence which postcolonial feminisms attempt to uncover and address. pérez vásquez signals these ethical considerations and where appropriate, recognises and makes her research participants visible in a multitude of ways. from these, i am especially impressed by her chapter titles which transcend the orthodox academic standards. she creatively quotes her research participants in her chapter titles to give a thematic thread to the chapter and to shed light on the insights of her research participants. in doing so, pérez vásquez treats her research participants as knowledge–makers of postcolonial feminisms. she also uses a range of photographs from her field visits to give visibility to her research participants. due to ethical standards of research with which, like all qualitative researchers, pérez vásquez has had to comply, she uses participant numbers to refer to her research participants. this practice can lead to denial of identity to research participants. such denials remind me of w.h. auden’s poem ‘the unknown citizen’ where the life of an unnamed citizen referred to only by an alpha-numeric code is celebrated by constructing a marble statue.[footnoteref:2] his memorialisation and the denial of his individual identity occur in parallel. committing his memory to the history and his erasure from history paradoxically coincide much like the research participants whose individualities are erased even when their stories are immortalised through research. [2: poem published in w.h. auden, another time (random house, 1940).] while provoking the thoughts of readers concerning ethical challenges, pérez vásquez also mounts a critical challenge to mainstream tj literature. assessing her data from a postcolonial feminist approach, she demonstrates that when applied to postcolonial / post-conflict states like timor-leste, tj exhibits dissensions with contextual realities. in her view, this occurs as tj is a mechanical design sold in packages as ‘quick solutions to conflicts’ which can be contrasted to tj’s modern origins that arose in response to nuremberg and tokyo trials of the second world war (p.3.). when extracted from such loci of tj theory and praxis, and applied to contexts like timor-leste, pérez vásquez says tj can exacerbate the invisibility of and discrimination against certain sections of the populations due to the unquestioning assumptions that we maintain of tj’s capacity to provide justice. such tj postulates take for granted the tribulations of those who have endured structural injustices and discrimination experienced in intersectional ways. these harms continue to remain unresolved through laws, policies, politics, economics, and at societal levels, even within post-conflict tj contexts. timorese women experience how tj processes overlook these complexities because tj, according to pérez vásquez, predominantly represents a masculine human rights strategy that intervenes in the lives of the post-colonial subjects. when this is coupled with gender blindness in the design and processes of tj, it culminates in obliterating women’s realities and contributes to the perpetuation of discrimination against women. within this broader context, pérez vásquez makes two claims. first, she argues that women are required to meet a higher threshold in accessing justice processes. this claim is premised on her proposition that tj is applied to domestic contexts notwithstanding the barriers found in the laws and policies of implementation, and at family and community levels. her second argument is that the relationship between conflict-related violations and economic justice creates significant consequences for times of peace. she exposes how these ramifications arise in connection with what she calls tj’s insufficient attention to state-produced welfare structures, such as veteran pensions, that are established within domestic settings after a conflict. it is the burden of this central issue of barriers in the administration of tj that pérez vásquez proceeds to discharge through the eight chapters of her book. pérez vásquez begins answering this central question with a provocative story from which she forms a metaphor that runs through her work. she recalls how when one of her research participants was asked if she knew how to read and write, rather than saying ‘yes’ or ‘no’, she answered ‘yes, i went to the school of blind letters’ (p. 1). this meant that the school was there, but she could not learn how to read and write because she could not see the letters. pérez vásquez uses this as a metaphor to say, similarly, ‘transitional justice may also be there, but that due to intersectional forms of discrimination, it is only accessible for a few’ (p. 1). using this metaphor, she uses nancy fraser’s tri-dimensional model of gender justice which highlights the need for: · better political representation of women and their interests in public decision-making; · an understanding of the cultural dimensions of recognition, meaning ‘revaluating disrespected identities and the cultural products of marginalised groups’; and · the economic dimension of redistribution of income and the re-organisation of the division of labour. pérez vásquez’s in-depth reflections are on the first dimension of the above model, and her overall conclusions also take cognizance of the third dimension. however, she does not offer the reader a nuanced exploration of whether women perceive themselves as disrespected identities and cultural products of marginalised groups, which, if provided, would have aligned her work with the second dimension of fraser’s model as well. although pérez vásquez notes that her deeper engagements are with the first dimension (p. 3), the limited exploration of the second dimension is striking for three reasons. first, the methodological choices she has made in this monograph. she claims her analysis is generated through postcolonial feminist approaches (p.15; p.241). therefore, an intentional engagement with how timorese women perceive their identities, intersectionalities, and ontological dependencies that arise in connection to, for instance, ethnicity, language, and political factionalism of timor-leste could have added value to pérez vásquez’s feminist interventions. to the readers, this analytical limitation becomes observable because it contrasts with pérez vásquez’s own acknowledgement that identities can be gendered (p.75), and because she concedes that exploring women’s identities is an important component of women’s law research (p.117). the second reason why the insufficient engagement with the second dimension of fraser’s model becomes intriguing is because pérez vásquez, though not assessing women’s perceptions of identities, has assigned substantial weight to women’s perceptions of justice (see her appendix of interview questions, pp.250 251). this demonstrates that her research did employ women’s perceptions as an analytical tool, though not in relation to what they thought of their own identities. this makes the reader contemplate if the perceptions of justice would have been articulated differently by research participants had they been prompted through interview questions to factor in intersectionality of women's gendered identities. third, the exclusion of the second dimension is also puzzling as the tri-dimensional model of fraser is a connected whole. pérez vásquez’s own analysis provides testimony to how the first and third dimension are inherently linked to the second. hence, this gap leaves room for analysing how timorese women’s perceptions of access to tj could be nuanced if the ways inequalities intersect are considered in assessing their identities. further research could consequently be generated by exploring these ontological elements that have remained unassessed in this monograph. notwithstanding these concerns, pérez vásquez’s attention to the contextual realities that bear on its tj process is commendable. particularly, in chapter 2, she provides a concise, yet comprehensive history of timor-leste, inclusive of its colonial legacies, timorese experiences of the impact of international legal frameworks, and how both colonialism and international law matter in the context of indonesian interventions that led to large-scale human rights violations. she uses this chapter as a background that helps the reader understand timorese tj process more vividly. building on this background, pérez vásquez reflects on silence and memory as a part of tj in chapter 3. she shows how silence and memory are interwoven with invisibility and discrimination against women. the chapter is significant for it demonstrates that (often politicised) official memories inhibit individual memories and narratives thereby suppressing victim visibility. she contends that such suppressions emanate from the hypermasculinisation of society and national identity that create a continuum of violence against women. however, all women do not follow the same path in coming out of this continuum. for instance, pérez vásquez shows that she met with research participants who expressed interest in learning a skill, ‘an activity that is sustainable’ as opposed to talking ‘over and over again’ of traumatic events they had experienced (p. 89). their choice appears like ‘silence’. nevertheless, learning something sustainable and deciding whether or not they want to relive their past trauma is an awakening of their agency. it challenges the ‘western idea that talking is healing’ (p. 89). pérez vásquez suggests these choices, which may overtly appear to be a form of silence, are not representative of disengagements with tj processes. she claims that they are in fact alternative tj engagements that affirm and perhaps even reclaim women’s agency by letting them redefine what justice means to them or how they wish to access justice. given that this contains nuances concerning the politics of memory and talking therapy as a part of tj, there is potential here for a more robust substantiation of this line of argument. it could possibly build on lia kent’s work on timor-leste[footnoteref:3] with which pérez vásquez has only cursorily engaged with in the present monograph. [3: see, lia kent, ‘engaging with ‘the everyday’: towards a more dynamic conception of hybrid transitional justice’ in joanne wallis et al, hybridity on the ground in peacebuilding and development: critical conversations (anu press 2018) 145; lia kent, ‘sounds of silence: everyday strategies of social repair in timor-leste’ (2016) 42 australian feminist lj 31; nicole george and lia kent, ‘sexual violence and hybrid peacebuilding: how does silence ‘speak’?’ (2017) 2 third world thematics: a twq journal 518; and lia kent, ‘local memory practices in east timor: disrupting transitional justice narratives’ (2011) 5 int’l j of transitional justice 434.] after analysing gendered perspectives of silence and memory in chapter 3, pérez vásquez exposes four gendered administrative complications of tj in chapter 4. these relate to investigations, forensic and medical expertise, post-conflict international relationships between states, and the public–private dynamics that affect tj within the state. pérez vásquez says one primary challenge in investigations stems from investigators refusing to visit sites of violence or locations where victims reside. for instance, this had happened in timor-leste when investigators were unwilling to leave their comfort zones and travel to the municipalities from dili – the capital. second, she critiques the un for not having processes in place for obtaining the services of forensic and medical experts to deal with allegations of sexual violence. she notes however that such expertise was available when dealing with the deceased. this commentary raises the poignant question of whether a living woman’s search for justice has lesser value in tj processes, which appear to employ more sophisticated forensic strategies when dealing with the dead. third, the timorese government’s attempt to develop a diplomatic relationship with indonesia has resulted in the undermining of the timorese tj process. together, these three points reveal how administrative issues in tj obstruct women’s access to justice. fourth, pérez vásquez explores how the public and private dynamics work in timorese society where the pressures within the family, that is – the ‘private’, prevent the women from accessing tj institutions – the ‘public’. building on these, pérez vásquez moves to the second half of her monograph where her feminist interventions become more defined. among these, chapter 5 ‘women, truth, and reconciliation: here comes the victim’, is emotion-evoking. in it, pérez vásquez presents how the testimonials before tj institutions have attracted double victimisation for timorese women. when women expose their traumas before these institutions, they are legally defined as victims. then when such women are seen in society, others point and say, ‘here comes the victim’ (p. 160). what this leads to is a feminisation of victimhood (p. 162). for instance, she says a tortured man would not be considered a victim and be treated more as a hero who has made sacrifices during the conflict. yet, the paradox here lies in how access to reparations within tj are targeted at men. as pérez vásquez skilfully shows in chapter 6, this arises from the societal perception that ‘men were the most affected’ (p. 178). within that context, it is thus ironical to label women who have experienced (particularly sexual) violence as forever victims or ‘mistresses of the bapas’[footnoteref:4] (p. 213) whose self-worth is considered to have been forcefully taken by indonesian men. there is a distinctly gendered ‘us versus them’ narrative here that merits further inquiry as it may generate a discourse on the worth of a woman’s body being assessed in relation to the ethnicity/nationality of the perpetrator who commits such violence. [4: indonesian men. ] having drawn the reader’s attention to these gendered problems within tj’s administration, pérez vásquez reminds us that there are benefits in tj if we can ensure that existing discriminatory dynamics are not perpetuated and exacerbated through tj processes. in other words, gendered challenges of access to justice in tj do not mean that one should throw the proverbial baby out with the bathwater – rather, it is a plea to make tj work by effectively addressing tj’s gaps. pérez vásquez’s data, though based on timor-leste, accordingly, generates nuances that can be applied to critiquing and reformulating tj processes more generally irrespective of where it is applied. she demonstrates this possibility by using many comparative examples throughout the monograph. pérez vásquez inspires intellectual inquiry and provides an affirmative way to think of tj through her impressively documented monograph that is well-situated in literature. it is an excellent critical intervention that helps rethink women’s access to transitional justice globally. __________________________________________________________________________________ 4 __________________________________________________________________________________ 3 untitled document feminists@law, vol 8, no 1 (2018) the sexual contract: 30 years on carole pateman* this is a video of carole pateman's keynote address at the sexual contract: 30 years on conference held at the school of law and politics, cardiff university on 10-11 may 2018. in her address, pateman reflects on the antecedents and contemporary context for the writing of her book, the sexual contract (polity press, 1988), in political theory and in the women's movement of the 1970s. she goes on to discuss several key features of the book, including the distinction made in chapter 2 between different historical forms of patriarchy, with the modern form of patriarchy being based on contract, in which sexual subordination is presented as voluntary. she notes that the book focuses on contracts concerning property in the person and in particular contracts within three institutions: employment, marriage and prostitution. she goes on to respond to some of the feminist criticisms of her argument about prostitution, before concluding by noting the interdisciplinary audience the book has attracted, particularly among legal academics.   * distinguished professor emeritus, department of political science, ucla and honorary professor, cardiff university. email: pateman@ucla.edu. chris chapman working together against the criminal justice system __________________________________________________________________________________ feminists@law vol 12, no 1 (2023) __________________________________________________________________________________ working together against the criminal justice system, forced treatment, interlocking oppression, and common sense: disability, criminal justice and law and decarcerating disability chris chapman[footnoteref:1]* [1: * school of social work, york university, canada chap@yorku.ca ] abstract this piece reflects on some resonances between disability, criminal justice and law and decarcerating disability, suggesting that they are part of a shared political and intellectual project that a) interrogates common sense practices of penalty and disability care through an interlocking oppression lens centring colonialism, racism, disability, and capitalism, and b) helps us to question the lines between violence and nonviolence in response to distress and disability. i would like to start with a personal story – the story of first meeting liat ben-moshe, at least as i remember it: we were both attending a society for disability studies conference, which must have been 2008 in new york city. i attended her talk because her topic sounded incredible, and i asked some question of her. later she came to my paper and after i was done, she came up to me and said, “i know why you’re interested in my work. it’s because we’re doing the same thing!” this was a little baffling to me, because she was discussing things i’d honestly never considered: the relationship between deinstitutionalization and prison abolition activism. and she was doing so by intersecting anti-black racism analysis with disability studies. my paper had an unruly title of 26 words and was about a residential treatment centre in which i worked, trying to make sense of how legacies of eugenics and indian residential schools came together in my work with disabled indigenous children in micro-practices like teaching “pro-social skills” – drawing primarily on anticolonial indigenous analyses and disability studies (later published as chapman 2012). our projects were hardly the same, at first blush, but ben-moshe was right that we were both chipping away at a larger political and intellectual project to better understand and challenge the institutions that we live with today that can’t be made sense of fully without an interlocking oppression analysis. and i think that’s what enabled our subsequent edited collection with allison carey disability incarcerated (ben-moshe, chapman, and carey 2014) a book exploring various ways that practices and sites of confinement interlock with disability oppression, colonialism, racism, and capitalism to be and do what it is and does – or at least what it was and did in the historical moment of 2014. in conversation last summer, ben-moshe described disability incarcerated as now an “artefact,” given the incredible amount of activist and scholarly energies that have gone into that larger political and intellectual project since that time, especially under the (sometimes overlapping) banners of disability justice and black lives matter organizing. we certainly weren’t the first, and we most certainly weren’t the most important artefact in that ongoing trajectory of struggle, but i think we contributed something that made a difference to the extent that projects like scholarly edited collections can do so. disability injustice: confronting criminalization in canada (fritsch, monaghan, and van der meulen 2022) is another edited collection with a wide array of chapters that cover arenas and theorizes well beyond what was done in disability incarcerated. ben-moshe wrote the final chapter (ben-moshe 2022), and i had the great privilege of reading it before it was released. this book is an excellent collection that in some ways does work that disability incarcerated couldn’t yet do in 2014, thanks to eight years of activism and scholarship that pushed what was possible to do and say and imagine. all of that is an introduction to me saying that i believe that decarcerating disability and disability, criminal justice and law also “do the same thing” and are part of this much larger political and intellectual project – as can also be said of disability injustice. disability, criminal justice and law and decarcerating disability are very different projects in many ways. linda steele’s book brilliantly explores court diversion as a means of increasing the carceral control of people’s lives – particularly poor, racialized or indigenous, disabled people’s lives; ben-moshe’s just as brilliantly explores the relationship between prison abolition and deinstitutionalization – focusing on anti-carceral activism and counter-organizing. these are hardly the same thing. but both are attempting to trace out how race, colonialism, disability, and class create and restrict possibilities for life and means of understanding, accepting, imagining, and critically engaging. they are very much part of the same larger project. they both ask us to deeply question things that tend to be taken for granted; they both argue that the changes we need are much more far-reaching than simple reforms. in the panel on their books at the law and society association last year in which i participated, someone (maybe me) said that both books use a foucauldian analysis (meaning one based partly on the work of michel foucault; although it might be more accurate to say that they both do so in the tradition of jasbir puar’s (2017) reiteration of a foucauldian analysis, as well as other recent work that centres the relationship between disability oppression and racism, such as that of nirmala erevelles (2011), rachel gorman (2013), ameil joseph (2015), and louise tam (2013)). at any rate, during the panel someone said, “foucauldian analysis” and the closed-captioning captured the phrase as “accordion analysis” – hilarious, maybe, but this enabled me to ad lib one of the things that i most appreciate about these two important and wonderful books. in the first volume of the history of sexuality, foucault describes what he calls his method and includes what he calls “the rule of double conditioning” (foucault 1990, 99). according to this “rule,” micro-practices shape large-scale societal structures and discourses at the very same time that large-scale societal structures and discourses shape micro-interactions and even thoughts and feelings. we squeeze the accordion to look at how the large scale (partly) determines action, thought, interaction and so on; and then we pull it apart to explore how the micro-level cumulatively shapes the macro. back and forth, taking both equally seriously, we make the music of critical analysis. the “accordion analysis” that ben-moshe and steele both do so seamlessly is the tracing of this rule of double-conditioning: they move from the very local and specific – whether a specific person’s experience of court diversion or a specific community’s mobilization around deinstitutionalization – to the broad-scale socio-economic, settler colonial, white supremacist, disablist, cisheteropatriarchal, and capitalist structures and discourses that both shape the local and specific and are cumulatively and forever shaped and reshaped by so many locals and specifics. for me, this is essential. many years ago now, i was actively involved in anti-capitalist/ anti-globalization street protests and i was also working therapeutically with men who perpetrated violence against their female partners. i wondered about how people in the imf or world bank could sleep at night; i wondered whether their strategies for being at ease with what they did might be similar to those of the men i was working with; i wondered if, like many of the men i worked with, they might have glimmers of shame, self-doubt, and responsibility-taking that usually didn’t go very far but had some potential to take them elsewhere. i wondered if there might be a relationship between individual “ethics” and feelings and the kinds of interactions that might help someone take their glimpses of accountability seriously, on the one hand, and possibilities for large-scale societal transformation, on the other. i wondered about “accordion analysis”, or the rule of double conditioning, without having the language at the time to quite realize it. these two books can help us to find the language to realize how important the “personal is political” is to both changing our world fundamentally and living our most loving and nonviolent lives. they accordion between the “big p” political and the interactional, legal, or bureaucratic. they also both ask us to deeply critically engage with what might seem like goodness or benevolence or progress, as i hope some of my work also invites of readers (chapman 2014; chapman and withers 2019). disability, criminal justice and law explicitly and centrally does this by upending the commonsense in which diverting criminal penalty toward (nonvoluntary) treatment and surveillance increases a person’s possibilities for life and freedom. decarcerating disability does so, for example, in its interrogation of “mental health treatment” in prisons. and i too have tried to demonstrate ways that professional care, treatment, and support – especially when nonvoluntary – are very often experienced as violence, denigration, and oppression by those subjected to them. perhaps it’s another way that it might be said that we’re doing “the same thing” – or at least that we’re part of a much larger and very diverse common project. thinking with that resonance across these books, i’d like to end with a question: how might disability, criminal justice and law and decarcerating disability both help us to respond to the well-intentioned notion that police responses to crisis might be fruitfully and non-violently replaced by social work or mental health professional responses? what are the dangers in assuming that one is violent and the other is not – or even is less violent by virtue of the respondent presumably not being armed? if the aim is to eliminate violence and oppression, are helping professionals a good enough alternative to policing and prisons? references ben-moshe, liat. 2022. “refuting carceral logics and their alternatives: toward noncarceral (disability) futures.” in disability injustice: confronting criminalization in canada, edited by kelly fritsch, jeffrey monaghan, and emily van der meulen, 304-329. vancouver: ubc press. ben-moshe, liat, chris chapman, & allison c. carey (eds). 2014. disability incarcerated: imprisonment and disability in the united states and canada. new york: palgrave macmillan. chapman, chris. 2014. “becoming perpetrator: how i came to accept restraining and confining disabled aboriginal children.” in psychiatry disrupted: theorizing resistance and crafting the (r)evolution, edited by bonnie burstow, brenda lefrançois, and shaindl diamond, 16-33. montréal: mcgill-queen’s university press. chapman, chris. 2012. “colonialism, disability, and possible lives: the residential treatment of children whose parents survived indian residential schools.” journal of progressive human services, 24(2): 127-158. chapman, chris, and a.j. withers. 2019. a violent history of benevolence: interlocking oppression in the moral economies of social working. toronto: university of toronto press. erevelles, nirmala. 2011. disability and difference in global contexts: enabling a transformative body politic. new york: palgrave macmillan. foucault, michel. 1990. the history of sexuality, volume 1: an introduction. new york: vintage. fritsch, kelly, jeffrey monaghan, and emily van der meulen. 2022. disability injustice: confronting criminalization in canada. vancouver: ubc press. gorman, rachel. 2013. “mad nation? thinking through race, class, and mad identity politics.” in mad matters: a critical reader in canadian mad studies, edited by brenda lefrançois, robert menzies, and geoffrey reaume, 269-280. toronto: canadian scholars’ press. joseph, ameil. 2015. deportation and the conflience of violence within forensic mental health and immigration systems. new york: palgrave macmillan. puar, jasbir. 2017. the right to maim: debility, capacity, disability. durham: duke university press. tam, louise. 2013. “whither indigenizing the mad movement? social relations of race and madness through conviviality.” in mad matters: a critical reader in canadian mad studies, edited by brenda lefrançois, robert menzies, and geoffrey reaume, 281-297. toronto: canadian scholars’ press. __________________________________________________________________________________ 4 __________________________________________________________________________________ 3 untitled document feminists@law, vol 8, no 1 (2018) the unravelling patriarchy joan tronto* this is a video of joan tronto's keynote address at the sexual contract: 30 years on conference held at the school of law and politics, cardiff university on 10-11 may 2018. in her address, tronto begins with carole pateman's insight in the sexual contract (1988) about the incapacity of contract to produce freedom and equality, and considers the possibilities for an alternative organisation of human relations based on care ethics. she observes that in the years since the publication of the sexual contract, neoliberalism has resulted in a rewriting of the sexual contract. under neoliberalism, the entry of women into the labour market, the full commodification of women's work and increasing economic disparities between men have resulted in some women becoming 'honorary individuals', substantially autonomous of men, with the consequent disruption of both men's political and sexual domination of women. this process has, in turn, given rise to a violent, misogynist and antidemocratic backlash in the form of neopopulism, in which men who have lost out economically feel a sense of deprivation, blame women, and seek a return to earlier forms of patriarchal domination. against this background, she argues, care ethics provides a means of rethinking democratic commitments. a more just allocation of caring responsibilities could lead to a caring democracy without a return to gender subordination.   * professor of political science, university of minnesota, usa. email: jctronto@umn.edu. untitled document feminists@law, vol 8, no 1 (2018) the influence of the sexual contract on the law’s distribution of property in intimate relationships kate galloway* this is a video of a paper given at the sexual contract: 30 years on conference held in the school of law and politics, cardiff university on 10-11 may 2018. this paper was part of panel 1: the marriage contract, chaired by kathryn mcneilly. the powerpoint slides accompanying the paper are available as a separate file. despite more than a century since the married women’s property acts came into force throughout the commonwealth, the common law’s approach to the distribution of property between couples in a marriage or marriage-like relationship has failed to accommodate the deeply gendered experiences of men and women in intimate relations. instead, the general law, i.e. judge-made law outside statutory family law provisions, embodies often unconscious gendered assumptions that have implications for the equitable distribution of property between men and women. in light of assumptions generally about sex equality, and about the neutrality of the law, one might ask why this underlying inequality perseveres. this paper draws on pateman’s articulation of the sexual contract to explain, and to navigate, the tensions inherent in the general law’s approach to property distribution between heterosexual intimate partners. it posits that the sexual contract at once establishes an equal place for women as owners of property in the liberal mould yet silences their claims for equitable distribution between them and their spouses. it helps explain the law’s differential norms of what constitutes an expression of will, and what is valued in terms of contribution—the two ingredients for establishing an interest in property. pateman’s theorisation of women’s status simultaneously as insiders and outsiders provides a means of understanding the incongruity within the law of intimate partner trusts, the implications for women’s property, and how the law might move beyond existing constraints.   * associate professor, faculty of law, bond university, australia. email: kgallowa@bond.edu.au. feminists@law vol 1, no 1 (2011) __________________________________________________________________________________ human rights law and indigenous women irene watson* what the things are which make us human and how that is determined, are concerns which drive my research. who defines our humanness: ourselves, our communities, other communities, the state? the question of what it is to be human is significant; humanity is a fractured space, fractured into many frames. one space i occupy is aboriginal indigenous, one of the first peoples, colonised, dispossessed and resisting assimilation, resisting genocide. another space is mimini: woman, also resisting assimilation and the death of the mimini. to some extent, who it is that has the power to determine questions of humanity and the rights to be human, holds the power to either enable or disable humanity. they hold power to construct and measure human values and their worth. human rights jurisprudence would have us believe that all people are accorded the same rights; there should be no discrimination on any grounds including ethnicity, race and sex against anybody. however, these ‘rights’ are experienced differently by different people. it happens that the difference can be measured and scaled according to how close one is located to centres of power and privilege. indigenous women of australia suffer from multiple disadvantages linked to race and gender and the experiences of an historical and continuing colonialism. it’s a potent mix of disadvantage. the capacity for human rights laws to redress power imbalance is the concern of my research. * associate professor in aboriginal studies, david unaipon college of indigenous education and research, university of south australia, adelaide, australia. �hyperlink "mailto:irene.watson@unisa.edu.au"�irene.watson@unisa.edu.au�. __________________________________________________________________________________ 1 1 svensson and gunnarsson gender equality in the swedish welfare state feminists@law vol 2, no 1 (2012) gender equality in the swedish welfare state eva-maria svensson* and åsa gunnarsson** introduction the aim of this article is to present a framework for understanding the distinct swedish model of gender equality that is both comprehensive and progressive. the gender equality policy of the swedish state, closely intertwined with social democratic welfare state ideology, has developed over the last 40 years based on a structural understanding of equality and has covered most policy fields. the model obviously has been successful, as measured in global gender gap indexes and the like (world economic forum, the global gender gap index 2006-2011). today, women in sweden have a high level of labour market participation and education, and sweden has instituted policies for the reconciliation of work and family life, for public support for families with small children, for women’s bodily and physical integrity, and for the fight against domestic violence and prostitution. here we will give an overview of gender equality as an area of special interest for state policy, first formulated in the 1970s, and try to show how this area of policy has been reflected in explicit and extensive regulations promoting gender equality. we will show how law has been used both as a means of guaranteeing non-discrimination and as a means of introducing active measures. and we will also provide an analysis of how gender equality regulation, produced in dialogue with the welfare state ideology, has developed a strong and comprehensive structural base for achieving gender equality. in addition however, this article will critically review sweden’s self-image of “a good and equality-producing state”. it will argue that in fact, the swedish state has shown a lack of ambition to fully challenge the gendered segregation of the labour market, to change the uneven distribution of economic and political power in many sectors of society, and to fulfil the political goal of shared parental responsibilities. we will critically examine those gender-biased discriminatory practices embedded in the swedish model, particularly in the case of specific social groups such as single mothers and migrant women. finally, we will explore the changes to gender equality policy brought about by sweden’s membership of the european union; for example, the increasing focus on individual rights and anti-discrimination strategies coupled with the decreasing concern about the structural patterns of gender inequalities. gender equality policy and welfare state ideology the representation of the swedish state as a form of state feminism, or at least as a women-friendly welfare state, has its roots in how it has actively advanced women’s interests. empirical evidence reinforces this image, an image encouraged not least by feminist scholars who have valued and supported extensive programs providing: welfare for women, families and children; measures to increase female participation in the labour market; and, gender mainstreaming in policy making. a prominent characteristic of the swedish model is truly the fact that gender equality policy is closely intertwined with the swedish welfare state ideology. in the formation of the welfare state gender equality has been a major concern in many welfare reforms, and has been particularly important in those reforms oriented to the labour market (hernes 1987; sainsbury 1996; bradley 1996; bergquist et al. 1999). by promoting a socially egalitarian citizenship based on notions of solidarity and redistributive social justice the swedish social democratic welfare state has had a comparatively high degree of universalism regarding social benefits (kautto et al. 2001 and sou 2000:83; gunnarsson et al. 2004). general services and benefits available for eligible residents are the most inclusive part of swedish social citizenship, in contrast to earnings-related social insurance benefits (sainsbury 1996, 1999; gunnarsson 2007). flat-rate benefits for households with children, such as the child allowance, health and childcare services and means-tested benefits, such as the housing allowance, have had a significant redistributive effect in favour of women (skatteverket 2007:2; prop. 2009/10:1). however, although gender equality has been a major concern in many welfare reforms, it has been particularly so in those oriented at the labour market (hernes 1987; sainsbury 1996; bradley 1996; bergquist et al. 1999). employment strategies have acknowledged the significance of work in achieving economic independence and in earning the right to social security. workfare-oriented gender equality the idea of ‘workfare’ is at the core of the swedish welfare state model that is based on an egalitarian ideology of social citizenship, and so also central to the policy of promoting gender equality. in contrast to a ‘bread-winner’ ideology, under the notion of ‘workfare’ men and women alike have been regarded as self-supporting individuals within a labour market in line with the ideal of a dual income-earner family ideology (gunnarsson et al. 2004; mannelqvist 2007; pylkkänen 2009). at an early stage of the welfare state project a combination strategy was developed to enable women to fulfil the responsibilities of care whilst pursuing their wish to be self-supporting. radical reforms in the 1960s and 1970s addressed gender equality based on the narrow egalitarian idea of promoting married women’s labour market participation (gunnarsson and stattin 2001; gunnarsson et al. 2004; pylkkänen 2009, 123-149). the combination strategy aimed to further encourage women to participate in the labour market, whilst facilitating married women to combine paid work with family life. it thereby became a driving force in the active integration of women into the public sphere of social citizenship. the abolition of joint taxation, together with progressive social reforms such as the introduction of publicly financed day care for children and sex neutral parental leave, also proved to be valuable additional incentives. similarly, the sex neutral parental leave reform, coupled with generous parental leave insurance, was designed to stimulate fathers and mothers to share responsibility for their children on equal terms (gunnarsson and svensson 2009, 50). this emphasis on the labour market was closely linked to an acknowledgement of the importance of the educational system in achieving gender equality. education is generally seen as a means of changing gendered stereotypical choices, both within education itself, and in the pursuit of professional careers and possibilities within the job market. indeed, the democratic values that permeate much of educational theory and practice thoroughly embrace gender equality, so that schools as well as higher education institutions have long had an obligation to promote gender equality (gunnarsson and svensson 2009, 49). from jämställdhet to gender mainstreaming the social differences between men and women came under increasing scrutiny in the 1960s and in response to political debate, much of it driven by the women’s movement. a specific concept, jämställdhet, was introduced in politics to describe sex/gender equality. its purpose was to visualize and focus on the lack of equality between the sexes. the then prime minister and chair of the social democratic party, olof palme launched this concept in two famous speeches at the national party conventions during the fall of 1972, and jämställdhet subsequently became institutionalised as an official area of governmental policy. palme managed to thereby incorporate women’s fight for equal opportunities as an integral part of the welfare objectives for the working class (gunnarsson and svensson 2009, 45). jämställdhet should be translated as either sex or gender equality, but has different connotations depending on context. in essence it embraces the specific equality between men and women, and no other form of equality such as that between social classes. political rhetoric reserved the term equality (jämlikhet) to refer to the aim of achieving social justice for the working class. in this way the notion of jämställdhet avoided an association with unequal power and conflicts between work and capital with which the specific notion of jämlikhet was permeated. in fact the difference between jämlikhet and jämställdhet lies in the middle syllables, lik and ställd. the first signifies ‘sameness’ while the latter signifies position, i.e. ‘side by side’. so by situating men and women as equals, side by side, jämställdhet paradoxically, at least at first, managed to ‘iron out’ the dimension of power in gender relations within the official, social democratic political agenda (svensson 2001; gunnarsson and svensson 2009, 46). the workfare oriented view of gender equality, which constructed gender inequalities as merely a problem suffered by females, was further expanded in 1990 when a government commission report about democracy and power accepted a gender system analysis of the relationship between power and the social constructions of gender. during the following decade gender equality policy underwent a paradigmatic change, when the focus of the analysis of the power relations between genders switched from individuals to structures (prop. 1993/94: 147; gunnarsson and svensson 2009, 53-60). the historian yvonne hirdman introduced gender system theory into the commission report (sou 1990:44), explaining the relationship between men and women as a social system reflecting the division of power and responsibilities and how they had been structured over time within the swedish welfare state. at the same time, empirical observations, identified the subordination of women as underpinning an organisational pattern in society long accepted as stable and as resting upon two principles: the separation of the male and the female; and, the use of the male as the benchmark. this pattern was recognised as feeding a public/private division of male and female spheres of power and responsibility (sou 1990:44; gunnarsson and svensson 2009, 137). hirdman’s system analysis described changes in gender relations over time as renegotiations of gendered “contracts”. hence the ‘housewife contract’, established after the second world war, was replaced in the 1960s by a ‘gender equality’ contract whereby the idea of equality was built upon the notion of self-supporting individuals operating within the welfare state. as a consequence, although the social security system was constructed on the ideal of a dual earner family, the principle of segregation between male and female in public life was barely affected. according to hirdman, by defining gender equality on the basis of economic independence the swedish welfare state turned the remaining unequal power relations between men and women into a social problem. the lower social and economic status of women came to be defined as a matter of women’s lack of resources, i.e. as a matter of substantive inequality, though this tended to exclude questions concerning agency and participation (hirdman in sou 1990:44, chapter 3; svensson 2001; wennberg 2008, 336-344). the power dimensions in social citizenship and gender equality that hirdman revealed had an important impact on the gender policies which emerged at the beginning of the 1990s. thus the government bill on gender equality policy identified the need to address unequal power relations between men and women at both the individual and structural levels. now, instead of regarding a lack of social resources as the only cause of women’s subordination, democracy and the need for proactive measures to be incorporated into law and policies also became a part of the political project. not only equal rights, but responsibilities and opportunities for men and women in all areas of life came to represent the ideal norm for gender policies. gender equality became a matter of substantive equality or equality of outcome both in the labour market and in domestic care work (prop. 1993/94: 147; wennberg 2008, 338; gunnarsson and svensson 2009, 52-53). gender mainstreaming, the strategy for integrating gender equality into every area of government policies, which was adopted in sweden in 1994, internationally in 1995 through the beijing action plan, and in the eu in 1999, has proven to be a powerful force, at least at the policy level. gender mainstreaming in policy making is legally manifested in an ordinance for all government commissions and inquiries to consider the consequences for gender equality in their proposals, and in an ordinance for all public statistics to be sex-segregated. there are also documents of a soft law character that guide the work of public authorities in the mainstreaming of gender equality. the most recent parliamentary reform of gender equality policy in 2006 changed the expression of the overall objective from one of equal rights, responsibilities and opportunities for men and women, to a statement that women and men should have the same power to shape society and their own lives. the same rights, opportunities and responsibilities are now seen as preconditions for achieving this objective (prop. 2005/06:155). the new formulation embodies the recognition of the need to see differences between individuals and groups, and is supposed to be implemented in all policy areas. to this end four sub-objectives were launched, and although in 2008 they were largely abandoned by the government, they still give a good indication of the direction of government policy (skr. 2011/12:3). the first concerned the equal distribution of power and influence. it expressed the view that men and women should have equal opportunities to become active citizens and participate in decision making. the second concerned economic equality. central to this was the idea of having equal opportunities to access education and paid work as a means of attaining economic independence. the third was about equal responsibility and the sharing of unpaid domestic and care work, whilst the final objective ‘declares’ an end to men’s violence against women and the right to physical integrity for both young and old. all four sub-objectives entailed both formal rights and substantive rights, with the latter implying the state’s responsibility to be active in achieving equality of outcome (prop. 2005/06:155; wennberg 2008, 339-343; gunnarsson and svensson 2009, 57-59). gender equality regulation in law the swedish model of comprehensive gender equality policy is reflected in extensive regulations covering many aspects of social life though not all these regulations are the result of national policies. there are several layers of gender equality principles, codified in human rights instruments, in the treaty on european union (teu) and in the swedish constitution. gender equality regulations have reflected this multitude of influences from different legal cultures and legislative powers. some are constructed as legal rules within liberal state-oriented anti-discrimination legislation. others are rooted in the welfare state ideology with the aim of changing structural patterns of sex and gender discrimination. here the law provides regulations about positive discrimination and ‘active measures’, that is, regulations with the explicit purpose of promoting gender equality (svensson 2005; gunnarsson and svensson 2009, 63, 76). one should also bear in mind that the term ‘gender equality regulation’ covers sex neutrality, gender neutrality and sex or gender-sensitive regulation. sex neutrality remains the main objective behind all gender equality regulation, with anti-discrimination regulation being based very much on this view. gender-neutral legislation holds various kinds of behaviour in equal position, no matter who performs the act in question. and a rule can be understood as sex or gender sensitive when its starting-point is the relevance of sex or gender, as for example, with the prohibition of the purchase of sex. the first sex equality act with anti-discrimination rules was enacted in 1980, partly influenced by a focus on anti-discrimination in eu, and has been since strengthened. on the other hand, the dual-earner workfare ideology introduced in sweden much earlier is now an important part of the target for full employment in the lisbon strategy, an eu policy that reflects the challenges faced by european welfare economies in finding a future solution for the care of children and the elderly. constitutional principles the regulations emerging from gender equality policy were initially based on a formal equality principle that the law should be sex neutral. this principle was codified in the constitution in 1976, together with the recognition of possible exceptions for specific rules aimed at improving equality (svensson 2001). the sex-neutral, formal equality rule formed the general rule, with exceptions being used in rare cases. over time, additional rules were adopted with the aim at achieving equality. in sweden these rules followed the european union anti-discrimination provisions and some proactive measures. on some issues however, sweden took a different path, for example in regards to understanding the purchase of sex and the importance of shared parental leave (gunnarsson and svensson 2009, 64-69). in sweden, the formal sex equality principle in the swedish constitution has still not fully been adjusted to the equality regulation of the teu (sou 2007:67). since the late 1990s the formal sex equality principle has, as in the rest of the eu, been replaced by a substantive, or de facto, gender equality principle. sweden is bound to the substantive principle expressed in teu and it has other regulations explicitly based on a substantive principle. its gender equality regulation therefore covers both formal (sex) neutrality and substantive (gender) equality principles – embodying a mixture of anti-discriminatory and equal opportunity sex equality regulations, plus others aimed at promoting structural gender equality. but when formal equality clashes with active structural measures the legal system seems to prefer formality (gunnarsson and svensson 2009, 64-69). equal opportunities and anti-discrimination gender equality was initially understood as a question of equal opportunities, which according to the swedish model is supposed to be achieved through economic independence and individuals supporting themselves. the first regulation regarding equal opportunities was the sex equality act, adopted in 1980, and which only applied to working life. additionally, access to education was also seen as an important issue and regulation about gender equality in education was added in the 1980s (gunnarsson and svensson 2009, 70-71). the sex equality act, which introduced a new authority, the gender equality ombudsman, contained two sets of provisions. the one, concerned with the prohibition of sex discrimination, targeted discrimination at the individual level. the other was directed at active measures to promote sex equality in the workplace and addressed structural discriminatory practices. both have been subsequently strengthened over time following changes in eu anti-discrimination legislation. the sex equality act was incorporated into a new general discrimination act from 2009, encompassing discrimination on the grounds of sex, transgender identity or expression, ethnicity, disability, sexual orientation and age. although one purpose was to reinforce the protection against discrimination and the active measures, there has been some weakening of the law in regard to sex (sou 2006:22, 692). yet at the same time, the objective of the action plan for a gender equal working life (skr. 2008/09:198) has been to discourage gender stereotypical choices in education and professional careers in order to promote a less gender segregated working life, and to encourage men and women alike to start businesses. the prohibition of discrimination and the implementation of active measures to achieve gender equality do not always sit comfortably with each other and when in conflict within the legal system it seems easier to hold to the former than the latter. this is well illustrated in the case in which an ordinance which obliged the use of affirmative action to improve the rate of employment for the under-represented sex among swedish university professors was considered by the european court of justice (c-407/98). the court regarded the ordinance as discriminatory because it judged it to be coercive to the advantage of women; this outcome following the practice elaborated in several previous cases (c-450/93, c-409/95, c-158/97). this tension between radical active measures and conservative passive guarantees of equal treatment operates at both a national and international level, and is a huge challenge to be overcome if gender equality is ever to be obtained. on the surface, sweden lives up to the standards of the convention on the elimination of all forms of discrimination against women (cedaw) articulated in article 2. the anti-discrimination main sub-objectives, along with the obligation for states to include the principle of the equality between the sexes in their constitutions or other legislation, have counterparts in the swedish constitution. however, in contrast to the cedaw, the swedish main constitutional principle, is still formally sex neutral. moreover, in 2002 this principle (incorporated since 1976 in chapter 1 article 2 regeringsformen) was absorbed into a general principle against discrimination on the grounds of sex, colour, national or ethnic origin, language or religious inheritance, disability, sexual orientation, age or any other personal characteristics. the result is that currently the only sex-specific constitutional principle is the prohibition of discrimination against men and women in chapter 2 article 16 regeringsformen, with a linked principle legitimising active measures in order to promote gender equality. the latter is formulated as an exception from the general, formal, principle against the discrimination of women or men (gunnarsson and svensson 2009, 67-68). the committee on the elimination of all forms of discrimination against women expressed its concern about the article 16 principle and called for an inquiry into swedish constitutional law with the commitment to introduce a substantive gender equality principle. the issue also has been discussed in a government report analysing the constitution from a sex/gender perspective (sou 2007:67), which became a section of a comprehensive government report on the constitution (sou 2008:125; prop. 2009/10:80). among several issues, it highlighted the need for an explicit substantive gender equality principle to be included in the constitution, and called for a discussion as to what a constitution built on gender equality would actually mean. unfortunately, the only action taken in response to the 2008 report was to change the language of the constitution to one that is sex neutral. the other questions were not even discussed (sou 2008:125; prop. 2009/10:80). the criticism raised by the committee on the elimination of all forms of discrimination against women may suggest a problem with the swedish constitution, but the absence of an explicit constitutional legal principle of substantive gender equality in accordance with the principle in teu can also be seen as representing a tension between two different legal traditions. these traditions are: the liberal rights tradition focusing on anti-discrimination (visible in the first section of the sex equality act), and the social democratic or communal tradition of the nordic welfare state model, which focuses on structural inequalities (visible in the second section of the sex equality act) (pylkkänen 2007, 2009; svensson 2006). in the context of human rights the emphasis on personal autonomy and self-determination has constructed the notion of discrimination as an obstacle to equal opportunities. however, even though sweden also recognises anti-discrimination as one method for achieving equal opportunities, its tradition of egalitarian social citizenship focuses more on social institutions and structures than on individual rights. in other words, the swedish welfare state model demands equality of outcome rather than equality of opportunity. in the nordic welfare context, equality between men and women has, according to pylkkänen, been understood as a redistribution issue, whereas the 1990s’ shift towards a framework of increasing human rights signifies an emphasis on recognition (pylkkänen 2007). liberal tendencies are growing in importance, partly at the cost of nordic communal ideologies. however, it is also true that cedaw promotes some substantive equality, which opens the way for pro-active positive measures, sanctions and monitoring (pylkkänen 2009, 201-212). the tensions between the two ideologies, the liberal and the communal, are even more obvious in the eu law framework, designed for welfare economies influenced by neo-liberalism (pylkkänen 2009). changes in the nordic arena are related to both the global strengthening of the discourse of human rights and to the membership of the eu with its individual anti-discrimination law. the general gender-equality objective of the european union and the mainstreaming principle (article 8 teu) are adjusted to the objectives of the internal market and constitute a formal approach to equal opportunities for individuals on the labour market (carlson 2007). eu law is implemented in swedish law in a context in which redistributive policies, rather than anti-discrimination regulation, have probably had more effect on gender equality. european union anti-discrimination laws have been incorporated into the discrimination act (sfs 2008:567). originally conceived of as a sex issue in the 1970s, discrimination now covers many more grounds. in total, six forms of discrimination are protected in the 2009 discrimination act, which consolidated seven former acts dealing with discrimination. active measures active measures i.e. regulations with the explicit purpose of promoting gender equality, are known as ‘affirmative action’ in the us, and in a eu context are referred to as ‘preferential treatment’, ‘positive action’ or ‘positive discrimination’ (svensson 2005, gunnarsson and svensson 2009, 63, 76). they are often understood as restricted to a situation where a less or equally qualified individual who belongs to an under-represented or otherwise disadvantaged group is given precedence over another individual who does not belong to this group. in sweden, active measures cover preferential treatment (affirmative action and quotas), as well as parental leave insurance, joint custody, prohibition of purchase of sexual services, gross violations of a woman’s integrity, and quotas. together they demonstrate how the law might be used as a tool to achieve gender equality in areas which are crucial in changing society in accordance with the structural understanding of gender equality as expressed through gender system theory. specific measures can relate to almost all aspects of life, including employment, education, child-care, violence, sexuality, and the division of power in the spheres of politics and business. affirmative action and quotas affirmative action in an eu context means giving priority or advantages to a person in order to change an unequal situation, and so can be used only for as long as the situation is judged to be unequal (lerwall 2001, 342). as such it provides an exception to the general, formal constitutional prohibition of discrimination. already under the sex equality act of 1980 provisions on affirmative action allowed employers to choose a person of the less represented sex with equal or almost equal merits over a person of the over-represented sex. this was seen as an objective criterion provided that it was in line with the overarching plan to achieve gender equality in the workplace (bondestam 1999, gunnarsson and svensson 2009, 81). over the last few years affirmative action has been widely criticised in relation to employment contracts as well as in regards to educational admissions procedures, both in eu and in sweden. its use in employment contracts based on former swedish legislation in the 1990s was restricted through the decision of the european court of justice, as mentioned previously (c-407/98). the aim of the progressive legislation in question was to increase the percentage of female professors in the universities, though just one professor (out of 31) was appointed with the help of affirmative action (jordansson 1999). even though the ecj established the legality of the possibility of using affirmative action, it rejected the obligation to do so. in the eu as well as in sweden there is a seeming reluctance to use this means (gunnarsson and svensson 2009, 198). in the swedish context, quotas for equal representation in institutions, such as corporate boards and public authorities, have mostly been used in political rhetoric and not as a legislative measure. the political parties have been very keen to propose (almost) as many women as men for election, and the level of representation of women in swedish politics is high compared to other countries. in other areas, it has been more controversial. for example, quotas have been used in the education system, but the possibility of using quotas or affirmative action in the admissions process for higher education has been closed since 1st of august 2010. the most controversial issue today however, is the use of quotas in the context of the gender composition of corporate boards. norway has enacted such legislation, but sweden has not. a proposition to this effect was put forward in 2006 but it was not processed further (ds 2006:11). however, the issue is still being debated. individualisation of parental leave insurance equal sharing of parental responsibility was one of the four sub-objectives of gender equality policy. parental leave insurance gives both parents the same legal right to paid parental leave. when the sex neutral reform was introduced in the 1970s, the goal was to improve gender equality, based on the belief that both parents should wish to combine work and care of small children. furthermore, the ideology of self-supporting individuals and benefits tied to earned income also requires parents to work (sou 1947:46). this conception of parents as free agents, equal both in regards to the obligation to contribute support, care and money to the family and in regards their activity in the labour market turned out to be at odds with reality. women have been claiming the right to parental leave much more often than men (temanord 2010:595). so in order to encourage fathers to take more responsibility for the care of their small children a new regulation was introduced in 1995. this reform gave, in a sex neutral fashion, mothers and fathers 30 days each of parental leave, which could not be transferred to the other parent. by increasing fathers’ responsibilities for caring for their children, the reform was expected to reduce the “family obstacles” to women’s participation in the labour market, whilst measures to increase father’s involvement in the upbringing and care of their children were declared to be a state responsibility (prop. 1993/94:147, 17 and 66-70). furthermore, since 2002 the number of non-transferable parental leave days for each parent has been increased to 60 (prop. 2001/02:44). this individualisation has resulted in men taking up a greater part of the total amount, however not much more than the non-transferable part. men took 12.4 % of the total parental leave days in 2000, and 22.3 % of the days in 2009 (official statistics from försäkringskassan, 2009). joint custody even if fathers take more part in the care of children today than they have previously, women still bear the major responsibility. yet, despite this fact, the recognition of shared legal responsibility in the form of joint custody is considered a matter of course. joint custody of a child in the circumstance of parental separation was introduced as the main rule in 1998, even if one of the parents objected. the explicit reason is that it is in the best interest of the child, but some argue that it is rather in the interest of the parent who does not live with the child, who most often is the father. there is therefore a tension between the gender equality ideology, according to which the parents are supposed to share responsibility for the child, and the actual reality according to which children live with their mothers more than with their fathers. the official statistics from 2010 record single mothers as living with their children at least as twice as often as single fathers; and the more children, the bigger this difference (official statistics, www.scb.se). in addition, the wish to promote the father’s concern and responsibility for the children in line with gender equality policy has sometimes resulted in children being forced to live with their fathers, regardless of whether they have been or continue to be violent towards them and/or the mother. this tendency of the courts to grant joint custody in cases where it was not obviously in the best interests of the child led to a change in the parents act in 2006, whereby the parents’ willingness to cooperate was supposed to be considered and it became possible not to grant joint custody. the child’s right to access to the parent not living with her/him, legally formulated as a right for the parent not living with the child, was also made conditional at the same time (gunnarsson and svensson 2009, 86-89). prohibition of purchase of sexual services the purchasing of sexual services does not occur as frequently in sweden as in many other countries in the world. according to the preparatory works for the prohibition of the purchase of sexual services, this is due to several factors, notably the general welfare system, the progressive gender equality policy, and social measures directed at the sex market (prop. 1997/98:55, 100-104). the criminalisation of the purchaser of sexual services was unique to sweden in 1999, and comprised a truly representative reform for the swedish model. the underlying aim of the legislation was normative, namely that is should be socially unacceptable to buy sex, so that prohibiting such purchases would lead to the elimination, or at least, a significant reduction, in prostitution. with prostitution defined as an expression of an unequal relationship between men and women, as åsa yttergren (in this collection) shows, the reasoning was influenced both by gender equality and welfare policies. furthermore, this reform in sweden had an influence over the debate in the other nordic countries, with reforms criminalising the purchaser being subsequently enacted in finland in 2006, and in norway and iceland in 2009 (gunnarsson and svensson 2009, 83). the effects of the legislation from 1999-2008 were evaluated in 2010 (sou 2010:49) and it was found to have had effects in line with its purpose. gross violations of a woman’s integrity in sweden the self-supporting ‘ideology’ embodied in the workfare model has been important for the independence of women, even if the question of male partner violence became an issue relatively late on. with several research projects in the 1980s having revealed the special character of violence within relationships, a government report was commissioned, which resulted in the enacting of a new crime, gross violations of a woman’s integrity, in 1999. the crime is radical in two ways. first, the focus is not on separate, detached actions, but on the process, which in gender violence research is called the ‘process of normalisation of violence’. second, the crime is sex specific and so quite unusual and, not surprisingly, this was widely questioned (gunnarsson and svensson 2009, 84). since the mid-1980s several attempts had been made to adjust the crime of assault to better fit the pattern of male partner violence. yet the judiciary system seems to have been reluctant to pursue these changes. social policies and welfare-state structures in nordic states have supported women’s efforts to gain control over their physical well-being and have enabled some women to leave violent partners (niemi-kiesiläinen 2001). however, violence against women and children has not been defined as an important integrity issue in the swedish welfare discourse. it has been suggested that this ‘hiding’ of the integrity aspect might be a result of a collectivism that manages rather well to promote wide overall distribution of resources, but lacks the ability to acknowledge and deal with social differences such as gender, age and ethnicity (pringle 2007). the nordic welfare state has also been described on the one hand as promoting women´s rights as workers and mothers, while on the other hand being slow to react to rights and violations that concern women’s human dignity and personal and bodily integrity (elman 1996; lister 2009; pylkkänen 2009). reflections on recent measures and tendencies gender-equality policies have been criticised in recent years for being inefficient and not radical enough. with some areas of society not even close to achieving gender equality, the main tool employed to this end, the gender mainstreaming strategy, has been condemned as inadequate. the latest government report on gender equality policies up to 2005 described this policy field to be highly ambitious but poorly implemented (sou 2005:66). the stereotypes persisting in the education system, ongoing wage discrimination, men’s violence against women, and the situation of single mothers, were all highlighted as being of special concern. this situation was confirmed in an evaluation of the 2010 budget by the non-government organisation sveriges kvinnolobby (swedish women’s lobby group, 2010). despite economic instruments designed to enforce gender equality policies being introduced the results were found to be unimpressive. the main criticism was that the focus had been on temporary and often small projects and not on the long-term structural conditions capable of changing the balance of power in society. what is more, the projects had been mainly directed at girls and women, and as such have implicitly posited these groups as the locus of the problem. in reflecting upon the swedish welfare state’s goals for gender policy, we can observe that in 2011 they continue to be based on the objective formulated in the 1990s, namely that women and men should have the same power to form society and direct their own lives. yet it can also be said that when it comes to the specific measures taken by the government, the question of shared power has in many ways been transformed into individual behaviour, attitudes and preferences. so although the primary objective remains, the four sub-objectives, those concerning active citizenship, economic independence, domestic and care work, and men’s violence against women, have been changed to be less proactive our second reflection concerns the legal changes in discrimination law. it seems to us that there is a risk that gender equality will disappear in the process of being mainstreamed. the new discrimination act for instance, gathers together all grounds for discrimination, and some might say that this is an example of gender mainstreaming. however, because here sex is just one ground for discrimination, one clearly separated from the others, it is in danger of becoming less important when the other grounds are focused on, and thereby potentially side-lined rather than mainstreamed. gathering the different grounds for discrimination under one act could offer a good opportunity to deal with the question of intersectionality. yet, this issue was not discussed in the preparatory works for the discrimination act, even though it was suggested by another government commission dealing with structural discrimination of ethnicity and religion (sou 2006:22, 138). the main purpose of gathering all grounds under one discrimination act was to achieve the same protection and the same active measures for all forms of discrimination. the way to equalize across these grounds with the greatest positive impact was to bring the protection and active measures in line with whichever was the most comprehensive. however, in this process there was some reduction of the ambition to promote gender equality through active measures. for example, the obligation for employers with more than 10 employees to make an annual plan for systematic, goal-oriented gender mainstreaming work at the workplace, which includes a wage survey to facilitate planning for non-discriminatory wages, has, since 2009, been reduced to once every three years and is now only applicable for employers with more than 25 employees (13 §). yet one reason for this relaxation given by the minister for gender equality was the widespread failure of employers to meet the previous obligations. somewhat ironically, although the measures have been watered down, a 2010 government report about active measures for working life and education (sou 2010:7) stated that they should be retained and even strengthened, despite it being difficult to find evidence of positive effects. a third reflection concerns the general reluctance to take legal measures in relation to the unequal distribution of power and influence, whether this be political power or power in the market. the global gender gap index, published by the world economic forum since 2006, revealed that sweden had gradually slipped from the top position it held in 2006 and 2007 to be ranked 4th by 2011. it is actually the political empowerment factor which is responsible for sweden’s high ranking; the rate at which women rise to enterprise leadership is rather less impressive. among the seven highest ranked countries in total, sweden is the second worst when it comes to the rate at which women rise to enterprise leadership (after south africa). and despite intense debate about this issue the government continues to understand the problem as one to be solved by ‘begging’ enterprises to act differently. similarly, the governmental report regarding gender composition of corporate boards (ds 2006:11), which proposed a legal regulation such as the quota system adopted in 2003 in norway (teigen 2011), was rejected despite the fact that the changes in norway following the new regulation have been described as remarkable (world economic forum 2010, 5 and 118). our fourth point is that although there appears to have been a growing focus on gender equality at work in recent years, a closer look reveals the measures taken in practice to have been rather modest. the earlier engagement with structural discriminatory practices has been largely replaced by individual choices and strategies aimed at promoting a less gender-divided working life (skr. 2008/09:198). this individual focus also prevailed in the 1970s, but was left to one side at the beginning of the 1990s when gender system theory was adopted as the basis for gender-equality policies (prop. 1993/94:147). now once again, girls and boys, women and men, are being discouraged from making gender stereotypical choices regarding their own education and their professional trajectories. similarly, this individual focus can be seen in a reform enforced in 2007, where a tax credit for the purchase of so-called household-related services was partly aimed at facilitating women’s participation in paid work (prop. 2009/10:1, appendix 5). the reform was not driven by a political ambition for structural change, i.e. by making men take a greater responsibility for the unpaid work, but rather, was more about a normative shift designed to help individual women achieve a good work-life balance. the fifth example concerns parental leave, which could perhaps provide a powerful means for changing the uneven distribution of care work between the parents. however, this is highly controversial, for any suggestion to individualise parental leave is understood by many to be a violation of the free will of the families to decide what is best for them. and even the rhetoric surrounding the existing scheme is interesting in its representation. thus, the two months that cannot be transferred from one parent to the other were called ‘father’s months’ when the change was introduced, despite the law itself being sex neutral. the fact is that the term ‘father’s months’ is actually quite accurate, for fathers tend to take ‘their’ two months and the mothers, the rest. this suggests that the only way to effectively address the unequal division of care-work would be to increase the father’s contribution by making more months non-transferable. although fathers do not seem to be keen to share childcare, when it comes to the issue of custody, a contrasting picture emerges. since 1998 shared custody has been the main rule in most cases after a separation, and seems to include the idea that the child is supposed to live with both parents, or at least stay with them as equally as possible. the situation existing before a separation is very often deemed to be of no relevance to the decision. fathers’ groups have successfully influenced the legislation process in order to be able to share formal custody of the children after a separation. so the question of sharing practical custody or care during the relationship is obviously not as important or relevant, either in the political debate or in the law reform. and in the application of the law, the norm of shared access is so strong that the situation before the separation is not recognised except in exceptional cases. considering the data lena wennberg presents in her article in this collection, which points out that most single parents with the everyday responsibility for the children are mothers, one can see how the political discourse renders mothers’ care work invisible and of no legal relevance. our final observation concerns men’s violence against women, and prostitution. this is probably the gender equality policy issue that has been most on the agenda in recent years. according to the swedish national council for crime prevention the political ambitions are high when it comes to putting an end to men’s violence against women (brå nr 4/2010). as well as the action plan for eliminating men’s violence (skr. 2007/08:39), there has also been the action plan for eliminating prostitution and trafficking for sexual purposes (skr. 2007/08:167), with the latter having a very distinct focus on individuals involved in prostitution and trafficking. the demand for prostitution and trafficking for sexual purposes is mentioned in one sentence, and even though it is recognised as the main reason for both (skr. 2007/08:167, 8), the measures in the action plan focus solely on the protection and support of the vulnerable individual (skr. 2007/08:167, 1). clearly, this approach contradicts the preceding policies directed at the criminalisation of the purchase of sexual services, where a strong policy was expected to severely reduce demand as an important progression for both the individual and the society. here, swedish policy discourses differ from the standpoints of both radical and liberal feminism. jenny westerstrand has described the swedish position as a contextual approach (westerstrand 2008), where the question of free will and the distinction between forced prostitution and non-forced prostitution have no relevance to the criminalisation of the purchase. instead, the focus is on the demand and the view that it is unacceptable to both society and individuals that men can buy sexual services from women and children (westerstrand 2008; sou 2010:49, 59). in an international setting, the contextual approach seems to be made invisible in favour of the dichotomy between the radical ‘victim-focused’ approach and the liberal ‘sex-worker’ approach. the ‘sex-worker’ approach, represented in the un by the special rapporteur radhika coomaraswamy, distinguishes between forced prostitution and sex work. in the swedish context, there is no such distinction because the contextual approach focuses on the demand and the buyer and not on whether or not the ‘seller’ is forced. the swedish legislation has been widely questioned, but the recent evaluation of the law found that it does have an effect on reducing the level of demand (sou 2010:49). we also find it interesting to notice that some recent measures and tendencies in eu, such as focus on the need for women to work outside the home and the need for childcare, are political questions that were raised in sweden years ago. today, considerable attention is paid to women’s relatively poor health, the possible connection between this and the double work burden they still bear, and the decreasing quality of childcare in groups that are growing significantly in size. yet there remains a powerful desire amongst many young women to enter motherhood and create the ‘perfect home’. the question therefore arises as to whether these concerns can be best addressed through legal regulations that aim to achieve gender equality based on individual responsibility. gender stereotypes are discussed in different contexts. sometimes they are based directly on article 5 in cedaw, according to which all states parties shall take all appropriate measures to modify the social and cultural patterns of the conduct of men and women, and do so with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. gender stereotypes in advertising have been raised in sweden since the 1970s. however it remains a controversial issue. several law reforms have been proposed, the latest in 2008 (sou 2008:5), but none has been adopted. at the outset we mentioned the self-image of the swedish state as “a good and equality producing state”. unfortunately this self-image has been partially eroded in recent years, whilst several areas of society, such as private corporate boards, remain devoid of gender equality norms. what is worse, to obtain full access to gender equality one has to fit into the standards of workfare, 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(report from inland revenue about whether simplifications of tax regulations would increase gender equality). skr. 2007/08:39 action plan for combating men's violence against women, violence and oppression in the name of honour and violence in same-sex relationships. skr. 2007/08:167 action plan for combating prostitution and trafficking for sexual purposes. skr. 2008/09:198 action plan for a gender equal working life. skr. 2011/12:3 jämställdhetspolitikens inriktning (direction for gender equality policy). sou 1947:46 betänkande angående familjeliv och hemarbete. avgiven av utredningen för hemoch familjefrågor (government commission on family life and domestic work). sou 1990:44 demokrati och makt i sverige (democracy and power in sweden). sou 2000:83 two of a kind? (report from the government commission on the balance sheet for welfare of the 1990s). sou 2005:66 makt att forma samhället och sitt eget liv – jämställdhetspolitiken mot nya mål. slutbetänkande från jämställdhetspolitiska utredningen (government commission on gender equality). sou 2006:22 en sammanhållen diskrimineringslagstiftning. slutbetänkande av diskrimineringskommittén (report from the government commission on discrimination law). sou 2007:67 regeringsformen ur ett könsperspektiv (an analysis of the constitution out of a sex/gender perspective?). sou 2008:5 könsdiskriminerande reklam – kränkande utformning av kommersiella meddelanden. slutbetänkande från utredningen om könsdiskriminerande reklam (the government commission on sex discrimination in commercial advertising). sou 2008:125 en reformerad grundlag (a reformed constitution). sou 2010:7 utredningen om aktiva åtgärder inom diskrimineringsområden (government report on active measures in the areas of discrimination). sou 2010:49 förbud mot köp av sexuell tjänst. en utvärdering 1999-2008 (prohibition of the purchase of sexual services – an inquiry 1999-2008). * professor of law, gothenburg university, sweden. � hyperlink "mailto:eva-maria.svensson@law.gu.se" �eva-maria.svensson@law.gu.se� ** professor of law, umeå university, sweden. � hyperlink "mailto:asa.gunnarsson@jus.umu.se" �asa.gunnarsson@jus.umu.se� � 15§ kommittéförordningen (sfs 1998:1474). � 14§ förordning (sfs 2001:100) om den officiella statistiken. � ds 2001:64 and pm 2005-06-20 näringsdepartementet. � http://www2.ohchr.org/english/bodies/cedaw/docs/co/cedaw.c.swe.co.7.pdf � teu (official journal c 115 of 9 may 2008) and the “recast directive” 2006/54/ec. � higher education ordinance sfs 1993:100 chapter 7 section 12. � the main competitors are the other nordic countries and together they hold the 4 top positions (in 2011 iceland, finland, norway, sweden with denmark as the 7th. new zeeland and south africa are ranked between sweden and denmark. � this factor is not included in the overall ranking but is an additional factor. __________________________________________________________ 26 __________________________________________________________ 1 untitled document feminists@law, vol 8, no 1 (2018) the sexual contract in paid care work: evidence from the prosecution of care workers for failures to care lydia hayes* this is a video of a paper given at the sexual contract: 30 years on conference held in the school of law and politics, cardiff university on 10-11 may 2018. this paper was part of panel 2: the employment contract, chaired by sarah keenan. the powerpoint slides accompanying the paper are available as a separate file. the contemporary meaning of paid care work is best understood through a recognition that the contract of employment is only part of the story since it relies on a coexisting sexual contract. the sexual contract in paid care work is brought sharply into focus by the framing of criminal law. in this paper, i explore the criminalisation of care workers in relation to elder abuse. when handing down custodial sentences, judges narrate the gap between offending conduct and social expectations of the behaviour of care workers towards the people for whom they are employed to care. the legal capacity to prosecute depends upon the existence of a contract of employment yet the duties and obligations existing between the care worker and her employer are curiously absent from judicial narratives. the capacity to prosecute individual care workers for ill-treatment and wilful neglect provides powerful insights about the social meaning of paid care work. it reveals that in the shadows of the contract of employment lies a suite of private sphere obligations which the care worker owes to care recipients, and to society at large, as a consequence of her employment. this is the sexual contract in paid care work. women who are employed to care are liable for prosecution as workers, yet they are judged as women. the root of their offence is an individual failure to exhibit caring behaviour and having a ‘couldn’t-care-a-less’ attitude. reports of elder abuse by paid care workers have risen, in concert with the uk’s rampant privatisation of social care provision and increased public concern. neglect, meaning the failure to provide care as and when it is needed, is the most frequent form of abuse in which care workers are implicated. the scientific evidence from research in care-settings is that poor quality employment relationships create conditions in which abuse occurs. the scale and nature of the uk’s elder abuse problem suggests systemic causes. however, the criminalisation agenda in the uk care sector has been recently expanded by new provisions which widen the scope for individual prosecutions in the shadow of the contract of employment. drawing on pateman, the paper identifies how the sexual contract serves as a form of discipline in paid care work and suggests that the state draws upon the subjection of women to legitimate its criminalisation strategy.   * lecturer in law, school of law and politics, cardiff university, wales. email: hayesl@cardiff.ac.uk untitled document feminists@law, vol 8, no 1 (2018) the absence of the ‘surrogacy contract’ from judicial constructions of surrogacy alan brown* this is a video of a paper given at the sexual contract: 30 years on conference held in the school of law and politics, cardiff university on 10-11 may 2018. this paper was part of panel 4: the new surrogate mother contract, chaired by julie mccandless. the powerpoint slides accompanying the paper are available as a separate file. this paper explores the absence of the ‘surrogacy contract’ from recent judicial decisions on surrogacy. in the sexual contract pateman argued that, ‘[o]nly masculine beings are endowed with the attributes and capacities necessary to enter into contracts’ and therefore that the sexual contract was ignored in the establishment of patriarchal norms. the central principles of the regulation of surrogacy in the uk are set out in the surrogacy arrangements act 1985; s.1a states that surrogacy arrangements are unenforceable and s.2 prohibits commercial surrogacy. this paper argues that one of the consequences of these principles has been an absence of consideration of the underlying ‘surrogacy contract’ in judicial decisions concerning ‘parental orders’: the post birth order that transfers legal parenthood from the surrogate to the intended parent, set out in s.54 of the human fertilisation and embryology act 2008. instead, other interests have been focused upon within judicial language, particularly the ‘best interests of the child’ and a related emphasis on reflecting the ‘status’ and ‘identity’ of the child(ren). moreover, this language is reflected within the wider ‘reform’ agenda regarding the regulation of surrogacy. this conceptual approach obscures the contract between the parties which is at the heart of any surrogacy arrangement. thus, this paper argues that this absence of contemporary consideration of the contractual nature of surrogacy arrangements reflects the disregarding of the sexual contract that pateman identified 30 years ago.   * lecturer in law, abertay university, dundee, uk. email: a.brown@abertay.ac.uk    heidi härkönen special section: re-imagining the margins of kinship _______________________________________________________________________________________ feminists@law vol 11, no 2 (2023) _______________________________________________________________________________________ special section: re-imagining the margins of kinship heidi härkönen[footnoteref:1]* [1: * post-doctoral researcher, university of helsinki, finland. email heidi.harkonen@helsinki.fi ] introduction to the special section marginality is often discussed in terms of law, criminality and poverty. this special section expands the discussion on marginality and the margins into the sphere of what are often our most intimate relationships: kinship. while kinship is often approached through its positive, affectionate aspects, such as ‘mutuality of being’ (sahlins 2011), this special section draws attention to the dark side of kinship (cf. lambek 2011; das 1995), its ‘hierarchies and exclusions’ (carsten 2013: 230) by focusing on its margins. we understand kinship as characterised not only by relationships commonly understood as biogenetic relatedness, but also including a wide array of other relationships, such as those created through committed everyday care (borneman 1997), choice (weston 1997), and other forms of ‘kinning’ (howell 2003). although kinship is traditionally seen to belong to the private and the domestic realm, feminist authors have for a long time shown that it is crucially intertwined with questions of power, politics, law and inequality (e.g. rubin 1975; strathern 2005; mckinnon & cannell 2013; thelen & alber 2017). therefore, as political, legal, economic and sociocultural norms and possibilities shape individuals’ experiences of kinship, the forms of support, exclusion or discrimination taking place in kin relations offer an intimate perspective on marginality. while marginality is often approached as a state of weakness, several authors have shown how the margins can grant persons particular perspectives and forms of agency and power that allow them to resist and challenge their exclusion (butler 2015; das & randeria 2015; das & walton 2015; rao 2015; scott 1985, 1992; tsing 1993). most importantly, marginality can be understood as an ambiguous state: on the one hand as something forgotten and discriminated against, but on the other, as crucial for ‘the centre’ to define its identity (green 2005: 10, 218-219; tsing 1993, 1994). therefore, marginality is not always shaped by a straight-out rejection, but may be characterised by more subtle forms of social disregard. who, then, can be understood as being at the margins of kinship? frequently, those who do not conform to normative understandings of gender and sexuality become ‘exiles from kinship’ (weston 1997). lgbtiq+ and gender non-conforming persons often face forms of discrimination and exclusion from their family and kin relations in various parts of the world (e.g. zengin 2019; shirinian 2018). however, persons who may be excluded or rejected by their biogenetic, native family, may find forms of kinship and support through other kinds of relationships (e.g. weston 1997; sorainen 2020; mizielińska & stasińska 2014, 2019). nevertheless, in some places such as contemporary russia, where two of the articles in this special section are situated, such marginalisation from kin relations is accompanied by imprints of criminality and lawlessness, highlighting the legally and politically as well as socially precarious position of those at the margins of kinship. however, in other places such as contemporary cuba, which the final article in this section discusses, the official legal and political climate is relatively supportive of sexual and gender diversity, but sociocultural understandings are still discriminatory, pushing some people to the margins of kinship. elsewhere, such as in finland (the focus of the first article in this section), the legal, political, and social climate are considerably accepting of sexual and gender diversity, yet there are still obstacles in the way of full gender and sexual equality. by exploring how the margins of kinship take shape in diverse historical and sociocultural contexts, these articles compare and contrast varied processes of marginalisation and their complex social consequences. this special section consists of four articles which were created over a four-year research project ‘corekin: contrasting and re-imagining the margins of kinship’ (2016-2020, grant number 297957) funded by the academy of finland and led by dr antu sorainen. the articles all discuss a particular aspect of being at the margins of kinship by drawing on original empirical research material. the first article, ‘(re)defining legal parenthood and kinship: the limits of legal change in the finnish child custody act of 2019’ by anna moring, examines the changes in legal understandings of kinship, parenthood and family in the process of redrafting the act on child custody and right of access in finland. through an analysis of legal discourses, it argues that finland took on an internationally leading role in separating the parent’s right of access from custody, biology and legal parenthood. this change created a shift from a biogenetically understood notion of kinship towards a more flexible, individualised notion. however, while redefining some older forms of marginality, this process simultaneously left some forms of structural exclusion unattended, therefore displaying the complexly ambiguous character of marginality. the second article, ‘babushkas between lesbian-headed families and the russian state: making an intelligible model of extended mothering’ by alisa zhabenko, shifts the discussion to finland’s neighbouring russia, where lgbtiq+ identified persons are in a particularly difficult situation in the midst of authoritarian state regulations. drawing on various forms of empirical research data, this article focuses on the details of the kin relations of a group of russian lesbian women and, in particular, the centrally important character of the grandmother, the babushka. the article shows how, as a traditional element of russian extended understandings of kinship, grandmothers come to form a protective ‘shield’ between the lgbtiq+ hostile state and lesbian couples with children, by creating the illusion of a widely socially accepted family model. the article displays how biogenetic understandings of kinship are highlighted in lesbian families through the central position of the birth-giving mother’s maternal grandmother, and relates this to the particularities of russia’s legal, political and social context that is exceptionally hostile towards lgbtiq+ relations. this way, although discourses on lgbtiq+ kinship often highlight their ‘chosen’ character (weston 1997), in some contexts, biological understandings are emphasised. the third article, ‘“thank god, i have a separate dwelling”: restructuring kinship through grandmaternal sidelining in the heterosexual families of russian natural-parenting mothers’ by anna avdeeva also focuses on grandmothers in russian kin relations. however, this article examines self-identified russian followers of ideas of ‘natural parenting’, whose understandings of kinship prioritise the relationship between a mother and a child in the context of a heterosexual nuclear family. they reject the child’s other relations, such as grandmothers, as a potentially harmful influence on the child. therefore, this new understanding of kinship contests a more ingrained idea of russian kin relations, whereby grandmothers have traditionally played a central role, contributing to the increasing nuclearisation of russian kin relations and marginalising grandmothers in a new way. however, the article shows that only privileged and economically stable individuals are able to reject the support of their wider kin members and redefine the margins of kinship as a question of personal preference. the last article in the collection, ‘marginalisations and redefinitions of kinship in contemporary cuba’ by heidi härkönen, explores shifts in understandings of kinship and experiences of marginality amongst low-income cubans. this article draws on long-term ethnographic research amongst a community of poor havana residents to show how, in the context of the large-scale political, economic, legal and social developments that have been taking place in cuba since the 1990s, structural shifts may create unexpected forms of social marginalisation. resonating with the two previous articles with their focus on russian grandmothers, this article concentrates on the experiences of an elderly mother and grandmother, who should be at the centre of local kin relations in terms of traditional understandings of caribbean, mother-centred kinship. however, in the contemporary context shaped by poverty, crime, new ideas of sexuality and novel privileges of money, she comes to face marginalisation because of the actions and identities of her kin, but also to find new sources of support at the margins. the article argues that marginality in this case does not create a form of political or social resistance, as many authors have suggested, but is ambiguous and shifting in the context of structural changes. as a whole, this special section makes an opening towards re-imaging the margins of kinship in several ways. it shows that we need to expand our understandings of marginality from the usual discussions of crime, poverty and sexual and gender non-conformity, towards more varied forms of marginality that may emerge in the intimate context of kinship and other particularly close relationships. it highlights how studies of kinship need to pay attention to not only those at the centre of kin relations, but also to those who may find themselves at its margins, and the socially, legally, politically and economically complex consequences that such marginality may create. it demonstrates that political, legal and other structural developments may create shifts in understandings of both marginality and kinship, redefining some older forms of exclusion, but also shaping some new blind spots for state policies, legislation and everyday sociality. it displays the contextually varied complexity of understandings of biogenetic and other, alternative ideas in defining kinship and its margins, and their multiple consequences for individuals’ lives in terms of identity, subjectivity, relatedness and day-to-day practicalities of care. finally, this special section contributes to feminist discussions of law by drawing attention to the multiple ways in which law as an abstract system may create complex and contextually varying intimate social consequences for individual experiences of kinship, and how, only rarely, the daily practicalities of kinship may become reflected in legal processes. references borneman, john. 1997. caring and being cared for: displacing marriage, kinship, gender and sexuality. international social science journal 49 (154): 573-584. butler, judith. 2015. notes toward a performative theory of assembly. cambridge, ma: harvard university press. carsten, janet. 2013. what kinship does—and how. hau: journal of ethnographic theory 8 (2): 245-251. das, veena. 1995. national honour and practical kinship: unwanted women and children. in faye d ginsburg and rayna rapp (eds.) conceiving the new world order: the global politics of reproduction. berkeley: university of california press, 212-233. das, veena and shahalini randeria. 2015. politics of the urban poor: aesthetics, ethics, volatility, precarity. current anthropology 56 (s11): s3-s14. das, veena and michael walton. 2015. political leadership and the urban poor: local histories. current anthropology 56 (s11): s44-s54. green, sarah f. 2005. notes from the balkans: locating marginality and ambiguity on the greek-albanian border. princeton: princeton university press. howell, signe. 2003. kinning: the creation of life trajectories in transnational adoptive families. the journal of the royal anthropological institute 9 (3): 465-484. lambek, michael. 2011. kinship as gift and theft: acts of succession in mayotte and ancient israel. american ethnologist 38 (1): 2-16. mckinnon, susan and fenella cannell (eds.) 2013. vital relations. modernity and the persistent life of kinship. santa fe: school for advanced research press. mizielińska, joanna and agata stasińska. 2014. personal strategies of overcoming legal obstacles: ‘families of choice in poland’ (2013-2015). in carlo casonato and alexander schuster (eds.) rights on the move – rainbow families in europe, conference proceedings. trento: university of trento. mizielińska, joanna and agata stasińska. 2019. negotiations between possibilities and reality: reproductive choices of families of choice in poland. european journal of women’s studies 1-16. online: doi 10.1177/1350506819887765. rao, nitya. 2015. marriage, violence, and choice: understanding dalit women’s agency in rural tamil nadu. gender & society 29 (3): 410-433. rubin, gayle. 1975. the traffic in women: notes on the 'political economy' of sex. in rayna r reiter (ed.) toward an anthropology of women. new york: monthly review press, 157-210.  sahlins, marshall. 2011. what kinship is (part one). journal of the royal anthropological institute 17 (1): 2-19. scott, james. 1985. weapons of the weak: everyday forms of peasant resistance. new haven: yale university press. scott, james. 1992. domination and the arts of resistance: hidden transcripts. new haven: yale university press. shirinian, tamar. 2018. the nation-family: intimate encounters and genealogical perversion in armenia. american ethnologist 45 (1): 48-59. sorainen, antu 2020. gay back alley tolstoys and inheritance perspectives: re-imagining kinship in queer margins. in paul boyce, ej gonzalez-polledo and silvia posocco (eds.) queering knowledge: analytics, devices and investments after marilyn strathern. london: routledge, 55-72. strathern, marilyn. 2005. kinship, law and the unexpected: relatives are always a surprise. cambridge: cambridge university press. thelen, tatjana and erdmute alber (eds.) 2017. reconnecting state and kinship. philadelphia: university of pennsylvania press. tsing, anna lowenhaupt. 1994. from the margins. cultural anthropology 9 (3): 279-297. tsing, anna lowenhaupt. 1993. in the realm of the diamond queen. princeton: princeton university press. weston, kath. 1997. families we choose: lesbians, gays, kinship. boston: beacon press. zengin, asli. 2019. the afterlife of gender: sovereignty, intimacy and muslim funerals of transgender people in turkey. cultural anthropology 34 (1): 78-102. _______________________________________________________________________________________ 2 _______________________________________________________________________________________ 1 sarah lamble reflections on disability, justice and abolition __________________________________________________________________________________ feminists@law vol 12, no 1 (2023) __________________________________________________________________________________ reflections on disability, justice and abolition sarah lamble[footnoteref:1]* [1: *birkbeck, university of london, uk, s.lamble@bbk.ac.uk ] abstract this piece offers reflections on liat ben-moshe’s recent book decarcerating disability: deinstitutionalization and prison abolition and linda steele’s recent book disability, criminal justice and law: reconsidering court diversion and their contributions to abolitionist work, disability justice and decarceration.  i want to begin by saying thank you to both liat ben-moshe and linda steele for their wonderful and much needed books. their work has shaped my own thinking in important ways  particularly in deepening my analysis around the intersections of disability justice and prison abolition and i've learnt so much from them both.  in this short reflection, i want to say a few words about each of the books and connect them to wider discussions around current abolition politics. following the widely publicised deaths of george floyd, breonna taylor, tony mcdade and others at the hands of police, the year 2020 brought campaigns for police and prison abolition struggles to greater focus in the usa, britain and around the globe. abolitionist ideas, previously seen by many as fringe politics on the one hand or obscure academic theory on the other, entered more mainstream discussions and platforms. campaigns to defund the police, led by black lives matter organisers, including queer, feminist and disability justice activists brought abolitionist demands into public view on a wide scale (defund the police 2021; byp100 2019; black lives matter uk 2021, abolition and disability justice coalition 2020).  numerous articles were published in the mainstream press explicitly discussing abolition in sympathetic ways (eg. duffy rice 2020; taylor 2021; berlatsky 2021), and long-time abolitionist organisers like mariame kaba and ruth wilson gilmore were profiled in places like the new york times – with kaba’s writing published under the headline, ‘yes we mean literally abolish the police’ (kaba 2020; kushner 2019). in britain there were protests up and down the country to support black lives matter and also subsequently to oppose the draconian 2021 police, crime, sentencing and courts bill – with many of these demonstrations explicitly framed as abolitionist (kemp & duff 2020; brown 2022). though seemingly new to much of the public, the growing prominence of abolitionist demands had been made possible because of decades of grassroots organising and strategising, particularly by black-led, queer, indigenous and disability justice groups, who have laid the groundwork for greater public engagement with abolitionist ideas and practices (davis, dent, meiners and richie 2022; russell and stewart 2001; critical resistance 2008; abolitionist futures 2019; the red nation 2021). yet the histories of this organising – and the important legacies of abolitionist thought that have shaped the current moment – are often less well known. within this wider context, it is an apt time to be discussing ben-moshe and steele’s books as they both speak to important questions of resistance and strategy in challenging institutions of carceral control and violence. both scholars urge us to consider how discipline and control of disability and madness, and their intersections with race, gender and colonialism, are central features of carceral institutions whether prisons, psychiatric hospitals, forced residential institutions for people with intellectual disabilities, or court diversion programmes.  both books confront the ways that carceral logics, knowledges and practices are bound up with processes of debilitation and disablement, and expose how deployments of carceral power extend well beyond the confines of the prison walls themselves. for example, as steele demonstrates, even seemingly well-meaning efforts to create alternatives to prison, such as court diversion schemes for disabled people, can simply extend the power of the prison by bringing carceral controls into communities.  in highlighting these connections, ben-moshe and steele’s books offer us vital insights for grappling with strategic questions around working towards more effective means of decarceration and disability justice. ben-moshe’s book, decarcarating disability (2020), foregrounds lessons we can learn from historical campaigns around the deinstitutionalisation of disabled people as part of wider anti-carceral social movements and struggles for abolition.  the book powerfully explores the tensions and challenges between reformist and abolition strategies – and the difficulty of navigating these tensions in practice. in doing so, ben-moshe’s analysis invites us to reflect on contemporary struggles and pose critical questions about whether particular tactics and ‘common sense’ ideas around disability and imprisonment will move us towards a more abolitionist horizon or whether they are likely to fall prey to dead-end reformist traps. as her careful documentation of struggles for deinstitutionalisation reveals, the answers to such questions are rarely straightforward.  ben-moshe’s book considers these strategic dilemmas with nuance, depth and care, but without sacrificing the radicality of her broader vision, something which is especially needed in the current moment as abolitionist ideas become more mainstream. for example, by using an abolitionist frame to trace the deinstitutionalisation movement of the 1960s and 70s – which fought to shut down horrifically abusive psychiatric hospitals and residential institutions for people with psychiatric and intellectual disabilities – ben-moshe interweaves careful analysis of the key gains of that movement alongside incisive evaluation of the fraughtness of those struggles and their ongoing challenges today.  here ben-moshe provides an important ‘cautionary tale of success’ (2020, p 4) which offers vital lessons for contemporary activists seeking to further decarceration goals. she also confronts the widespread myth that deinstitutionalisation subsequently led to the increased homelessness and incarceration of disabled people and redirects our attention to real underlying forces of racism and neoliberal policies (2020, chapter 4). in linking deinstitutionalisation and abolition, decarcerating disability also does important work in challenging the silo-ing of struggles and moving away from narrow visions of ‘alternatives’ to imprisonment, e.g., discrete measures that replace one institutional model or carceral regime for another. instead, the book repeatedly emphasises the importance of a much broader vision – one that confronts the complex systemic and structural dynamics that produce carcerality and disablement – and the need for a deeper epistemology of abolitionist ‘knowing and unknowing’ (2020, chapter 3). here ben-moshe invites us to consider abolition as much more than a political framework or agenda for action, but as counter-hegemonic knowledge that can open up new and radical ways of organising society as a whole. abolitionist epistemologies are forms of knowing that challenge the status quo, question take-for-granted assumptions and enable the “letting go of attachment to certain ways of knowing” (2020, p. 126). these practices of knowing and unknowing not only enable a critique of carceral logics and reformist traps, but also open up “possibilities of other life worlds that cannot be imagined now” (2020, p. 130).  ben-moshe’s book is also a model of how to do scholarly work in dialogue and engagement with on-the-ground organising work. too often there are  tendencies in the academy to collaborate with activist knowledge in superficial or token ways, and yet in decarcerating disability, the engagement with activism is deeply embedded and infused throughout the book in powerful and compelling ways. the book also helps to connect analysis of past struggles, current organising and future movements for change. steele’s book, disability, criminal justice and law (2020) also offers vital lessons around the nexus of disability and carceral control, particularly in drawing attention to the ways that seemingly benign alternatives – such as court diversion programmes – can be deeply embedded in carceral logics and practices. the book deftly overturns the widespread assumption that court diversion programmes for disabled people are a ‘progressive’ or non-carceral approach, and demonstrates the harm and violence that is done to disabled people through these schemes.  steele’s book exposes not just the limits of court diversion for disabled people, but also identifies the ways in which the exercise of carceral power through diversion schemes actively works to debilitate and harm disabled people. the book meticulously documents how court diversion schemes function as coercive interventions that reinforce racist and colonial modes of power, further entrench socioeconomic inequalities, and entangle ‘social support’ with punitive control.   while steele’s book isn’t explicitly framed in terms of the debates around ‘reformist reforms’ versus ‘abolitionist reforms’ (berger, kaba and stein 2017), the analysis lends itself helpfully to those discussions. the book clearly illustrates how well-meaning reforms end up extending carceral powers – largely because such reforms operate within the existing punitive frameworks, logics and knowledge-regimes of the criminal justice system. reading ben-moshe and steele’s books together offers readers a cautionary tale – both about the limits of analysis that does not consider the connections between carcerality and disablement but also the necessity for more radical visions that confront the structural underpinnings of harm and violence and move in more abolitionist and decarceral directions.  both books also highlight the importance of building opportunities for coalitional politics.  for example, drawing on abram j lewis’ work, ben-moshe references a point in the 1970s when campaigners in the us were calling to end psychiatry and psychiatric detention full stop, and gays and lesbians were invited to join that call. but rather than supporting that broad movement, many gay liberation organisers opted instead to take the narrower position of declassifying homosexuality as a mental illness. in doing so, they carved out a space for gays and lesbians to be positioned outside that pathologizing framework, but without questioning the framework itself (ben-moshe 2020; p.97; lewis 2016; see also kunzel 2017). it was a missed opportunity to expose the wider harms of psychiatry’s constructions of normal/abnormal, sane/mad and its rationales for carceral controls of disabled and mad people more broadly. the resonances with wider patterns in mainstream lgbtq+ politics are striking. although early gay liberation work centred campaigns against criminalisation and imprisonment, once homosexuality was formally decriminalised in many anglo and european countries, later generations of lgbtq+ organisations, particularly the more class and race-privileged ones, have largely abandoned prisoner solidarity and anticarceral work. arguably, this was due to a narrow analytical framework that saw queer criminalisation as a ‘flaw in the system’ rather than symptomatic of the fundamental harms of prisons and carceral power more widely (lamble 2013).  steele’s book likewise speaks to these concerns by drawing attention to the dangers of organisations and advocates getting pulled into calls to support seemingly benign but ultimately harmful reforms like ‘diversion programmes’– and how these projects become a missed opportunity for pushing a more systemic challenge of carceral powers.  in prompting discussions about opportunities for coalition, both books also implicitly raise broader questions about the crossover of academic and activist work.  despite a long tradition of activist-scholarship which bridges academic and community organising work, the relationship between academia and activism remains fraught; tensions, divisions and challenges routinely arise, particularly when navigating power differentials among academic and community organiser positions, as well as institutional pressures (joseph-salisbury and connelly 2021). how best to engage in activist-scholar work – and how to do so ethically, pragmatically and impactfully – remains an open and ongoing point of discussion, particularly in educational, research and community contexts dominated by neoliberal frameworks. a simple yet key guiding question is offered at the outset of ben-moshe’s book: “is this going to aid in liberating people?” (2020, p x). this is indeed “a core question at the heart of abolitionist praxis”(2020, p. x) and one that we all benefit from continually posing. references abolition and disability justice coalition. 2020. “resources.” abolitionanddisabilityjustice.com https://abolitionanddisabilityjustice.com/resources/ abolitionist futures. 2019. “a history of uk abolition.” abolitoinistfutures.com.  https://abolitionistfutures.com/history-of-uk-prison-abolition  ben-moshe l. 2020. decarcerating disability: deinstitutionalisation and prison abolition, university of minnesota press. berger d, kaba m and stein d. 2017. “what abolitionists do.” jacobin magazine. https://jacobin.com/2017/08/prison-abolition-reform-mass-incarceration berlatsky n. 2021. “abolishing the police and prisons is a lot more practical than critics claim.” nbc news. 23 feb. https://www.nbcnews.com/think/opinion/abolishing-police-prisons-lot-more-practical-critics-claim-ncna1258659 black lives matter uk. 2021. our platform. https://ukblm.org/demands/ black youth project 100. 2019. “for the future leaders of a black queer feminism movement.” https://www.byp100.org/post/for-the-future-leaders-of-a-black-queer-feminist-movement brown r. 2022. “what happened to kill the bill?” novara media. 5 october. https://novaramedia.com/2021/10/05/what-happened-to-kill-the-bill/ critical resistance (ed). 2008. abolition now! ten years of strategy and struggle against the prison industrial complex. ak press. davis ay, dent g, meiners er and richie be. 2022. abolition. feminism. now. haymarket books. defund the police. 2021. “about defund the police.” defundpolice.org https://defundpolice.org/about/ duffy rice, j. 2020. “the abolition movement.” vanity fair, 25 august.  https://www.vanityfair.com/culture/2020/08/the-abolition-movement   joseph-salsibury r and connelly l. 2021. anti-racist scholar-activism. manchester university press. kaba m. 2020. “yes, we mean literally abolish the police: because reform won’t happen.” new york times. 12 june. https://www.nytimes.com/2020/06/12/opinion/sunday/floyd-abolish-defund-police.html kemp t and duff k. 2020. "would ‘defund the police’ work in the uk?" novara media. 13 june. https://novaramedia.com/2020/06/13/would-defund-the-police-work-in-the-uk/ kunzel r. 2017. “sex panic, psychiatry, and the expansion of the carceral state.” in the war on sex, edited by halperin dm and hoppe t, 229-246. duke university press. kushner r. 2019. “is prison necessary? ruth wilson gilmore might change your mind.” new york times. 17 april. https://www.nytimes.com/2019/04/17/magazine/prison-abolition-ruth-wilson-gilmore.html lamble s. 2013. “queer necropolitics and the expanding carceral state:  interrogating sexual investments in punishment." law & critique 24(3): 229-253. lewis aj. 2016. "‘we are certain of our own insanity’: antipsychiatry and the gay liberation movement, 1968-1980.” journal of the history of sexuality 25(1): 83-113. steele l. 2020. disability, criminal justice and law: reconsidering court diversion. routledge. russell m and stewart j. 2001. “disablement, prison and historical segregation.” monthly review 53(3): 61-75. the red nation. 2021. the red nation programme. https://therednation.org/10-point-program/ taylor, ky. 2021. “the emerging movement for police and prison abolition.” the new yorker. 7 may. https://www.newyorker.com/news/our-columnists/the-emerging-movement-for-police-and-prison-abolition __________________________________________________________________________________ 4 __________________________________________________________________________________ 3 untitled document feminists@law, vol 8, no 1 (2018) twentieth century housewives and the sexual contract sharon thompson* this is a video of a paper given at the sexual contract: 30 years on conference held in the school of law and politics, cardiff university on 10-11 may 2018. this paper was part of panel 1: the marriage contract, chaired by kathryn mcneilly. the powerpoint slides accompanying the paper are available as a separate file. “if a wife has a right to the money she can save from her housekeeping allowance, she might let her husband go short of food while she builds up a banking account. she might serve him up corned beef instead of roast beef for dinner.” these are the words of goddard lj in blackwell v blackwell [1943] 2 all er 579, where it was held that mrs blackwell’s savings of one hundred pounds ten shillings in the oxford and district co-operative society were the property of her husband, from whom mrs blackwell had been separated for two years. protection of the husband’s roast beef might have been secured, but the consequences for mrs blackwell were severe. writing in 1967, lady summerskill described her as ‘helpless and hopeless, a victim of a legal system which still in the twentieth century treats the wife as a chattel of her husband’. in this paper, i argue that the sexual contract enriches our understanding of the lived experiences of twentieth century housewives like mrs blackwell by looking to the root causes of their oppression and finding them in the sexual contract underpinning marriage. the sexual contract also highlights the shortcomings of ‘conjectural histories’ and the importance of paying attention to the ‘missing half of the story’. this emphasises the need for a feminist history of family law, to appreciate the forgotten campaigns of pressure groups that sought to change the law affecting married women. drawing on my forthcoming slsa funded research, i take the married women’s association as my focus. this group financed mrs blackwell’s unsuccessful appeal in 1943 and continued to campaign for legal reform of wives’ right to housekeeping money. twenty years later, lady summerskill’s married women’s property bill gained royal assent (becoming the married women’s property act 1964), and provided that money given by a husband to his wife for housekeeping was to be held by husband and wife in equal shares. yet as this paper explores, the story behind this short piece of legislation is often ignored, and carole pateman’s work helps us understand why. paying attention to the role of the sexual contract in family law history requires a rewriting of orthodox history that does not forget women’s struggles for legal equality. indeed, to properly understand why the law affecting married women is so different now, it is imperative that the married women’s association’s hard-fought campaigns are not overlooked. while their campaigns might not have always led directly to reform, this group was an example of feminist activism in the mid-twentieth century that emphasised the inequity of the current law and created pressure for change.   * senior lecturer in law, school of law and politics, cardiff university, wales. email: thompsons20@cardiff.ac.uk beverley skeggs, 'values beyond value? is anything safe from being subsumed by the logic of capital?' this is an audio recording of a seminar given by professor beverley skeggs in the school of social policy, sociology and social research, university of kent on 7 march 2013. beverley skeggs is head of the department of sociology at goldsmiths, london. leela de paula the legal standing of fake abortion clinics __________________________________________________________________________________________ feminists@law vol 11, no 1 (2022) __________________________________________________________________________________ wolf in sheep’s clothing: the legal standing of fake abortion clinics leela de paula[footnoteref:1]* [1: leela de paula is an undergraduate at smith college with a double major in the study of women & gender and government. she can be reached at ldepaula@smith.edu.] abstract across the united states, fake abortion clinics calling themselves “crisis pregnancy centers” (cpcs) are being set up in record numbers by pro-life organizations. these centers operate to compromise the reproductive autonomy of women by dissuading them from getting abortions, disproportionately targeting women from minority communities through deceitful advertisement, scientific misinformation, and false promises of after-birth care. despite their highly questionable practices, cpcs have little to no regulation as compared to real abortion clinics, relying on legal technicalities and conservative political support in state legislatures for their ongoing operation. an analysis of their legality shows a history of court cases and legislation challenging their existence, often overturned in their favor by conservative forces, and the potential of a few ongoing cases to grant them further influence in communities by limiting abortion access. however, there are promising options to undermine their current legal standing using both medical and consumer laws. as abortion rights stand to be overturned in the supreme court, it is important to recognize the cpcs’ crucial role in the anti-abortion movement and to curb their growing influence by limiting their scope of operation through the law and other forms of legal action. comment all over the united states, “crisis pregnancy centers” (cpcs) set up by pro-life organizations have been appearing in record numbers, far outnumbering clinics providing abortions. fueled by pseudoscience and the conservative political agenda, crisis pregnancy centers operate to target vulnerable women disproportionately women of color, immigrant women, and low-income women. cpcs target these women who often feel unsure about their reproductive situation to convince them to not get abortions by spreading false medical information, pretending to provide medical assistance, and promising after-birth care that never arrives. in this paper, i will examine why such centers exist and how they are able to operate under the law, drawing on both significant past and ongoing legal cases that influence their operation. through an analysis of the legal standing of cpcs and the state of abortion rights today, i point to the urgent need to curb their influence in the united states before the prohibition of abortion empowers them further, and identify potential legal actions that would undermine their current legal standing. at a time like now where reproductive rights are being undermined by state legislatures and on the precipice of being overturned in the supreme court, it is imperative to recognize cpcs as the foot soldiers of the anti-abortion movement positioned to inflict direct harm on women’s reproductive rights, especially if abortion is successfully criminalized. according to the guttmacher institute, the first crisis pregnancy center in the united states was established in hawaii in 1967, in response to the state legalizing abortion (rosen, 2012). fifty years later in 2017, it was estimated that between 2,500 and 4,000 centers across the country were in operation (kimport et al, 2018). crisis pregnancy centers, also known as “pregnancy resource” centers, are a type of non-profit organization that serve as “storefronts that use false and misleading advertising and offer of free services to lure women into their offices,” with the goal of deterring pregnant women from getting abortions by engaging in fearmongering tactics (naral, 2016). the services they may offer range from free pregnancy tests and ultrasounds to promises of post-birth assistance, such as providing diapers or baby clothes. although they are not licensed to provide medical services and do not generally have medical personnel as part of their staff, they present themselves online and in person as legitimate providers of healthcare. even more concerning, naral pro-choice reports that some cpcs have “developed in sophistication to such a degree that they now offer certain limited medical services… [some] centers operate as medical clinics or [are] in the process of acquiring ultrasound equipment” (naral, 2016). such developments abet their carefully constructed misadvertisement as unbiased health-care facilities, obscuring their underlying political agenda. however, they continue to be exempt from the regulation, licensing requirements, and general oversight that apply to legitimate health care facilities, enabling them to violate the rights of the women who fall prey to their deceptive practices. once women are through the doors of a cpc, they are subjected to “counselling” that construes abortion as a dangerous option for ending a pregnancy, despite overwhelming evidence that says otherwise. according to a comprehensive study in 2012, abortion is markedly safer than childbirth itself, with the “risk of death associated with childbirth… approximately 14 times higher than that with abortion” (raymond & grimes, 2012). however, many cpcs insist that abortion poses a number of significant risks to women. in a report released by the committee on government reform of the house of representatives, it was found that centers were telling women who sought counselling from them that induced abortion increased the risk of breast cancer, reduced fertility in the future, and had damaging mental effects such as “post-abortion stress” (likened to post traumatic stress disorder) and increased suicidal ideation (united states house of representatives, 2006). these are all baseless claims with no scientific evidence to support them. “alternative facts” like these are utilized to scare women into keeping their pregnancy, undermining their right to reproductive self-determination. if the centers are unable to fully convince women to not go through with an abortion, they engage in a delaying tactic whereby staff advise them to take their time with their decision to have an abortion even though no state in the country allows access to abortion throughout the entirety of the pregnancy (naral, 2015). this form of misinformation weaponizes the law against pregnant women, intentionally keeping them oblivious about the time constraints of their reproductive decisions in their respective states and preventing them from being able to access legal abortion. a particularly concerning result of cpcs escaping legal regulation is their ability to collect and share sensitive information that women provide under the impression that the centers are subject to the same privacy standards as traditional medical clinics. according to privacy international, anti-abortion organizations are accumulating data on the women who enter the thousands of cpcs across the country, which could aid them in not only improving their ability to profile and target vulnerable women online but also to track medical histories that they may share, including but not limited to abortions that women had or were planning to have (privacy international, 2019). this, in the light of abortion bans sweeping the country through state legislatures, paves the way for cpcs to have access to incriminating information, increasing the risk of women to be criminally prosecuted for ending pregnancies. additionally, having access to such information could be valuable in strengthening the political influence of the anti-abortion movement over future legislation (privacy international, 2019). the collection of personal data, and exploitation of such data, by the cpcs is in direct violation of the privacy rights of women and undermines their human right to health. despite their blatant pseudoscience and violations of women’s constitutional rights, the centers continue to receive upwards of $60 million per year in state and federal funding through direct funding, special equipment, or even through federal abstinence-only program funding (naral, 2015). the centers also receive support from anti-choice lawmakers in congress who push for their legitimation to encourage the notion that such centers are just like other health care facilities. their legality revolves mainly around the lack of regulatory oversight and the fact that “their practices are considered to fall under the classification of free speech, which is protected by the first amendment… [this] provides them with a loophole to avoid [legal] scrutiny” (bryant & swartz, 2018). support by those in positions of power exacerbate the harm to women and encourages cpcs to continue to weaponize the first amendment against reproductive rights. an example of the usage of “free speech” in regards to cpcs can be seen in one of the most significant challenges to their operation, the reproductive fact act in california, which required that the centers inform their customers about all their options for reproductive health services in the state, including legal abortion. this led to the infamous national institute of family and life advocates v. becerra case in 2018, where the anti-abortion organization national institute of family and life advocates (nifla) representing more than 1,400 cpcs filed a lawsuit against the act, claiming that it was a violation of their first amendment rights to be compelled to share such information (nifla v. becerra, 585 u.s. __, 138 s. ct. 2361 (2018)). the supreme court, in a 5-4 ruling, struck down the act, weakening the pro-choice legal defense and enabling the anti-abortion movement to weaponize the first amendment against vulnerable women and their reproductive rights. indeed, the political power behind this decision was evident in then vice president mike pence’s tweet applauding the outcome of the case: “protecting the sanctity of life is a priority of this administration and we commend scotus’ decision on this case” (pence, 2019). it is thus clear that conservative elites undermine women’s reproductive rights by codifying pseudoscientific narratives into the law and enabling loopholes for the operation of cpcs. in stark contrast to the leeway granted to cpcs when it comes to their legality, abortion clinics are under attack more than ever. firstly, their access to federal and state funding is severely limited. under the trump administration, regulations were set in place that disqualified clinics that offered abortion services from receiving title x funds, a federal grant program dedicated to providing comprehensive family planning, as well as preventing the provision of abortion referrals under the program to clients who wanted them (frederiksen et al, 2021). additionally, their revenue is limited due to a 1977 legislative provision called the hyde amendment, which “forbids the use of federal funding for abortion except in cases of life endangerment, rape or incest” (guttmacher institute, 2021). with 15.6 million low-income women with medicaid coverage of whom 30% are black and 24% are hispanic this severely impacts their ability to afford abortion, further undermining vulnerable women’s reproductive rights (planned parenthood, 2021). secondly, many abortion clinics are subject to targeted regulation of abortion providers (trap) laws, additional regulations solely for abortion clinics. past examples of such laws include holding abortion clinics to the same standard as ambulatory surgical centers, even though abortion clinics do not provide medical procedures as risky or invasive as surgical centers, as well as “requiring physicians who provide abortions to establish official relationships with local hospitals” (guttmacher institute, 2020). both laws were struck down by the u.s. supreme court in 2016 but had long-lasting effects on both the clinics and the women prevented from accessing them. the over-regulation of abortion clinics and under-regulation of cpcs paint a clear image of the power imbalance in their respective legal standing, and demonstrate the significant role that these cpcs have in the current attack against women’s rights. with dobbs v. jackson women’s health organization a case on the constitutionality of a pre-viability abortion ban in mississippi currently awaiting decision from the conservative-majority supreme court, many scholars and activists have raised the alarm around the precarity of reproductive rights in the united states (center for reproductive rights, 2018). if roe v. wade is overturned, cpcs are in prime position to take over as the main legal providers of pregnancy counselling, placing them at the frontlines of the anti-abortion movement by directly interacting with women and monitoring their pregnancy choices. legal interventions are key to the dismantling of the anti-abortion power bloc, especially in regards to the operation of cpcs. due to california’s reproductive fact act being struck down by the supreme court, most regulations specifically aimed at cpcs became invalid (vlach, 2020). however, there are a number of established avenues in other areas of law that can be used to undermine the existence of fake abortion clinics. kate vlach, an attorney general from washington d.c. specializing in reproductive rights, proposed using unfair, abusive and deceptive practices acts (udap laws) to investigate and prosecute the cpcs’ practices. these acts are consumer protection laws “designed to combat deceptive practices in the sale or offer of goods and services,” which if used by states can apply to cpcs (vlach, 2020). as states look for alternatives to disclosure laws, vlach argues that attorneys general can enforce an updated version of udap laws against cpcs while “avoiding the constraints imposed by the supreme court’s most recent decision” (vlach, 2020). there is power in these recommendations because attorneys general will be able to assert their powers as checks and balances to establishments like cpcs that continue to violate women’s rights. another potential legal method would be to extend the regulations applicable to medical centers to cpcs, leaning into their narrative of providing legitimate medical services. in 1972, the case of cobbs v. grant established that since patients are generally unknowledgeable in the medical realm and depend on their physician for accurate medical information, their consent to treatment must be an informed consent (cobbs v. grant, 8 cal. 3d 229 (1972)). if the counselling services provided by cpcs were considered medical advice by legislation, they would have to take responsibility for any misinformation shared by their staff with their customers. regarding cpcs intentionally misrepresenting themselves online to target women, legislation could also be used to curb the spread of misinformation on popular platforms such as facebook and google. the biden-harris administration has advocated for the repeal of section 230 of the communications decency act which “has allowed social media sites to avoid being considered publishers and therefore not liable for the content found there” (ehrlich, 2021). if there was strengthened government policy and oversight on the digital footprint of cpcs, their ability to deceive women would be dramatically curtailed. at a time like now when reproductive rights are being undermined by state legislatures and on the precipice of being overturned in the supreme court, it is imperative to recognize cpcs as the footsoldiers of the anti-abortion movement positioned to inflict direct harm on women’s reproductive rights, especially if abortion is successfully criminalized. given the legal standing of cpcs and the ongoing legal threats against reproductive rights in the supreme court, i argue that there is an urgent need to curb their political and social influence before the prohibition of abortion empowers them further,. with there being approximately three cpcs to every one abortion clinic, women in need of pregnancy counselling especially those from a disadvantaged socioeconomic position are at high risk of being medically deceived and fed lies about their reproductive options. as women’s reproductive rights continue to be debated in the highest court in the u.s., cpcs operate on the ground to directly subvert women’s human rights without any governmental regulation. they are positioned to dominate the field of pregnancy counselling and further the anti-abortion political agenda through pseudoscience if the constitutional basis of reproductive rights is overturned. therefore, it is imperative that laws must be put in place to expose the cpcs for what they truly are sham institutions manipulating women to further their conservative political agenda before women’s agency around their reproductive choices become a thing of the past. references bryant a.g. & swartz, j.j. (2018) “why crisis pregnancy centers are legal but unethical” ama journal of ethics, 20: 269-277, https://journalofethics.ama-assn.org/article/why-crisis-pregnancy-centers-are-legal-unethical/2018-03 center for reproductive rights (2018) “women’s health organization v. dobbs.”, https://reproductiverights.org/case/jackson-womens-health-organization-v-dobbs/ ehrlich, g. (2021) “fighting misinformation: how new laws might help”, new york state bar association, https://nysba.org/fighting-misinformation-how-new-laws-might-help/ frederiksen, b., gomez, i. & salganicoff, a. (2021) “rebuilding title x: new regulations for the federal family planning program”, kaiser family foundation, https://www.kff.org/womens-health-policy/issue-brief/rebuilding-title-x-new-regulations-for-the-federal-family-planning-program/ guttmacher institute (2020) “targeted regulation of abortion providers (trap) laws”, https://www.guttmacher.org/evidence-you-can-use/targeted-regulation-abortion-providers-trap-laws guttmacher institute (2021) “state funding of abortion under medicaid”, https://www.guttmacher.org/state-policy/explore/state-funding-abortion-under-medicaid kimport k., kriz, r. & roberts, s.c.m. (2018) “the prevalence and impacts of crisis pregnancy center visits among a population of pregnant women” contraception, 98(1): 69-73, https://doi.org/10.1016/j.contraception.2018.02.016 naral pro-choice america (2015) “crisis pregnancy centers lie: the insidious threat to reproductive freedom”, https://www.prochoiceamerica.org/wp-content/uploads/2017/04/cpc-report-2015.pdf naral pro-choice america (2016) “the truth about crisis pregnancy centers”, https://www.prochoiceamerica.org/wp-content/uploads/2016/12/6.-the-truth-about-crisis-pregnancy-centers.pdf pence, mike (2019) “one year ago, nifla v. becerra resulted in the legal protection of free speech for life affirming pregnancy resource centers and their advocates. protecting the sanctity of life is a priority of this administration & we commend scotus’ decision on this case” twitter, 26 june, https://twitter.com/vp45 planned parenthood (2021) “hyde amendment”, https://www.plannedparenthoodaction.org/issues/abortion/federal-and-state-bans-and-restrictions-abortion/hyde-amendment privacy international (2019) “how anti-abortion activism is exploiting data”, https://privacyinternational.org/long-read/3096/how-anti-abortion-activism-exploiting-data raymond, e.g. & grimes, d.a. (2012) “the comparative safety of legal induced abortion and childbirth in the united states” obstetrics & gynecology, 119 (2-1): 215-219, https://journals.lww.com/greenjournal/abstract/2012/02000/the_comparative_safety_of_legal_induced_abortion.3.aspx rosen, j.d. (2012) “the public health risks of crisis pregnancy centers” perspectives on sexual and reproductive health, 44(3), https://www.guttmacher.org/journals/psrh/2012/09/public-health-risks-crisis-pregnancy-centers united states house of representatives committee on government reform (2006) “false and misleading health information provided by federally funded pregnancy resource centers” , prepared for rep. henry a. waxman, https://motherjones.com/files/waxman2.pdf vlach, k. (2020) “what’s old is new again: how state attorneys general can reinvigorate udap enforcement to combat crisis pregnancy center deception” women gender & the law ejournal, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3445709 __________________________________________________________________________________ 10 __________________________________________________________________________________ 11 karma chavez, 'queer migration politics: activist rhetoric and coalitional possibilities' this is an audio recording of a lecture given by dr karma chavez in the kent centre for law, gender and sexuality, university of kent on 17 june 2013. a podcast of the lecture can also be found on the decolonizing sexualities network website at http://www.decolonizingsexualities.org/karma-chavez-lecture/ karma chavez is assistant professor in the department of communication arts and in chican@ and latin@ studies, university of wisconsin, madison, usa. she is co-editor of standing in the intersection: feminist voices, feminist practices (suny press, 2012), editor of a special issue of the journal of international and intercultural communication on 'queer intercultural communication' (2013, vol 6. no. 2), and author of several articles on feminism, queer theory and politics, migration, and social movements. her book, titled queer migration politics: activist rhetoric and coalitional possibilities, will be out with university of illinois press in the fall of 2013. johanna oksala, 'in defence of experience' this is an audio recording of a seminar given by dr johanna oksala at the kent centre for law, gender and sexuality, university of kent on 7 march 2013. dr oksala gives a brief introduction before commencing to read her paper. the recording is approx. 45 minutes. the full article from which the paper is taken will appear in a forthcoming issue of hypatia johanna oksala is a senior research fellow in the department of philosophy, history, culture and art studies at the university of helsinki. untitled document feminists@law, vol 8, no 1 (2018) a feminist discourse on the global indian surrogacy bazaar sheela saravanan* this is a video of a paper given at the sexual contract: 30 years on conference held in the school of law and politics, cardiff university on 10-11 may 2018. this paper was part of panel 4: the new surrogate mother contract, chaired by julie mccandless. the powerpoint slides accompanying the paper are available as a separate file. the transnational indian surrogacy markets are a classic case of how rampant violations of human and child rights, women’s bodily integrity and medical ethics thrive on global structural inequalities. in the garb of reproductive liberty, the surrogacy practice promotes deeply embedded pronatalist, patriarchal, racial and ableist hegemony. this raises globally relevant questions of geneticisation, alienation of the gestational role, human and child rights violations, trafficking and reproductive injustice. in her book, the sexual contract, carole pateman critiques the fact that patriarchal control prevails in the marriage contract, the prostitution contract, and the contract for surrogate motherhood. my research, recently also published as a book titled a transnational feminist view of surrogacy biomarkets in india, shows the link between the three kinds of sexual contracts elaborated in carole pateman’s book. india banned surrogacy on reported deaths of surrogate mothers and egg donors, custody battles for children, abandonment of disabled and undesired children and exploitation of women, apart from trafficking for surrogacy. the illegal chain of networks trafficking young girls from poor localities in india for prostitution and domestic work has also been used for surrogacy. the surrogacy practice maintains patriarchy through familial persuasion and contracts that control and exploit women’s bodies and effect triple-alienation: from the children born, from their own body and physical alienation. applying the reproductive justice framework, i argue that surrogacy is likely to put the surrogate mother through multiple forms of indignity and injustice along with life risk and hence cannot be considered the intended parent’s reproductive right.   * research associate, south asia institute, department of anthropology, university of heidelberg, germany. email: sheela.saravanan@uni-heidelberg.de feminists@law, vol.3, no.1 (2013) ann stewart, 'missing the link: a gendered perspective on labour regulation in global value chains' this is an audio recording of anne stewart's paper delivered as part of the 'international economic law and development' theme at the slsa annual conference, university of york, 27 march 2013. in it, she builds on the approach developed in her recent monograph, gender, law and justice in a global market (cambridge university press, 2011) to argue that feminist legal scholarship has a valuable contribution to make to global value chain analysis. ann stewart is an associate professor and reader in law at the university of warwick. feminists@law, vol.3, no.1 (2013) rosemary auchmuty, 'with dissolution comes revelation: civil partners discover the economic basis of marriage' this is an audio recording of rosemary auchmuty's paper delivered as part of the 'family and children law and policy' stream at the slsa annual conference, university of york, 27 march 2013. the paper reports on the results of her pioneering, british academy-funded research on civil partners' experiences of dissolving their civil partnerships. rosemary auchmuty is a professor of law at the university of reading. untitled document feminists@law, vol 8, no 1 (2018) marriage, work, and the dissolution of the productive household luke taylor* this is a video of a paper given at the sexual contract: 30 years on conference held in the school of law and politics, cardiff university on 10-11 may 2018. this paper was part of panel 1: the marriage contract, chaired by kathryn mcneilly. the powerpoint slides accompanying the paper are available as a separate file.  the many figures that populated the family in the seventeenth and eighteenth centuries gradually disappeared until the couple of husband and wife took the centre of the stage, and the marriage contract became constitutive of domestic relations. carole pateman, the sexual contract, p.116. this paper is an historical study of the dissolution of the productive household in (primarily) nineteenth-century english law and legal thought. building on pateman’s insights into the construction of the family and marriage in political thought, the paper shows how law and legal thought contributed to the disaggregation of work and family life, and constructed (in place of the household) a legal conception of the private family that revolved around the married couple. the first part of the paper traces the movement in scholarly legal thought from blackstone’s “private oeconomical relations”, to the late nineteenth century category of “domestic relations”, and the eventual emergence of “family law” in the twentieth century. it identifies two key processes in this intellectual shift: the excision of master-servant law from the legal household and its (imperfect) identification with contract; and a concomitant move away from a contractual treatment of marriage towards a modern, specifically legal, status-based conception of the relation. the second part of the paper considers how institutional lawmaking and social norms combined to disaggregate the household in distinctly gendered ways. addressing enclosure laws, family wage ideology, married women’s property laws, and judicial reinforcement of women’s presumed domesticity in breach of promise to marry cases, it shows how law and ideology reinforced the sexual contract by splitting the household along corresponding female/male and family/work lines.   * sjd candidate, faculty of law, university of toronto, canada. email: luke.taylor@unsw.edu.au project proposal project proposal as part of an ongoing concept i have used the theme of “in a heartbeat”. it focuses on the immediacy of life at a given moment. this project arose from an accidental fall i had in december. apart from the physical affects of the fall, it was the sudden, random circumstances of it, which resonated most with me. to represent the various elements of the affects from the fall, the piece will consist of a number of different layers. · the first layer will be a print on a 2m x 1.5m sheet of calico fabric. the image will be taken from a semi-blind drawing of a foot reflected in a mirror. the contorted pose of the foot represents the pain. · in front of the calico will hang a sheet of muslin cloth. to represent the fall itself a pattern of red footprints will be made directly onto the fabric, narrating the sequence of the fall. · the third layer will consist of a projection of images. these will rotate between a series of different angles from a fallen perspective, set in different environments. by projecting the images onto the muslin it will allow for the play of light as the fabric moves naturally in the air, reflecting the transience of time. the images will represent the chaos and confusion of the moment. by setting them in different environments it will portray the random occurrence of the accident. untitled document feminists@law, vol 8, no 1 (2018) how can the sexual contract help us to understand the relationship between prostitution and domestic service? catherine weiss* this is a video of a paper given at the sexual contract: 30 years on conference held in the school of law and politics, cardiff university on 10-11 may 2018. this paper was part of panel 2: the employment contract, chaired by sarah keenan. the powerpoint slides accompanying the paper are available as a separate file. researchers studying prostitution and/or domestic service in a wide range of times and places have long recognised a relationship between these two activities (e.g. agustín, 2007; lévy & lieber, 2008; mahdavi, 2013; moujoud & pourette, 2005; tinsman, 1992). among other things, they have observed women moving between them in order to generate enough income to support themselves and their children. the relationship has become particularly noticeable in the present day in the context of increasing numbers of women migrating from poorer to richer parts of the world in order to engage in domestic work, caring work, or ‘sex work’. this relationship between prostitution and domestic service is highlighted by researchers taking the ‘sex work position’ on prostitution (jeffreys, 2009), but such approaches hardly recognise relations of domination among the sexes. on the other hand, researchers taking an abolitionist position on prostitution, who do recognise relations of domination among the sexes, tend to ignore or deny the existence of any link between prostitution and domestic service. how, then, can the relation between prostitution and domestic service be theorised? in this talk, i develop a theoretical account of this relation by drawing on insights on the relationship between marriage and prostitution from abolitionist feminists and from french materialist feminists. carole pateman’s analysis of paid work, marriage and prostitution in the sexual contract provides the key to reconciling the fundamental disagreements between these two theoretical traditions, allowing the development of a finer analysis of the relationship between women’s bodies and work. references agustín, l. (2007). sex at the margins: migration, labour markets and the rescue industry. london: zed books. jeffreys, s. (2009). the industrial vagina: the political economy of the global sex trade. london: routledge. lévy, f., & lieber, m. (2008). northern chinese women in paris: the illegal immigration-prostitution nexus. social science information, 47(4), 629–642. mahdavi, p. (2013). gender, labour and the law: the nexus of domestic work, human trafficking and the informal economy in the united arab emirates. global networks, 13(4), 425–440. moujoud, n., & pourette, d. (2005). “traite” de femmes migrantes, domesticité et prostitution. cahiers d’etudes africaines, 3(179–180), 1093–1121. retrieved from http://www.cairn.info/revue-cahiers-d-etudes-africaines-2005-3-page-1093.html    tinsman, h. (1992). the indispensable services of sisters: considering domestic service in united states and latin american studies. journal of women’s history, 4(1), 37–59.   * phd candidate, school of global, urban and social studies, rmit university, melbourne, australia. email: catherine.weiss@rmit.edu.au feminists@law, vol.3, no.1 (2013) nicola barker and daniel monk, discussion of 'not the marrying kind' this is an audio recording of an author meets reader session at the slsa annual conference, university of york, 27 march 2013. nicola barker's book, not the marrying kind: a feminist critique of same-sex marriage, was the winner of the 2013 hart slsa book prize. she introduces the book and then engages in discussion about it with daniel monk. nicola barker is a senior lecturer in law at the university of kent. daniel monk is a reader in the school of law, birkbeck, university of london. hannah pereira managing a professional identity __________________________________________________________________________________________ feminists@law vol 11, no 2 (2022) __________________________________________________________________________________ managing a professional identity as abortion care providers in a time of uncertainty hannah pereira[footnoteref:1] [1: dr hannah pereira. email: hp.hannahpereira@gmail.com ] the reversal of roe v. wade in the usa has once again brought to light the moral problem of ending a pregnancy with the supreme court’s decision sending shock waves across the world, generating protests in many cities. the decision to reverse the constitutional right to have an abortion has been described as "an attack on women's rights everywhere" (lavalette et al, 2022: 1) and also changes the dynamics for the medical professionals that work to provide abortions, who may now, depending on law state-by-state, no longer be permitted to do what they think is in line with the needs of women they should be caring for. those working in the usa had previously been providing care to patients in "deeply stigmatized… [and] heavily restricted" settings in some states (buchbinder, 2022: 1), but these same healthcare professionals can now face prosecution for simply performing this medical procedure. the changing legal landscape of abortion because of the decision to reverse roe vs wade raises important questions on the position of healthcare providers in the usa and their future. some states, such as tennessee, missouri and south dakota have worded state law to only allow medical professionals to provide an abortion when it is medically necessary to save the life of the pregnant woman. this has been called described as a 'legal limbo' in various news articles across america because, as simmons-duffin (2022) explains: physicians who provide abortions are in an incredibly difficult spot as they try to navigate the new legal landscape, especially in cases where a pregnant patient is sick or has complications. intervene, and you risk violating the law and being sued, losing your medical license, even going to jail. don't intervene and you could be risking your patient's life, and potentially being sued by the patient or family. whilst it is unlikely that medical professionals who provide abortions in britain would be sued by the patient's family, and the political context is very different (for example, with uk politicians recently voting in favour of home use of medical abortion) it is the case that the law in england and wales places doctors in an ambiguous position where they too can find themselves in a ‘difficult spot’. there have also been many attempts in england and wales over the past 10 years to target doctors who provide abortion with accusations of law breaking and unprofessional behaviour, undermine trust in the work they do, and generate suspicion about their motives. i completed a phd that investigated the professional identity of doctors who provide abortions in england and wales, and in this contribution i set out some key findings. while as noted there are very significant contextual differences with the usa, i suggest that basic components of professional identity are similar, and will influence the course of developments in the usa. abortion doctors, i suggest, are unlikely to take such a grave assault on their professional identity and wish to treat women as moral actors with autonomy and healthcare needs that should be met, without resistance. my research used a qualitative methodological approach, whereby in-depth interviews were carried out with 47 doctors who provide abortions in england and wales to examine their beliefs and values. abortion is currently a medicalised problem in england and wales (keown, 1988; sheldon, 1997), where the law places doctors at the centre of legal provision and puts doctors in control of who can have a legal abortion. the provision of abortion is governed by two main laws, the 1861 offences against the person act (oapa) and the abortion act 1967. these laws have constructed abortion doctors as gatekeepers and guardians of morality who are in control of who can have a legal abortion, creating tensions between the legal framework and the practice of abortion since 1967. increasingly those who do provide abortion have come to act as ‘doctors of conscience’ and more and more work to ‘normalise’ abortion as part of healthcare (lee, sheldon and macvarish, 2018). doctors in england and wales are then tasked with managing this ambiguous position and working through the tensions to provide the best possible service to their patients. this does include the possibility of imprisonment due to the background given by the 1861 oapa, but more so a struggle with the framework of ‘gatekeeper’ experienced as placing unnecessary burdens on the best sort of care. whilst the structure of the law in america, and especially within the states that only allow therapeutic abortions is different to that of abortion law in england and wales there is a key similarity, medical professionals face the uncertainty on whether they can be accused of breaking the law by providing a termination of pregnancy. in recent years the values and practices of doctors who provide abortions in england and wales have been questioned. doctors found themselves at the center of a series of claims that stated doctors were acting both illegally and immorally. additionally, "british politicians have sought to intrude into issues of abortion-related clinical practice, fueling concerns that abortion is unsafe and poorly regulated" (furedi, 2014: 6). as a result of these concerns "abortion providers have faced a barrage of attacks on their businesses and reputations, and those working in the field have had to expend a great deal of time and energy fighting and defending their practices" (bristow, 2014: 42-43). as with american abortion providers who are now expressing concern over the lack of protection by the law to allow them to provide safe and legal abortions, medical professionals who provide abortions in england and wales also express a sense of vulnerability around the legal framework of abortion. the 'sex-selection scandal' of 2012, saw doctors facing criminal charges for agreeing to provide an abortion to an undercover journalist based on a heavily edited video footage reported in the british press. additionally, "overt threats [were made] about prosecuting doctors were made by senior governmental ministers" (lee, 2017: 17). one of the consequences of the sex-selection investigations was that it "heightened the idea that providers felt quite fearful" (lee, sheldon and macvarish, 2018: 31). furthermore, it highlighted to providers that "the government couldand in this instance, would interpret the law rather differently that it had for over a decade, leaving doctors at risk of professional investigation and criminal prosecution" (bristow, 2012: 43). as a result of this period where both, doctors were accused of acting illegally, faced with the very real threat of prosecution. my interviewees reflected directly on the ambiguous position they find themselves in, whereby they are given the responsibility of gatekeeping legal abortion, but also find themselves experiencing a strong sense of fear of prosecution. mark (a provider in england) drew attention to the exceptionality surrounding the regulation of doctors who provide abortion, when he explained "the only branch of medicine where if you don't get the paperwork right, you're breaking the law." mary, was very concerned when she told me that doctors "are humans" and continued that "they do make mistakes. so as long as abortion is in criminal law, we are going to have that, unfortunately". a sense of vulnerability was communicated by these that doctors when thinking about the consequences of providing abortions because of the fear of prosecution. the unique position of the abortion provider in england and wales also increases their stigmatisation. this emerged when participants discussed their personal experiences with medical colleagues and people from the wider community. the majority of doctors i interviewed expressed a mixture of feeling both proud and stigmatised in relation to their occupation, suggesting a specific form of professional identity. they each have their own moral story about why they chose to become an abortion provider, but one of the biggest underlying drivers for participants was a sense of moral duty to "do much better" than the services they saw being provided during their medical training. however, whilst these doctors were proud of the work they do, they also expressed a concern about who, outside of their immediate family and colleagues knew about their participation in termination of pregnancy services. one participant said, "very, very, very few doctors introduce themselves as abortion doctors or termination specialists" because "it still carries a negativity to it." this was a common theme amongst interviewees. rebecca also mentioned the idea that abortion doctors are part of a disparaged group of medical professionals, telling me that she is "very careful about whom i tell. i don't tell many people that i work in a termination service". the decision not to tell people about their work in this service was reiterated by a further participant who said, "i think it's fair to say you don't readily talk about what you do". doctors who work in the abortion service find themselves in an ambiguous position because they work in a highly skilled profession traditionally seen as having high social status with high control levels (jones, 2011). yet, unlike most other groups of doctors, those working in the abortion service work in a low-status branch of medicine. they can experience being marginalised and stigmatised for their role and they have very little control over service provision because of the legal framework. as a result, many of these doctors had adopted an identity where they were privately proud of their role in the termination of pregnancy services, while being cautious about who outside of their immediate family knew about their work. alongside the sense of pride that doctors described whilst talking about their work as a doctor who provides abortion, interviewees often told me that they were motivated to become abortion providers because of situations they had experiences where medical colleague or mentors has treated people looking for a termination of pregnancy, to their minds, unfairly. for example, one doctor, who was working in a country where abortion was illegal at the time, recalled seeing "wards that were full of septic women because they'd had illegal abortions… women die[d] from stuffing stuff in their vaginas [such as] twigs, metal instruments." many participants had their own version of stories such as this one, whilst most of the reasons for deciding to work providing termination of pregnancies could be considered less extreme than the example above there was an overwhelming majority of participants who told me that part of their reasoning for providing abortions because they felt passionately about "bringing justice to women through health" and "to be a… positive change in peoples lives". as a result, participants believed that it was their responsibility to provide the care that they felt their patients deserved. existing literature, such as by dickens and cook (2011), suggests that this "conscientious commitment to undertake procedures to protect women's health often arises in response to other practitioners' failures or refusals to provide care" (dickens and cook, 2011: 164). these doctors distanced themselves from the values of their medical colleagues and instead formed a professional identity around a strong sense of commitment to women's autonomy. these doctors told stories that portrayed themselves as moral workers fighting to protect the interests of women from other medical professionals who see them as in some way undeserving of care. the decision to reverse roe v. wade has been described as a "direct attack on the practice of medicine and the patient-physician relationship, and a brazen violation of patients' rights to evidence based reproductive health services" by the president of the american medical association, jack resneck, jr (tanne, 2022). i suggest that this direct assault on the professional identity of doctors who have a conscientious commitment to protecting the right to choose when to have a safe and legal abortion will result in the creation of tensions between the medical professionals and the legal framework they are now working within. these doctors now face many tough decisions on their future as an abortion provider. news articles that have been reporting on the medical professions response to the reversal of roe vs wade have noted that doctors are finding new ways to work within the service. for example, the chief program officer of the national abortion federation found that medical professionals have "started advancing and accelerating their plans to find work in other states" with "more doctors, nurses and other-front line health care workers looking for part time travel work" (ollstein, 2022). alternatively, some healthcare professionals are preparing for the consequences of working in post-roe. for example, a doctor in ohio said that she is going to stay working in ohio because: there's going to be a need for aftercare for people who have managed their abortion outside the healthcare… we're still hoping that there will be exemptions for threats to the health of the mother. if someone has an emergency at 20 weeks, there are not a lot of people who know how to quickly end a pregnancy. so, i want to be here for that. (ollstein, 2022). i believe that both examples of medical professionals looking to re-locate to provide abortion services or choosing to continue caring for patients who have complications from an unsafe abortion is a sign that these doctors will find new ways to work within the tensions created by the change in the law. these healthcare professionals will not give up or reconstruct their professional identity without resistance. instead, like doctors working in england and wales they will find ways to work around the legal limitations. in the form of either working within their home states providing care for women needing therapeutic abortions or through relocating to a state where they can legally provide abortions. references bristow, j. (2014). conspiracy or confusion? abortion politics in britain. reproductive review. bristow, j. (2012) conspiracy or confusion? abortion politics in britain. conscience: the new journal of catholic opinion. xxiv(1), pp. 42-144. buchbinder, m. (2022), dirty work in medicine: understanding u.s. physicians’ agency in contested medical practices. medical anthropology quarterly [online] available at https://doi.org/10.1111/maq.12720 [accessed on 01/09/2022]. dickens, b. and cook, r. (2011). conscientious commitment to women's health. international journal of gynecology & obstetrics, 113(2), pp. 163-166. furedi, a. (2014). the barrier to abortion is politics. journal of family planning and reproductive healthcare, 40, pp. 5-7. jones, e.l. (2011). attitudes to abortion in the era of reform: evidence from the abortion law reform association correspondence. women's history review, 20(2), pp. 283-298. keown, j. (1988). abortion, doctors and the law: some aspects of the legal regulation of abortion in england from 1803 to 1982. cambridge: cambridge university press. lavalette, m., beddoe, l., horgan, g. and sewpaul, v. (2022) abortion rights and roe v wade: implications for social work – voices from the social work academy. [online] critical and radical social work, 1–8, available at: doi: 10.1332/204986021x16608280244818 [accessed 01/09/2022]. lee, e. sheldon, s. and macvarish, j. (2018). the 1967 abortion act fifty years on: abortion, medical authority and the law revisited. social science & medicine, 212, pp. 26-32. lee, e. (2017). constructing abortion as a social problem: "sex-selection" and the british abortion debate. feminism and psychology, 27(1), pp. 15-33. ollstein, a. (2022). abortion doctors’ post-roe dilemma: move, stay or straddle state lines. politico. [online]. 29/06/2022. available at https://www.politico.com/news/2022/06/29/abortion-doctors-post-roe-dilemma-move-stay-or-straddle-state-lines-00040660 [accessed 15/09/2022]. sheldon, s. (1997). beyond control medical power and abortion law. london: pluto press. simmons-duffin, s. (2022). doctors weren't considered in dobbs, but now they're on abortion's legal front lines. npr. [online]. 03/07/2022. available at https://www.npr.org/sections/health-shots/2022/07/03/1109483662/doctors-werent-considered-in-dobbs-but-now-theyre-on-abo [accessed 01/09/2022]. tanne, j. (2022). roe v wade: medical bodies declare support for abortion rights, as doctors and states face confusion. bmj. -(o1643), p.378. [online]. available at: https://doi.org/10.1136/bmj.o1643 [accessed 15/09/2022]. __________________________________________________________________________________ 10 __________________________________________________________________________________ 11 feminists@law, vol.3, no.1 (2013) michelle weldon-johns, 'modern workplaces and modern families: revising the work-family concept' this is an audio recording of michelle weldon-johns's paper delivered as part of the 'families and work' theme at the slsa annual conference, university of york, 27 march 2013. the paper argues that government policy on balancing work and family lives needs to move away from its focus on traditional male breadwinner and dual breadwinner families to embrace a wider understanding of the family. the conference theme was organised by the families and work network (fawn), and further information can be found on the fawn website. dr michelle weldon-johns is a lecturer in the law division, dundee business school, university of abertay dundee. lloyd palestine is a feminist issue… _________________________________________________________________________________________________________ feminists@law vol 4, no 1 (2014) _________________________________________________________________________________________________________ it is our belief that palestine is a feminist issue.... david lloyd[footnoteref:1]* [1: * distinguished professor of english at the university of california, riverside, usa, and a founding member of the us campaign for the academic and cultural boycott of israel.  email david.lloyd@ucr.edu. he has published numerous articles on palestine and israel, including “in the long shadow of the settler: on israeli and us colonialisms”, written with laura pulido, in audrea lim, ed, the case for sanctions against israel (london: verso press, 2012) and “settler colonialism and the state of exception: the example of israel/palestine” in the journal of settler colonial studies 2.1 (2012) http://www.tandfonline.com/doi/abs/10.1080/2201473x.2012.10648826#.u2f5i9xblcg.  he has also published with malini johar schueller an essay on the rationale for the academic boycott of israel in the aaup’s journal of academic freedom http://www.aaup.org/reports-publications/journal-academic-freedom/volume-4#response.  lloyd works primarily on irish culture and on postcolonial and cultural theory. his most recent book is irish culture and colonial modernity: the transformation of oral space (cambridge university press, 2011). my thanks to brenda bhandar, nadine naber and nadera shalhoub-kevorkian for help in shaping and revising this introduction. ] so long as antiwar activists denounce the u.s. occupation of iraq, but not israel’s occupation of palestine, i will keep drawing the parallels. so long as western feminists denounce the oppression of arab women as a result of islamic fundamentalism, but not as a result of israeli occupation, i will raise my voice. i will explain that palestinian women are without any doubt more oppressed by israel and zionism than they are by their fellow palestinian men, that a palestinian woman’s freedom of movement, her right to an education, her right to vote, her right to work, her right to live where she wants, her right to sufficient food, clean water, and medical treatment in her own homeland are denied to her not by her fellow palestinians but by the illegal occupying power, israel.[footnoteref:2] [2: nada elia, “the burden of representation: when palestinians speak out”, in rabab abdulhadi, evelyn alsultany, and nadine naber, eds, arab and arab-american feminisms: gender, violence, and belonging (syracuse, ny: syracuse university press, 2011), p. 158.] in 1980, when irish republican women in northern ireland’s armagh gaol had gone on a “no-wash or dirty protest” against strip searching that they defined as rape, irish journalist nell mccafferty published an article in the irish times that opened: “it is my belief that armagh is a feminist issue.”[footnoteref:3] the now celebrated article was motivated by the indifference, and sometimes explicit antagonism of most british and irish feminist organizations to the plight of these female political prisoners because the nature of their political struggle—which had been criminalized by british counter-insurgency policies—was not expressly feminist. mccafferty argued that the violation of the integrity of women’s bodies that strip-searching inevitably involved constituted an issue that was indubitably a matter of concern to any feminist. as we might now say, and as feminist sociologists like mary corcoran have since shown in considerable detail, the treatment of women political prisoners in armagh was a manifestation of the structural violence of a political regime which, while it impacted every member of the nationalist minority irrespective of gender, affected with concentrated impact the daily lives of women, political activists or not.[footnoteref:4] [3: nell mccafferty, “it is my belief that armagh is a feminist issue”, irish times, 17 june 1980.] [4: mary corcoran, out of time: the political imprisonment of women in northern ireland, 1972-98 (portland, or: willan publishing, 2006).] it is time for a similar statement regarding palestine and the movement for boycott, divestment and sanctions (bds)[footnoteref:5] which, since it was called for in 2003 by some 170 palestinian civil society organizations—including virtually every palestinian women’s organization—has proliferated globally. it is our belief that the palestinian struggle and the campaign for boycott, divestment and sanctions is a feminist issue. it may be, indeed, above all a feminist issue. yet, despite the increasingly broad appeal of this non-violent and rights-based movement, its implications for both global feminist solidarity work and for feminist social and political analysis have not become generally appreciated. while a number of academic associations, in the united states and elsewhere, have endorsed an academic boycott, they have largely done so in the name of anti-racist or anti-colonial solidarity. to date, apparently, no major western women’s or feminist organization has declared its solidarity with the palestinian struggle. where this is not symptomatic of explicitly zionist sympathies on the part of some feminists,[footnoteref:6] the lack of open feminist solidarity with palestine may be in large part a consequence of the success of state-driven israeli messaging that nadera shalhoub-kevorkian here describes, which depicts israel as a liberal, democratic society that is exceptional in the middle east for its openness to women’s emancipation and full participation in social and political spheres. what is in effect a propaganda or hasbara campaign of “feminist-washing”, akin to the “pink-washing” campaigns whose contradictions brenna bhandar discusses in her contribution, is shadowed by its implicit islamophobia: it always implies the essential incompatibility of arab and muslim societies with women’s emancipation, as it argues their incapacity for democracy, while occluding the deeply heteropatriarchal and homonational elements basic to israeli state formation. furthermore, as shalhoub-kevorkian argues, the orientalist assumptions about arab society that underlie both forms of normalization of israel actually endorse and exacerbate patriarchal elements within palestinian society. [5: see http://www.bdsmovement.net/ (accessed 26 april 2014).] [6: see elia, “the burden of representation”, pp. 141-58.] to some degree, such attitudes may also still inform some western feminists’ lack of explicit engagement with the palestinian struggle, compounded by the long and vexed history of nationalist movements’ frequent marginalization of women as agents and of feminist issues as subsidiary to the national struggle. ironically, however, if feminists are leery of giving support to a palestinian liberation movement often defined in nationalist terms, their reluctance to do so tacitly lends their support to another and more powerful nationalism, that of zionism. but to consider palestine simply in the light of older decolonizing movements is to miss the significance of the new conjuncture within a longer history of colonialism and of heteropatriarchal modes of social control that israel’s system of domination represents. as a settler colony, israel depends on and deploys strategies of domination that, as rana sharif and nadera shalhoub-kevorkian show, are deeply structured by the gendered relations of power typical of colonial societies. these modes of domination present a peculiarly urgent field of theorization and of practical reconsideration for feminism, representing as they do a reconfiguration of modes of biopower that draws into the core of the neo-liberal state the colonial operations of processes that both sharif and shalhoub-kevorkian here invoke under the name of necropolitics. and, much as it has functioned as a laboratory for technologies of militarized repression and surveillance that have found increasingly widespread application in population control and policing from the us border to brazilian favelas, israel also offers a telling body of insight into emerging modes of biopolitical practice and necropolitical regimes that intervene in what i would term the expanded sphere of reproduction.[footnoteref:7] [7: for further on israel’s punitive necropolitical regime, see nadera shalhoub-kevorkian, “the grammar of rights in colonial contexts: the case of palestinian women in israel”, middle east law and governance 4 (2012), pp. 106-151. for various approaches to israel’s critical role in the development of technologies of policing and surveillance, and to their global deployment, see, among others, naomi klein, “losing the peace incentive: israel as warning”, in the shock doctrine: the rise of disaster capitalism (new york: picador, 2007); eyal weizman, interviewed by philipp misselwitz, “military options as human planning”, in eduardo cadava and aaron levy, eds, cities without citizens (philadelphia: slought books, 2003), pp. 167-99. one of the most recent and most direct connections between us and israeli technologies is the israeli corporation elbit systems’ large and lucrative contract with the department of homeland security to supply the surveillance infrastructure along the us border with mexico—a project that will directly affect the lives and movements of both economic migrants and of indigenous peoples who have traditionally moved fluidly across the zone divided by the frontier: see gabriel schivone, “how israel’s war industry profits from violent us immigration ‘reform’”, http://electronicintifada.net/content/how-israels-war-industry-profits-violent-us-immigration-reform/13283 (accessed 26 april 2014).] in his indispensable work, israel’s occupation, neve gordon argues that in the wake of the second intifada that broke out in september 2000, israel’s control over the west bank shifted “from the principle of colonization to the principle of separation.”[footnoteref:8] this entailed equally “a radical de-emphasis of disciplinary power and the accentuation of a particular kind of sovereign power, which in many respects disregards the law”:[footnoteref:9] as he puts it, “in place of the politics of life that had characterized the ot (occupied territories) until the second intifada, a politics of death slowly emerged.”[footnoteref:10] gordon does not examine in any depth, however, the quite exceptional degree to which this shift from the biopolitical mode, in which israel as a colonizing power still regarded itself as responsible (as under the geneva conventions it is in fact obliged to be) for the continuing welfare of the occupied population, to the necropolitical exercise of the sovereign power to take life, which targets the most fundamental forms of reproduction of palestinian life. [8: neve gordon, israel’s occupation (berkeley, ca: university of california press, 2008), p. 199] [9: ibid, p. 201.] [10: ibid, p. 207.] what is implied here, drawing on the work of marxist theorists like louis althusser and materialist feminists like leopoldina fortunati, is an expanded conception of reproduction that includes not only the biological reproduction of life—birth, nurture, and the maintenance of health—or of mere labour power, but the reproduction of social and cultural relations of every kind. althusser refers to this in limited fashion as “the reproduction of the conditions of production”, that is, not only of the “forces of production” (labour power), but also of “the existing [social] relations of production”.[footnoteref:11] fortunati in turn points out that this separation of production from reproduction is the foundation of “the sexual division of labor”, within which the work of reproduction performed overwhelmingly by women appears as the “natural force of social labor”.[footnoteref:12] insofar as the reproduction of labor takes place through the family, it draws into it the affective as well as the purely economic relations among individuals, those relations in which “nature” takes on the form of the social and the cultural.[footnoteref:13] the conception of reproduction in this expanded sense transforms the sphere of reproduction from a function and space marginal to capital into one of primary contradictions and therefore of struggle. in the colonial sphere, i would argue, an expanded conception of reproduction designates the whole domain of the social, the cultural and the affective as principal sites of struggle insofar as they bring into play not only the productive capacities of the colonized—those capacities that, as gordon demonstrates, the israeli state in the mode of discipline and biopower sought to exploit in the form of palestinian labor—but their very survival as a “form of living”, precisely that which is targeted by the “sovereign power” of the new israeli mode of domination. this is, no less than the capitalist sphere of reproduction, a mode of domination in which—as shalhoub-kevorkian here shows in painful detail—those who bear the brunt of its violence and the burden of survival are women. [11: louis althusser, “ideology and ideological state apparatuses: notes towards an investigation”, in lenin and philosophy and other essays (new york: monthly review press, 1971), pp. 127-8.] [12: leopoldina fortunati, the arcane of reproduction: housework, prostitution, labor and capital, trans. hilary creek (new york: autonomedia, 1995), pp. 13-14.] [13: ibid, chapter 11.] the transition from a biopolitical state to one of sovereign power, as gordon describes it, is not an historical accident contingent on an unfolding “conflict”, but is, rather, symptomatic of the fundamental contradictions of israel’s settler colonial regime, as bhandar describes it in her contribution. even before the institution of the state of israel in 1948, which entailed the expulsion of three-quarters of a million palestinians, zionists had considered the existing palestinian population a demographic threat to the exclusively jewish character of the state they imagined. as david ben-gurion saw it, a state that had more than 20% arab population would be unviable.[footnoteref:14] even without the intifadas, israeli dependence on the exploitation and reproduction of palestinian labor power would ultimately have been in unsustainable contradiction to the zionist project precisely because—as the intifadas demonstrated—the israeli effort to assimilate palestinians within a colonial state through the normalization of the occupation had failed.[footnoteref:15] the evident capacity of the palestinians to reproduce their culture and society—their samoud, or persistence—as a form of living distinct from and oppositional to the zionist state and society would require their erasure rather than their adjustment to a normalized occupation. [14: david ben-gurion, cited in ilan pappé, the ethnic cleansing of palestine (oxford: one world publications, 2006), p. 250. pappé’s book gives a detailed history of the planning and execution, of the expulsion of the palestinians in 1948 and its aftermath.] [15: see gordon, israel’s occupation, p. 151 and chapter 6, passim.] but the corresponding shift from a biopolitical to a necropolitical state was by no means a radical departure, but rather the intensification of a process that had been continuous, as shalhoub-kevorkian maintains, since israel’s inception in the varying forms of ethnic cleansing (or “transfer”), separation and containment through the fragmentation of palestinian territory, denial of freedom of movement, including access to basic resources like farmland or schooling, denial of access to fundamental services, from healthcare to adequate housing or water supplies, denial of the right to family unification or to return freely to one’s place of origin, denial on an arbitrary basis of permits of all kinds, including the right to travel or to access healthcare or schooling to which one is formally entitled. indeed, as rana sharif points out,[footnoteref:16] it is frequently the right of access to fundamental services that are theoretically granted by israel—and which it holds out as indices of the benevolence of its regime—that is withheld. as one of her seriously ill interviewees relates of his attempt to obtain routine treatment: [16: see rana sharif, “bodies, buses, and permits: palestinians navigating care” in this issue.] the palestinian [office] handed the application over to the israeli [hdca]. upon reporting to the palestinian [office] on the second day, my wife was told that the israeli side was still examining the issue from a security perspective. therefore, i lost my appointment. because an alternative treatment is not available in the west bank hospitals, my health condition has deteriorated. for all the aggravating pettiness of such routine denials—and they are innumerable in the experience of palestinians—their cumulative intent is clear: to make palestinian life intolerable and unsustainable and resistance accordingly unviable. and, as sharif’s account here indicates, even where the principal victim may appear to be male, it is a palestinian woman who confronts and bears israel’s relentless assault on the palestinian sphere of reproduction. angela davis has written eloquently of the ways in which the formations both of slavery and of the era of supposed emancipation impacted the social and cultural structures of african american life in ways that had peculiar effect on black women, precisely to the extent to which “unfreedom” shaped the affective and institutional sphere of reproduction or “family-support systems”.[footnoteref:17] by the same token, the israeli assault on palestinian life, on its capacity for reproduction, although it affects every palestinian regardless of gender or sexuality, falls with particular weight upon women. of course, the israeli regime, predicated as it is on the essentially exclusionary preservation and promotion of the “jewish character of the state”, is gendered and racialized at every level in ways that do not target palestinians alone. immigration law is profoundly discriminatory not only against palestinians, but also against migrants whose labor has increasingly displaced that of palestinian workers since the second intifada. notoriously, black migrants from north and east africa have been repelled or interned as “infiltrators”, under the recently amended prevention of infiltration act of 1954,[footnoteref:18] a law originally directed at palestinians, and that continues to be applied, for example, both to bedouins in the naqab or to palestinians from gaza who seek to continue their studies in west bank universities. on the other hand, immigrant workers from, for instance, the philippines, usually concentrated in health and domestic care, are permitted to come on short term visas, and normally only if they are single and do not have children. those who become pregnant while in the country may be expelled, for fear that their non-jewish children would be able to claim the right of citizenship and “flood the foundation of the zionist state."[footnoteref:19] at the same time, palestinian workers are permitted to enter israel or its illegal settlements on the west bank only on condition of being a married father over the age of 35.[footnoteref:20] palestinians who are citizens of israel have, as bhandar notes, been deprived of the right to family unification under the citizenship and entry into israel law of 2003, which bans palestinians from outside israel from gaining residency through marriage to an israeli (a law comparable to one that even the south african supreme court balked at accepting). meanwhile filipinas who marry israeli men may become citizens if they convert to judaism. a complex network of differential and differentiating laws thus governs the various populations of israel and its occupied territories.[footnoteref:21] [17: angela davis, blues legacies and black feminism: gertrude “ma” rainey, bessie smith, and billie holiday (new york: vintage books, 1998), pp. 11 and 84] [18: see http://www.haaretz.com/news/national/israel-enacts-law-allowing-authorities-to-detain-illegal-migrants-for-up-to-3-years-1.434127 (accessed 26 april 2014)] [19: bill van esveld and allie chen, “israel should respects rights of migrant workers”, http://www.hrw.org/news/2010/10/08/israel-should-respect-rights-migrant-workers (accessed 26 april 2014). ] [20: alon aviram, “palestinian employment: the phantom workers of israel”, http://972mag.com/palestinian-employment-the-phantom-workers-of-israel/61526/ (accessed 26 april 2014).] [21: for an extended discussion of the impact of israeli laws on migrant workers, see allan isaac, nadine naber, and sarita echavez see, “filipino workers in the middle east: frictive histories and the possibilities of solidarity”, center for art and thought (spring-fall 2013), http://www.centerforartandthought.org/work/project/dialogues. ] the effect of israel’s “low-intensity warfare” against the persisting palestinian communities in areas targeted for israeli expansion or for “judaization” falls, however, with especial weight on women. its manifestations range from the very literal destruction of the domestic space through demolition or eviction, usually under discriminatory legal pretexts and even including the demolition of entire villages and areas defined as “unrecognized villages” in the naqab, to the brutal denial of access to essential and often urgently needed care.[footnoteref:22] nadera shalhoub-kevorkian documents in often painful detail the impact on palestinian women of israel’s will to contain and reduce the palestinian population in east jerusalem in particular (an area currently targeted with particular intensity for settlement expansion, given israel’s determination to appropriate this historically palestinian city as part of its “eternal capital”). its impact ranges from the extremist “price tag” campaign that targets all palestinians with vindictive violence,[footnoteref:23] to the eviction of families from homes they have occupied for decades, with deeply traumatic effects on children. as saree makdisi explains, citing amnesty international, “the deliberate demolition of palestinian homes is a long-standing israeli policy” and one that is “not justified by military necessity.”[footnoteref:24] these assaults on palestinian daily and domestic life, which extend to the often fatal denial of essential treatment to pregnant women, as if in an effort to target the literal biological reproduction of palestinian life, have shaped, shalhoub-kevorkian argues, a “death zone” for palestinians that has peculiar impact on women even if it is one part of a larger, ongoing process of dispossession that bhandar here sees as continuous with settler colonialism practices elsewhere.[footnoteref:25] this death zone, the material instance of what sharif, citing achille mbembe,[footnoteref:26] calls the “necropolitical state”, is the space where the biological, material and cultural reproduction of palestinian social life is put at daily and intimate risk. [22: for a detailed account of the impact on bedouin women of such demolition and eviction in the naqab (or negev) and of their resistance, see shalhoub-kevorkian, “the grammar of rights”, passim.] [23: see, eg, http://www.btselem.org/settler_violence (accessed 30 april 2014). ] [24: saree makdisi, palestine inside out: an everyday occupation (new york: ww norton, 2008), pp. 109-10.] [25: see also nadera shalhoub-kevorkian, “reexamining femicide: breaking the silence and crossing ‘scientific’ borders” in signs, vol. 28, no. 2 (winter 2003), pp. 581-608.] [26: achille mbembe, “necropolitics”, in public culture, vol. 15, no. 1 (2003), pp. 11–40.] israel’s war against the continuance of palestinian life targets women in every sphere. certainly it targets women as potential or actual agents of the reproduction of life itself, as mothers and as caretakers, but it also targets women as reproducers of social and cultural life, as if the targeting of women—as so often in colonial regimes—were understood to be the royal road to the destruction of indigenous social and political life.[footnoteref:27] living under israeli occupation or within the borders of its racial state has been devastating for all palestinians, but is especially destructive for palestinian women as the essays collected here all demonstrate. if, as shalhoub-kevorkian argues, the analysis of the larger “physics of power” that organizes the settler colonial project of zionism is essential to any feminist understanding of the condition of palestinian women and of the nature of their struggle, it is no less the case that the same structures of domination must be analyzed and contested from a feminist standpoint. this is, in bhandar’s words, a fundamental task of any “anti-colonial, feminist politics of solidarity”.[footnoteref:28] feminism, according to shalhoub-kevorkian, “entails understanding the nature and significance of solidarity with the dispossessed, something that global feminism, international law, and israeli feminism have so far failed to do” in the case of palestinian women.[footnoteref:29] [27: cf frantz fanon, “unveiling algeria”, in a dying colonialism, trans. haakon chevalier (new york: grove press, 1967), pp. 35-67; and andrea smith, conquest: sexual violence and american indian genocide (boston: south end press, 2005).] [28: brenna bhandar, “some reflections on bds and feminist political solidarity” in this issue.] [29: nadera shalhoub-kevorkian, “palestinian feminist critique and the physics of power: feminists between thought and practice” in this issue.] palestinian women’s and feminist groups, including the general union of palestinian women (gupw) and palestinian federation of women’s action committees (pfwac), have been an integral element of the palestinian call for bds against israel since its inception. this non-violent and human rights-based campaign makes three basic demands of israel, calling for broad boycotts and divestment initiatives against israel until it meets its obligations under international law by: 1. ending its occupation and colonization of all arab lands and dismantling the separation or apartheid wall; 2. recognizing the fundamental rights of the arab-palestinian citizens of israel to full equality; 3. respecting, protecting and promoting the rights of palestinian refugees to return to their homes and properties as stipulated in un resolution 194.[footnoteref:30] [30: see http://www.bdsmovement.net/call (accessed 26 april 2014).] the guidelines for the implementation of bds measures are deliberately flexible and context-sensitive, allowing for local solidarity organizations to determine the most effective measures to pursue in any given situation. actions have ranged from consumer boycotts of agricultural products grown in settlements on the west bank, to campaigns against companies like veolia, which runs transport systems in occupied east jerusalem and bus routes and waste disposal facilities in the settlements; from divestment campaigns by churches or universities that target corporations who profit from the occupation, like caterpillar, elbit systems, or hewlett-packard, to demands for the suspension of contracts with firms like global security company g4s that runs israeli political prisons and engages in the torture of prisoners.[footnoteref:31] one cornerstone of the bds campaign in recent years has been the boycott of israeli academic institutions,[footnoteref:32] a specific campaign that has been endorsed by an increasing number of academic associations, from the teachers’ union of ireland[footnoteref:33] to the us american studies association,[footnoteref:34] or supported by more specific measures, like the royal institute of british architects (riba)’s passage of a motion urging the international union of architects to suspend the israeli association of united architects (iaua) from the world body of architects, the international union of architects (uia).[footnoteref:35] [31: the organization who profits?, http://www.whoprofits.org, maintains regularly updated information on corporations that do business with and profit from the occupation.] [32: see http://www.pacbi.org/ (accessed 26 april 2014).] [33: see http://www.ipsc.ie/press-releases/teachers-union-of-ireland-calls-for-academic-boycott-of-israel-in-unanimous-vote-first-academic-union-in-europe-to-do-so (accessed 26 april 2014).] [34: see http://www.theasa.net/american_studies_association_resolution_on_academic_boycott_of_israel (accessed 26 april 2014).] [35: see http://www.pacbi.org/etemplate.php?id=2399&key=architects (accessed 26 april 2014).] much as the sports and cultural boycott of south africa had an impact on the apartheid regime out of all proportion to any economic impact it could have, the academic boycott is of particular significance in targeting a core element of israel’s efforts to normalize its regime of occupation and apartheid by projecting the image of its liberal and democratic institutions and by integrating its intellectual and research agendas with academic institutions in the united states and europe. critics of the academic boycott campaign frequently argue that targeting universities and academics threatens to isolate one principal space where dialogue and the critique of israeli state practices take place. they ignore the fact that the boycott does not target individual academics, but specifically academic institutions, which, far from being sites of liberal critique, are deeply complicit in maintaining the technical and research infrastructure of the occupation.[footnoteref:36] their assertion that the academic boycott undermines the possibility of dialogue is strikingly belied by the fact that in the wake of recent endorsements by academic associations in the united states, public debate on palestine and israel has opened up to an unprecedented degree in virtually every medium, from the blogosphere to mainstream media, despite vigorous efforts on the part of the israeli lobby to censor and stifle debate.[footnoteref:37] this outcome has been a singular and important effect of bds, a civil society movement necessitated by the exceptional closure of the public and political spheres in the us and europe to any critical discussion, let alone sanction of, israel’s ongoing breaches of international law and human rights conventions. this is a movement that has begun to correct what shalhoub-kevorkian here refers to as the long-standing practice of “invisibilizing palestine”, evicting it from the public sphere. [36: a detailed report on the collaboration of israeli institutions with the occupation and other apartheid practices is available from the israeli-palestinian alternative information center, http://www.alternativenews.org/english/index.php/component/content/article/103-topics/news/980-the-case-for-academic-boycott-against-israel-980. information on discrimination against palestinians in israeli academia is provided by the academic watch project of al-rased: http://alrasedproject.wordpress.com/2013/02/06/1/] [37: see steven salaita, “academics should boycott israel: growing movement takes next step”, http://www.salon.com/2013/12/04/academics_should_boycott_israel_growing_movement_takes_next_step/ (accessed 26 april 2014).] it is significant that the first us academic association to endorse the academic boycott was the association for asian american studies, and that those that followed included the native american and indigenous studies association and the american studies association. all are associations whose members have a long history of analysis and critique of imperialism, settler colonialism and the racial state. all voted to endorse the boycott as an act of solidarity, recognizing that what they were doing was not singling israel out, as some argue—a misconception that bhandar here critiques—but rather recognizing that israel’s colonial project is continuous with and a crucial model for the ongoing racial domination that characterizes the era of neo-liberalism. their solidarity with palestine did not eclipse their concern with racial oppression in their own colonial or racial-state contexts, but enhanced their analysis and linked their concerns to the global network of power, accumulation by dispossession, hetero-patriarchal and racial domination, and technologies of control within which israel is a crucial node. indeed, many proponents of the boycott at these associations saw in both the debates it occasioned and in the engagement of scholarship with political solidarity a moment of renewal of their faith in intellectual work.[footnoteref:38] the argument made by the participants in this forum is that feminist movements, and feminist scholars within the academy internationally, likewise stand to gain from a commitment to solidarity with the palestinian struggle. [38: see david lloyd, “the taboo on boycotting israel has been broken”, http://electronicintifada.net/content/taboo-boycotting-israel-has-been-broken/12949 (accessed 26 april 2014).] _________________________________________________________________________________________________ 18 _________________________________________________________________________________________________ 1 /docprops/thumbnail.wmf feminists@law vol 4, no 1 (2014) _________________________________________________________________________________________________________ _________________________________________________________________________________________________ 1 it is our belief that p a lestine is a feminist i ssue.... david lloyd * so long as antiwar activists denounce the u.s. occupation of iraq, but not israel’s occupation of palestine, i will keep drawing the parallels. so long as western feminists denounce the oppression of arab women as a result of islamic fundamentalism, but n ot as a result of israeli occupation, i will raise my voice. i will explain that palestinian women are without any doubt more oppressed by israel and zionism than they are by their fellow palestinian men, that a palestinian woman’s freedom of movement, he r right to an education, her right to vote, her right to work, her right to live where she wants, her right to sufficient food, clean water, and medical treatment in her own * distinguished professor of english at the university of california, riverside, u s a , and a founding member of the us campaign for the academic and cultural boycott of israel. e mail david.lloyd@ucr.edu . he has published numerous articles on palestine and israel, i ncluding “in the long shadow of the settler: on israeli and us colonialisms”, written with laura pulido, in audrea lim, ed, the case for sanctions against israel (london: verso press, 2012) and “ settler colonialism and the state of exception: the example o f israel/palestine” in the journal of settler colonial studies 2.1 (2012) http://www.tandfonline.com/doi/abs/10.1080/2201473x.2012.10648826#.u2f5i 9xblcg . he has also published with malini johar schueller an essay on the rationale for the academic boycott of israel in the aaup’s journal of academic freedom htt p://www.aaup.org/reports publications/journal academic freedom/volume 4#response . lloyd works primarily on irish culture and on postcolonial and cultural theory. his most recent book is irish culture and colonial modernity: the transformation of oral spac e (cambridge university press, 2011). my thanks to brenda bhandar, nadine naber and nadera shalhoub kevorkian for help in shaping and revising this introduction. constructions of normality and the boundaries of social citizenship – solo mothers in the swedish welfare model wennberg constructions of normality and the boundaries of social citizenship feminists@law vol 2, no 1 (2012) constructions of normality and the boundaries of social citizenship – solo mothers in the swedish welfare model lena wennberg* introduction the swedish welfare model has been characterised by a comprehensive normative structure which is residence-based and gender-neutral. the system is founded on general principles of solidarity and public responsibility, rather than particular rights and individual interests. today however, there is a movement from the substantial welfare regimes modelled on the nation-state to anti-discrimination and individual rights claims in the context of the eu. this change reveals certain areas of inconsistency between the notion of social rights in the context of the eu and in the context of the swedish welfare state. a significant question is what consequences the development of social rights based on the liberal tradition of human rights instruments in europe will have for social rights in the solidarity-based discourse in the swedish welfare regime. whether social rights are seen as human rights or as welfare state responsibilities makes a significant difference to the way that discrimination as a lack of equality is regarded. in sweden extensive welfare policies have given the impression of overall equality and social citizenship. the concept of ‘social citizenship’ is commonly used, not always explicitly but in substance, in analysing gender, equality, and welfare regimes (gunnarsson, 2007; hirschman and liebert, 2001; lister, 2003). the starting point in this paper is that the welfare system can degrade, improve and reflect gender inequality. from this point of view, gender equality needs to be seen as a question of substantive equality, that is, of becoming equal in the material sense. this means that gender equality cannot only be seen in the formal sense as a question of equal rights and protection against discrimination. a feminist evaluation of the principle of gender equality therefore also needs to be linked to social rights and duties in the welfare state, including the distributive principles and participatory conditions which enable membership in a society. the socially and financially disadvantaged situation of women who are living on their own with children has already been demonstrated empirically in various disciplines (brodolino, 2007; bradshaw et al., 1996; duncan and edwards, 1997, 1999; gähler, 2001; hobson and takahashi, 1997; hobson, 1994; lewis, 1997; sainsbury, 1996). their situation reflects one aspect of the logic of separation that segregates and makes women’s life experiences invisible in law (svensson 1997, p. 53-69). these mothers appear as a category in policy discourse, most often as a problem or a risk group. they are shown to be overrepresented in poverty and unemployment traps. one side of the problem, which turns into a normative issue, is concerned with family identities, whilst another concerns women’s dependency on social welfare support. martha fineman has addressed the role of patriarchal ideology in this process, whereby a characteristic typical of a group of welfare recipients has been selected and identified as constituting the cause as well as the effect of poverty. she discusses how the imaginary of welfare discourse remains laden with moral and normative judgements. these judgements are centred on stereotypical assumptions about single mothers in the context of poverty, corresponding to the popular and political classification of the poor as either ‘deserving’ or ‘undeserving’. the mother is modified by her legal relationship, or lack thereof, with a male, and is classified by whether or not she is single, a fact that is positioned as both central and significant in the discourses (fineman 1995, pp. 205-223). instead of terms such as ‘single mothers’, or ‘single parents’ that is mostly used gender-neutrally in demographic categorisations, ‘solo mothers’ is here used methodologically, as an analytical tool, to disturb the different discourses that over time have led to the swedish welfare model as well as the present europeanising ones. most ‘single parents’ are mothers, in that mothers in fact mostly have the primary everyday responsibility for the child. from a legal view-point, parenthood and the maintenance obligations associated with family law are primarily based on biological ties. however, welfare regimes tend to target family units whether or not these line up with the ‘family’ of family law. the result is a policy emphasis upon ‘single’ mothers (who are not in a relationship). if and when a single mother is partnered she becomes invisible to law and policy. therefore, the term ‘solo’ mothers, rather than ‘single’ parents or ‘single’ mothers is used to identify women who have been or currently are single, irrespective of their reasons for being alone and regardless of new relationships. the kind of state support solo mothers receive can tell us something about the strength or weakness of the social rights of women with families. the more difficult and stigmatised solo motherhood is in society, the greater the barriers against opting out of a bad marriage or cohabitation (hobson, 1994, p. 176). as an analytical concept, ‘solo mothers’ offers a tool for interrogating critically the manner in which gender equality and social rights discursively link to each other over time and thus shows how the social practices of gender are constructed, re-constructed, contested, and transformed in the swedish welfare model in time and space. the term ‘solo mothers’ promotes the achievement of an alternative means of understanding gender equality beyond the dual-earner family and raises questions about gender and power relations emanating from a social context characterised by diversity and inequality. from patriarchy to gender neutrality in social and family law using the concept of solo mothers, how then can gender equality in relation to social rights be understood in a swedish context? in order to answer this question, it is useful to look at the history of the swedish welfare model. seen over time, social law in the swedish as well as in other nordic welfare regimes gradually replaced a system of social security based on a patriarchal ideology, in which solo mothers and their children were constructed as problematic. the assumption that women were first and foremost provided for within marriage long had effects on the reality for the un-provided, of which unmarried mothers were a part. this resulted in social exclusion and stigmatisation and their having a hard time managing. in addition, their disadvantaged position was reinforced by their situation in a fundamentally sex-segregated labour market. this kind of logic of separation meant that solo mothers especially were at risk of becoming poor and, rather than being included in the first social insurance schemes more than a century ago, primarily had to rely on punitive poor relief. during this period, in the triangular drama between industrialism/capitalism, democracy and the gender system, antagonistic ideas about integration or segregation of the sexes played an intrinsic part. thus, the growing conflict between the sexes created an ideological dilemma for women: whether to emphasise sameness or difference in relation to men. the conflict between the sexes came to be defined as a woman’s issue that was transformed into a series of problems that the system could simply manage, without questioning the fundamental gender-based order in society. the underlying conflict between the sexes was made invisible and the vision of an overall equality was maintained. this pattern of dealing with gender was a silenced ideology, and became the fundamental feature of the swedish welfare state that subsequently developed. in this conflict, the tension between married and unmarried employees and housewives was significant (hirdman 1990, pp. 82-83). equality in marriage law was a means of reinforcing the institution of marriage (melby et al., 2006, pp. 140 ff). the concept of folkhem (literally, the home of the people), which refers to the swedish welfare state, became the symbol of unified social democratic politics during the 1930s. ideas articulated in relation to the ‘population issue’ expressed a modern vision of the family and justified social protection (sou 1936:15). in contrast to the kind of patriarchal practices that characterised the earlier social order, in which the masters of employees in agricultural production were responsible for ensuring the needs of members of the household, social insurances, social assistance and social services developed in the welfare state compensated for social disadvantages in an industrialised society through redistribution of wealth. to some extent solo mothers were recognised as being in need of social welfare protection. however, the measures were still characterised by moral conditioning and disciplinarianism. the ‘employment strategy’ is one significant aspect of the swedish welfare model. it is essentially the assumption that paid work for women and men is the pre-condition for both social security and gender equality. this strategy, firmly established after the 1950s, was combined with collective responsibility, in solidarity, for ensuring the financial needs and care needs of the citizens. at the same time, the self-support principle, which was initially based on liberal ideas (eek, 1954) was undergoing a transition. the self-support principle – the idea that people are responsible for their own support – was originally understood to require those of limited means to repay any poor relief provided to them, but it was subsequently tied into the assumption of universal employment and the system of social insurances. the elaboration of family social legislation was also significant for the swedish welfare state. the state was positively conceived to have duties in relation to its citizens, who were to be ensured a certain standard of living. materially, the welfare state implied a very specific understanding of the rule of law. material interests and social needs, rather than social protection and equality in the formal sense, were the focus and this ‘needs perspective’ characterises social practices in the swedish welfare state. social security law and social protection were constructed as the primary responsibility of the state to provide welfare benefits for all residents who lacked sufficient resources, e.g. for solo mothers and children. this ‘resource idea’ was discursively embedded in politics and law and resulted in a general welfare system. the distinctive features that characterised the swedish model up to the 1950s were based on the notion of a male labour market and a sex-segregated mode of thinking, implying full employment, equality and universalism, in fact merely for men. up to the mid-1950s, social policies in sweden were dominated by a bread-winner ideal that was part of a normative order based on a ‘house-wife contract’. the second compromise in the swedish model, encompassing the normative relation between women and the state and the unpaid domestic work performed by women that was a precondition for welfare reforms, started to change during the 1960s. women’s right to perform waged work was established and the care of children gradually came to be regarded as a societal responsibility. during the later part of this period reconstructing the notion of income security became increasingly dominant, paving the way for the conception of a dual bread-winner model. social security in the swedish welfare state eventually came to be gender-neutrally constructed without the visualisation of particular needs, and to be based on the notion of a dual-earner and dual-carer family. nonetheless, the general welfare system was key for the inclusion of solo mothers and their children. through the construction of a general system of social security with individualised social security benefits and social services (e.g. in the form of publicly-financed day care) that enhanced women’s labour-market participation in the ‘woman-friendly’ swedish welfare state (hernes 1987) it became possible for women to opt out of family dependence without stigmatisation and without becoming poor. the swedish model of social security provided general protection and made it possible for women to form households of their own. the new type of social contract, a sexual or gender contract, was undeniably based on the individuality of women and men (pylkkänen, 2009). however, a special feature of swedish (and nordic) legal culture is the notion that individual duties and responsibilities are more important than individual rights. thus, social security in the nordic welfare states has an individual base, in combination with a supportive community when needed, in contrast to other legal cultures which mainly emphasise the family as the maintaining and caring unit. the nordic countries, characterised by their individual models of social security, have accordingly favoured women’s waged work. social rights oriented towards ‘positive freedom’, are thereby understood to have a potential to transform the private-public divide, because they are based on a link between the private sphere and public participation. (nousiainen, 2001, p. 34 ff). nevertheless, the strong notion of a dual-earner dual-carer family, in which equality is assumed to be attained through the parties in a nuclear family, concealed the structurally disadvantaged position of solo mothers. the benefit – waged work – for married or co-habiting mothers could also be seen as a loss: women were coercively constructed to become bread-winners. for solo mothers, who even earlier had primarily been supposed to be workers, this new freedom did not imply any far-reaching changes. in general, solo mothers fitted neither into previous nor into the new perception of maintenance relations within the family. solo mothers must often fulfil dual roles as earners and caregivers and actually perform these twin tasks. this is not fully recognised in laws that were once based on the notion of a house-wife contract, and were later based on a dual-earner dual-carer family.  constructions of normality in social security regulations in the welfare state still involved processes of exclusion and inclusion. in the 1950s gender constructs were still largely based on the traditional family model, giving rise to the notion of a male labour market and women’s financial dependence on a husband. this also had an effect on the boundaries of social citizenship for solo mothers. the explanation of social law in the welfare state as being solidaristic (ewald, 1986; tuori, 2002, pp. 53-69) seems in general insensitive to women’s life experiences, and especially to the life experiences of solo mothers. more particularly, it does not take into account women’s dual role as caregivers and earners. as a result of the ‘resource idea’ explained above – that is, that citizens who lack resources ought to be supported within the welfare system – this group of mothers has come to the attention of government investigatory works, in which their needs were recognised. in the 1970s and 1980s the widest possible social justice and equal living conditions for children living in various family forms was affirmed as the aim of social support (sou 1983:51; ds 1981:18). the overall objectives of gender equality policies in the 1990s meant that women and men should have the same rights, the same responsibilities and opportunities in all essential areas of life. essentially, this overall objective, among other objectives, came to mean equal distribution of power and influence; the same opportunity for women and men to be financially independent; and the same responsibility for women and men to take care of the home and the children (prop. 1993/94:147). even if mothers living on their own with children are shown demographically to be a group with specific needs and living conditions, they have not been legally targeted as a group. this oversight could be seen as being rooted in a hidden value, a concept of a model family that has not been sufficiently systematically criticised and reflected upon. it may, however, also be argued that the justification for financial and care provision in the swedish welfare state has in many respects implied the inclusion of solo mothers into the mainstream of society. the special needs of solo mothers were clearly recognised in policy discourse during the 1970s and 1980s and during this period of time solo mothers were supposed to be resourced by means of redistributive measures laid down in law. this resource idea, as will be shown below, is now being questioned in family and gender-equality politics, and in government investigatory works when preparing for future legal reform of the swedish welfare model. the swedish welfare model in transition these discourses, which have developed over several decades of the swedish welfare model, make visible how solo mothers’ disadvantaged position is historically and culturally embedded in the welfare system. in the following part of the article, i take up the elaboration of the more current discourses on gender equality and social rights in the swedish welfare state. initially, it needs to be stressed that current changes in welfare legislation take place in a legal and political context, in which national law is increasingly affected by international laws, and in which domestic power struggles, international politics and economic globalisation have a greater impact on legal regulation and on the discursive ways of representing social reality. soft law measures in the eu include the commonly agreed objectives of combating social exclusion and discrimination, of promoting social justice and social protection, and of gender equality (art. 3(3) eu treaty) the strategy of mainstreaming gender (art. 8 treaty on the functioning of the european union) is an important mechanism for promoting these objectives. overall, these soft law measures have an impact on the swedish welfare model. eu governance extends into the member states, not necessarily through social and family policies as is conventionally understood, but rather in terms of shaping discourses and processes through subtle patterns of influence on, and the insinuation of, particular values, ways of thinking and agency. the human rights discourse in the eu, which emphasises private autonomy within the conceived ‘normal’ family in order to eliminate dependence on public support, seems in fact to involve a formal understanding of gender equality. the idea of ‘active citizenship’ and the objective of ‘active inclusion’ (com (2005) 706) in the eu seem to be based merely on economic and market interests in flexible labour. in general, this conception of citizenship is poorly adjusted to women’s life experiences. in sweden, the institutional roots of swedish social security – how social security is organised and administered – and the assumptions underlying legal regulation and legal principles, have been brought into question as a result of these eu influences. making work pay one impact of a more market-oriented discourse on the swedish welfare system concerns the relationship of benefits to work. this has a gendered aspect, because the role of the transfer system differs for men and women. female recipients of social assistance receive sickness insurance, pre-retirement insurance, parental insurance and housing allowance more often than men. on the other hand, men are more often compensated through unemployment insurance. almost all the children living with parents born within the country and in receipt of long-term social assistance were children of ‘single parents’ (socialstyrelsen, 2004). in order to satisfy the specific needs of women and men, and hence promote increased justice between the sexes, differences between men and women as groups need to be recognised, while at the same time such recognition implies a risk that these differences will be reconstituted and that gender stereotypes will be reinforced. gender neutrality in law may have sex-based consequences. the nordic model, which sees work as the basis for the welfare of individuals and society, and in which income-related social insurance schemes are based on individually earned income, is now being compared to other welfare models. the relationship between efficiency and equality, with reference to the ‘capability approach’ , is seen as one of the cornerstones for the reform of social insurance. with support from economic theory, it has been argued that ‘the one who can earn the same without endeavour, or almost the same income in addition to having more time for leisure, will choose the path of least endeavour’ (sou 2006:86, p. 30). it is therefore maintained that attitudes to work are of crucial importance since social insurance implies subsistence without personal work. thus, legal regulations and the administration of insurance need to be based on a strong link to work: the stronger the link the more generous a system ought to be (sou 2006:86, p. 40). the fact that individuals can now move freely within the eu, without losing their social rights is seen as one of the advantages in social insurance, but also demands adjustments in legal regulation so that states can maintain control of their systems (sou 2006:86, p. 44). so far the actions proposed in response to eu objectives have resulted in partial amendments to social insurance legislation. the number of days compensated for in the form of sickness cash benefit, which in sweden was previously unlimited, is now limited – in principle to a period not exceeding one year, unless there are special reasons, e.g. sickness that demands long-term medical treatment. making work pay was strongly emphasised in the rules for unemployment insurance that came into force in 2007. the fees payable for unemployment insurance were raised and qualifications for eligibility were made more stringent through extension of the required work period prior to unemployment. unemployment insurance is now meant to protect against loss of income from permanent work. students, therefore, can no longer qualify for this benefit. the swedish confederation for professional employees questioned whether the new rules were compatible with council directive 79/7/eec (oj 1979 l 6, pp. 24-25), especially article 4 on equal treatment for men and women in matters of social security, and whether they discriminate against women as they, more often than men, work part-time. the swedish government defended the new regulation claiming that the amendments in unemployment insurance are legitimate in the light of current social and labour market policies which are aimed at the creation of new vacant jobs. the kind of social exclusion that unemployment implies is, according to the government, meant to decline as a consequence of the new rules. (prop. 2006/07:15, p. 45 ff). moreover, the pros and cons of introducing obligatory unemployment insurance, as opposed to insurance in current law that is based on membership in an unemployment fund, are also part of the debate (sou 2008:54). the freedom of choice in family policies a second impact of eu discourse in welfare policy is a shift from redistribution to free choice. the previous objective in the political field of financial security for families and children was to level out and reduce financial difference between families with and without children. the new objective is to work towards improved conditions where all families with children achieve a good standard of living (prop. 2007/08:1, p. 11). emphasis is laid on the importance of free choice and flexibility in contrast to the previous objective, which was aimed at redistribution (prop. 2007/08:91, p. 17). one example that reflects the reform of family policy is the introduction of a rule that authorises the municipalities to subsidise domestic care for children, instead of placing the child in publicly financed childcare arrangements (sfs 2008:307). moreover, the payment of a bonus to those parents who decide to divide parental leave more equally has been introduced: the more equal the division, the higher the bonus (sfs 2008:313). in weighing the redistributive effects of family policies, the marginal effects of income-tested benefits, such as last resort maintenance support and housing allowance, are emphasised in government policy and seen as embodying a risk that people will become trapped in benefit dependency. the policy objective therefore lays stress on families’ chances of achieving a good standard of living through choice rather than the redistributive outcome of family policies. therefore, rather than impose a particular redistributive outcome on families, the government now believes that differential outcomes, including different financial outcomes, need to be accepted since these outcomes depend on the particular conditions of families and the choices which they make. equality cannot, according to this view, be imposed. the relationship to work is seen as the starting point for family support, reflecting the main objective that families with children are to earn their incomes from waged work. it is also assumed that in the future, where a relationship has ended, maintenance for children will be increasingly regulated by means of private agreements between parents (sou 2011:51). diversity in childcare, through increasing the variety of suppliers, is targeted as part of the main objective, including the introduction of a child-care sum that will finance the increase in private forms of childcare. family policy is expressed as respecting each family’s free choice and providing support (prop. 2007/08:1, p. 11 ff) but not as steering choices in any particular direction. human rights and anti-discrimination a third influence of the wider european discourse is in the area of human rights and anti-discrimination. in the past, sweden has regarded the attainment of equality as something to be achieved through a strong welfare model, rather than through formal equality and anti-discrimination provisions. now, however, swedish scepticism with respect to statutory regulations in the area of anti-discrimination legislation is being re-evaluated. today, the concept of anti-discrimination is not only reflected in labour law but is also addressed to societal fields outside working life, such as higher education, social welfare services, social insurance and unemployment insurance. the swedish instrument of government (sfs 1974:152) lays down an anti-discrimination clause (chapter 1, section 2) and this section also emphasises the state’s responsibility to promote participation and equality in society. public authorities are instructed to ensure equal opportunities for women and men, for instance by counteracting the gender-segregated labour market. within this context, the new discrimination act (sfs 2008:567) replaces seven prior anti-discrimination laws in sweden. the focus on individual needs which i described above, has in the past rendered discrimination based on a sex and gender perspective invisible in social welfare services. favouring either men or women, when this is reasonable, for instance offering shelter to women exposed to violence, might have been seen to contravene a prohibition of discrimination. the new act, however, ensuring more powerful protection against discrimination allows discrimination on the grounds of sex within the social services, if different treatment is motivated and justified. the same applies to health care. active citizenship and financial independence a final example of the new ethos in the welfare system relates to the promotion of active citizenship. in contrast to the previous objective, which expressed the aim of attaining the same rights, responsibilities and opportunities in all essential areas of life for men and women, the new overall objective of equal opportunity politics expresses the view that women and men should have the same power to form society and their own life (prop. 2005/06:155, p. 43 ff). the title of the report – the power to shape society and one’s own life – is meant to reflect the forward direction that is proposed for the future. the report indicates that despite national and international changes, which lead to displacement of power and responsibilities away from the centralised nation state towards both the regional and international levels of governance, the challenges involved in equal-opportunity policies will remain with the state. the conditions for work and subsistence, for having a family and being able to discharge one’s freedom and rights as a citizen are said to be the central issues at stake. although perspectives other than that of sex/gender have to be included in any analysis of equality policy, the order of the sexes is assumed to be the fundamental power order in each society (sou 2005:66, p. 44-45). a precondition for achieving the overall objective is said to be that the same rights, opportunities and responsibilities prevail in all areas of life. the objective is designed to express the government’s approval of equal opportunities in society, that is to say a society in which women and men collectively and individually have the same power to shape society and their own life. in the government bill (prop. 2005/06:155) the continuation of equality of opportunity for women and men is emphasised, and it is expressed as being in need of following up as concerns various groups. as part of this discussion, the concept of active citizenship has been explicitly introduced into swedish discourse. in the first sub-objective which concentrates on power and influence, the conditions for decision-making are emphasised. in contrast to national citizenship the concept of active citizenship is seen to be better suited to expressing the inclusive and democratic idea that women and men should have the same opportunities to participate in the development of society. the second sub-objective is about equal financial opportunity as regards education and paid work for attaining self-sufficiency throughout life. the dual-earner dual-carer model, which is a concept that has been used among gender researchers, is criticised for having its weak points, since the concept standardises the notions of togetherness between two people and the nuclear family. in contrast to these notions, individual responsibility for subsistence and care for both men and women is emphasised (sou 2005:66, p. 131). the concept of financial independence has now been replaced with a concept that emphasises one’s own independence based on full-time work as normative for achieving the opportunity to become self-maintained and the opportunity to maintain one’s children. the notion of dependence as relational is meant to be used only in the context of care relations, since everyone is seen as dependent on the care of others during various phases of life, that is, when we are children, fall ill or become old (prop. 2005/06:155, p. 48; sou 2005:66, pp. 131-132). the dependence on benefits, especially for ‘single mothers’, was given as one reason for introducing a tax reduction for this group (sou 2005:66, pp. 142-145). this proposal, which was largely based on economic theory concerning the rationalisation of human behaviour, was not, however, included in the government bill (prop. 2005/06:155) and has not yet resulted in legal regulation. nonetheless, this proposal was based on the supposed function of tax reduction in stimulating employment and to make work pay, that is, work should be more profitable than benefit dependence. generous compensation and benefits might, according to the preparatory work, reduce incentives to work and thus produce poverty traps, in which single mothers are presently identified as an overrepresented group. the assumption is that this group of mothers is most sensitive to changes in the tax and transfer systems. in the preparatory work for the new equal opportunity objectives the idea that poverty is being feminised in the swedish context was rejected, without any definition whatsoever of the concept of poverty. at the same time, it was noted that the vulnerable situation of single mothers is derived from the objective of financial equality of opportunity for men and women. in reality, it is concluded in this report that women and men in sweden both have the opportunity to combine waged work with care of children. social security for solo mothers in the context of active citizenship as has been shown above, the active citizenship policies articulated today in swedish policy discourse reflect international dialogue and common objectives and frameworks for social and economic change. the notions of social exclusion and of ‘active inclusion’ and a legalistic and formalistic understanding of gender equality are articulated in ways that could well mean new directions and principles in the normative structure of the swedish welfare regime. this would have an effect on the constructions of normality in social law and on the boundaries of social citizenship in a swedish context. a strategy of targeting different groups of people, such as ‘single parents’, seems obvious in current equal opportunity policies. the need to reform social law now being articulated and the reforms now being prepared consider the capability approach, which is understood as constituting a cornerstone for future social law common to member states of the eu (deakin, 2005). once again, the need to control the recipients of social benefits is significant and the perception of ‘benefit dependence’ underpins the idea that social exclusion is caused by an all too generous swedish welfare model. european integration is not only reflected in the link between the labour market and social welfare but also in contemporary legal harmonisation exercises concerning family law in the nordic countries and europe. as anu pylkkänen points out, in a nordic context, the liberal rights discourse in european family law is a novelty, more or less triggered by european integration (pylkkänen, 2007). given the social conditions that have been proved to be characteristic of solo mothers – solo breadwinners in a sex-segregated labour market, and largely solo caregivers – this group, in spite of the vision of gender equality, risk being among the losers in a swedish welfare model transformed according to the ideas now being articulated in policy discourse. the notion of active citizenship and social inclusion, as opposed to a passive dependence on welfare benefits and services, and hence social exclusion, are emphasised. while the rhetoric might seem to promote inclusion, however, the practicalities mean that it will be difficult for solo mothers to take advantage from the new regime. this shift in the use of concepts, from poverty to social exclusion, is not merely a change on a semantic level but also on a scientific and political level, indicating a shift from redistribution, to emphasising relational issues in social policies (stendahl, 2003, p. 40). in swedish policy discourse, the starting point today for explaining social exclusion has largely come to be the abuse of social security and the assumption that social rights per se cause poverty, dependence and social exclusion. strategies in legal regulation and in policies to strengthen the incentives to work, and for enforcing the freedom of choice in the perceived dual-earner dual-carer family, reflect the kind of logic of separation that obscures the lived experiences of solo mothers. as i have explained above, the new discourse about social welfare reflects a more workand choice-oriented and less redistributive approach. the capabilities approach appears to concentrate on the notion of active security in the face of economic and social risks, social rights having the principal purpose of encouraging the participation of individuals in the labour market. seen from the perspective of gender relations and the position of disadvantaged groups, the notion of active citizenship also requires new approaches to determine who comes within the scope of an inclusive and gender-equal social citizenship. in sweden it is suggested that social insurance should become increasingly work-related. the legal principles which constitute the basis for national insurance, that is, solidarity and redistribution, are questioned in government investigatory works. the introduction of occupational insurance based on agreements between the parties in the labour market is being discussed. a definition of social insurance in line with this would mean the exclusion of groups of people, including solo mothers, who are not fully integrated into the labour market. remembering the main features of the first social insurances established in sweden more than a century ago, where insurance was only meant for those workers who acted correctly and that insurance had to be combined with strict control, it could well be questioned whether the new directions proposed for reform of social insurance could rather be characterised as de-modernisation of the swedish welfare model. in a swedish and nordic context, the ideal of care has in the past referred to care for people who cannot manage without help. this political ideal has not been associated only, or even primarily, with the family, but also with public care provision. public care services indeed have had de-familiarising effects, and have been especially important for solo mothers in reconciling care responsibilities with their work, and hence for their social inclusion. the objectives in promoting private arrangements for care and free choice within the family, which is mostly conceived to be a nuclear family, are increasingly expressed in policy discourse today. these new directions could well be characterised as re-familiarisation of the swedish welfare model. the overarching aim of making work pay is expressed in policy discourse, and targeted groups, such as ‘single mothers’ or ‘single parents’ rather than the collective, are the centre of interest in preparatory works aimed at reforming the social security system. however, the aim of modernising the welfare model while maintaining its core values is not strongly promoted, since gendered diversity and difference in citizenship are not sufficiently recognised. rather than solidarity in a distributive welfare state, the talk is of subsidiarity on a horizontal level, that is, individual responsibility and private responsibilities in the family and in the household to ensure that needs are met. final words a human-rights approach to social rights and gender equality raises the basic legal question of discriminatory practices and anti-discrimination laws. extensive welfare policies, based on solidarity and public responsibility have, in sweden, given the impression of a universal, overall equality. in sweden, equality has been the basis for non-discrimination, rather than the existence of formal rights. admittedly, it may still be claimed that equality of rights for women in sweden start and end within the family, despite sweden’s reputation as the most gender-equal country in the world (burman, gunnarsson, wennberg, 2004, p. 161; gunnarsson, 2001, pp. 11-22). the solo-mother family is at risk of appearing to be a problematic and dependent family constellation which challenges dichotomies such as autonomy and dependency, private and public. solo mothers are at once autonomous and dependent, and in a welfare setting which favours privatisation of maintenance and care, as well as free choice in a dual-earner dual-carer family, this group of mothers is at risk of being disadvantaged. gender neutrality in law, based on the liberal notion of an active citizen being primarily a wage-earner, that does not recognise and acknowledge gendered difference and diversity among citizens, runs the risk of reproducing solo mothers as defective family formations and second-rate citizens. this group of mothers mostly exist, if they are recognised at all, as gender-neutral isolated analytic concepts, or just as modified by her legal relationship, or lack thereof, with a (male) partner. hence, this group of mothers is at risk of being constructed as a dependent and defective family formation. hegemonic gender and power relations are continuously constructed and re-constructed in this process. as has been shown, discussions concerning the welfare of individuals today largely have a liberal profile: participation, independence, and free choice are discursively articulated in swedish and european debates. gendered inequality still involves a material component. taken seriously, gender mainstreaming could be used strategically to unmask the gender-based structural phenomenon of exclusion. from a gender perspective, a theory of ‘social citizenship’ based on a principle of inclusion, would not only consider dependence on the market but would also be concerned with redistribution and material equality and the possibilities for women to live independently. even when formal bodies of regulations are required to be sex-neutral in design, the outcome in social insurance and protection systems still contains gender differences that need to be recognised. in brief the equality of the results, that is, substantial equality, ought to be the key issue when sex-neutral regulations are applied in a reality that is systematically structured by gender. references bradshaw, jonathan et al, the employment of lone parents: a comparison of policy in 20 countries, family policy studies centre, joseph rowntree foundation, 1996. burman, monica, gunnarsson, åsa, wennberg, lena, ‘economic dependency and self-support in family, tax and social 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betydelse inom juridik, ekonomi och forskning, uppsala: iustus förlag, 2001. gähler, michael, ‘bara en mor – ensamstående mödrars ekonomiska levnadsvillkor i 1990-talets sverige’ (just a mother – the economic living conditions of single mothers in sweden during the 1990s), in bergmark, åke (ed), ofärd i välfärden (calamity in the welfare state), sou 2001:54. stockholm: fritzes, pp. 15-99. hernes, helga, welfare state and woman power: essays in state feminism, oslo: norwegian university press, 1987. hirdman, yvonne, ‘genussystemet’, in sou 1990:44 demokrati och makt i sverige, maktutredningens huvudrapport, pp. 73-116. hirschman, nancy j. and liebert, ulrike (eds), women and welfare, theory and practice in the united states and europe, new brunswick: rutgers university press, 2001. hobson, barbara, ‘solo mothers, social policy regimes and the logics of gender’, in sainsbury, diane (ed), gendering welfare states, cambridge: cambridge university press, 1994, pp. 170-187. hobson, barbara 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nordic legal culture, dartmouth: ashgate, 2001, pp. 25-61. pylkkänen, anu, trapped in equality. women as legal persons in the modernization of finnish law, helsinki: finnish literature society, 2009. pylkkänen, anu, liberal family law in the making: nordic and european harmonisation, feminist legal studies, vol. 15 issue 3, 2007, pp. 289-306. sainsbury, diane, gender, equality and welfare states, cambridge: cambridge university press, 1996. sen, amartya, development as freedom, new york: knopf, 1999. sen, amartya, commodities and capabilities, amsterdam: north holland, 1985. stendahl, sara, communicating justice providing legitimacy: the legal practices of swedish administrative courts in cases regarding sickness cash benefits, uppsala: iustus förlag, 2003. svensson, eva-maria, genus och rätt: en problematisering av föreställning om rätten, uppsala: iustus förlag, 1997. tuori, kaarlo, critical legal positivism, aldershot: ashgate, 2002. wennberg, lena, social security for solo mothers in swedish and eu law: on the constructions of normality and the boundaries of social citizenship, uppsala: iustus förlag, 2008. wennberg, lena, ‘exclusion of solo mothers in the welfare state’, in gunnarsson, åsa, svensson, eva-maria and davies, margaret (eds), exploiting the limits of law. swedish feminism and the challenge to pessimism, aldershot: ashgate, 2007, pp. 171-190. official documents ds 1981:18 (swedish ministry publications series) ensamförälder 1980 prop. 1993/94: 147 (swedish government bill) delad makt – delat ansvar prop. 2005/06:155 makt att forma samhället och sitt eget liv prop. 2006/07:15 en arbetslöshetsförsäkring för arbete prop. 2007/08:1 budgetpropositionen för 2008 prop. 2007/08:91 vårdnadsbidrag – familjepolitisk reform prop. 2007/08:93 jämställdhetsbonus – familjepolitisk reform socialstyrelsen (swedish national board of health and welfare), jämställd socialtjänst? könsperspektiv på socialtjänsten, elanders gotab, art.no 2004-103-2, 2004. sou 1936:15 (official reports series of swedish legislative and investigations commissions) betänkande ang. moderskapsskydd. moderstödssakkunniga. sou 1983:51 ensamföräldrarna och deras barn sou 2005:66 makt att forma samhället och sitt eget liv – jämställdhetspolitiken mot nya mål. sou 2006:86 mera försäkring och mera arbete. sou 2008:54 obligatorisk arbetslöshetsförsäkring. sou 2011:51 fortsatt föräldrar – om ansvar, ekonomi och samarbete för barnets skull statistics sweden (scb), demografiska rapporter 2007:2. com (2005) 706 final, working together, working better – a new framework for the open coordination of social protection and inclusion policies in the european union, brussels 22.12.2005. council directive 79/7/eec of 17 december 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, oj 1979 l 6, 10.1.1979, pp. 24-25. * senior lecturer in law, umeå university, sweden. � hyperlink "mailto:lena.wennberg@jus.umu.se" �lena.wennberg@jus.umu.se� � of the roughly 500 000 children in sweden who live separated from one of their parents, the majority live with their mother; 21 percent of children live alternately for an equal period with both parents and 10 percent live with the other parent for some of the time, see statistics sweden (scb), demografiska rapporter 2007:2, available at � hyperlink "http://www.scb.se/statistik/_publikationer/le0102_2006a01_br_be51st0704.pdf" ��http://www.scb.se/statistik/_publikationer/le0102_2006a01_br_be51st0704.pdf�. � based on feminist theory, the overarching purpose of the academic dissertation (wennberg, 2008), which this paper is based on, was to reveal historical and context-dependent constructions of normality in social security law, and from that to elucidate gender and power relations and processes of exclusion in the swedish welfare model. se also wennberg, 2007. � the theory of a ‘gender system’, elaborated by yvonne hirdman (1990) is explained as being patterned by two principles. first, the sexes are to be kept apart, and secondly, with the male norm as prime, the keeping apart of the sexes is a precondition for women’s subordination. this subordination is, as explained in this theory, based on the notion of women and men as being fundamentally different to each other. � alva and gunnar myrdal (1934, reprinted 1997) suggested in their most influential work of that time: kris i befolkningsfrågan (the population crises) fundamental social policy reforms as a remedy, for in their view, the disorganised and outdated family. � foucault (1979) explained how the art of governing in early modern europe, was concerned with a particular way of guiding the behaviour of individuals and groups, e.g. the guidance of children, families, communities and individuals. he meant that the exercise of power in policy measures focused on individuals, and the technologies of power implied disciplinary power. � the concept of ‘social protection’ is commonly used as an overarching concept encompassing social insurance, social assistance and social security. the concept of ‘social security’ on the other hand is often seen to include two kinds of instruments: replacement income schemes and adjustment income schemes. a broader understanding of social security also includes prevention and rehabilitation measures. in the latter meaning of social security ‘loss of earnings’ as well as ‘loss of well-being’ issues are dealt with through ‘social security’(see stendahl, 2003, p. 34) � see carin ulander-wänman in this issue. � in reshaping the european union’s social and employment policies, the concept of capability, developed by amartya sen (1985; 1999) in a series of economic and philosophical texts, has come to the attention of legal thinkers and is seen as a cornerstone for social law. according to deakin (2005) the capability approach sees one of the principal purposes of social legislation and social rights as encouraging the participation of individuals in the labour market. 22 21 what research and/or political issues are currently important for feminist legal studies from your perspective, and what issues you think feminist legal studies needs to address in the future elizabeth archampong the need for an international focus ______________________________________________________________________________ feminists@law vol 1, no 1 (2011) ______________________________________________________________________________ the need for an international focus elizabeth archampong* it is a pleasure for me to contribute to this first edition of feminists@law. i consider it important for feminists@law to develop an international focus, blending insights on feminist legal issues from around the globe. this international focus would ensure that trends in feminist thinking from around the world are kept in perspective; a feminist issue which is considered significantly resolved in one part of the world, may be a current challenge facing women in another part. for instance, law as a tool for getting states to perform their responsibilities of ensuring the personal safety of girls and women, women’s right to own property and maternal health are issues for women worldwide but the challenge is at different levels of resolution in different parts of the world. thus, feminists@law’s publication of articles reflecting issues at different points of the spectrum of women’s challenges would provide insightful lessons for its readership the world over. in this light, i consider it important that the difference in the needs of the average woman in africa and other parts of the world, and the needs of elitist and well placed women be recognized. while food and income security, health, housing, are significant issues for the former, the latter may consider political participation and representation significant in the promotion and protection of women’s rights. feminists@law needs to balance the development of both these “basic” and “aspirational” needs of women, blending in each edition a selection of articles that ensure that, in the words of a ghanaian proverb, “the right hand baths the left hand and the left hand baths the right hand.” further, it is important that feminists@law’s publications address the issue of women’s limited access to formal education in africa and other parts of the world. low literacy among african women breeds low self-esteem and an inability to effectively challenge patriarchy. moreover, many of africa’s challenges with health and poverty can be effectively eliminated with an educated populace. women form over 50% of the population in most african countries and with sound education they can make a significant difference. as kwegyir aggrey, a renowned ghanaian educationist put it, “the surest way to keep people down is to educate the men and neglect the women. if you educate a man you simply educate an individual, but if you educate a woman, you educate a family.” increasingly, the drive to mainstream gender, in all state processes, is gaining momentum. apusigah has observed that, “increasing realization of the differing effects, often negative, of gender-blind planning has sparked off moves to evoke differential treatment in planning for growth and development.” scholarly analysis of ghana’s experience of structural adjustment and poverty reduction strategies reflects significant defects where gender and the social impact of such programmes are ignored. also, political and economic decision making that does not incorporate a gender perspective tends to lead to skewed outcomes with limited benefits for women. i consider it important for feminists@law’s publications to encourage feminist legal theorizing on the role of gender in state policies, especially in africa. i also consider it important that feminists@law promote scholarly work on the issue of domestic violence. violence against women has received attention at both the international and regional level. although cedaw does not directly address violence against women, the monitoring committee for cedaw has dealt with the issue in its general recommendation no. 19 (1992), explaining that discrimination under cedaw includes violence against women. at the regional level, article 4 of the protocol to the african charter on human and peoples’ rights on the rights of women in africa requires all state parties to enact and enforce law to prohibit violence against women. domestic violence poses significant challenges in most african communities. socio-cultural practices and women’s low economic and political status have ensured that women continue to be viewed as property and subordinate to their male counterparts. the average ghanaian man considers it appropriate to “discipline” a woman, leading to physical or psychological abuse. feminists@law can make a difference by promoting the publication of works that advance ways to effectively tackle gender violence, especially in african societies. feminists@law’s open access status makes it a truly global journal and provides an opportunity to move feminist legal research forward. i reiterate my pleasure at being part of this first edition. * faculty of law, kwame nkrumah university of science and technology, kumasi, ghana. � hyperlink "mailto:earchampong@yahoo.com"��earchampong@yahoo.com�. � see konotey-ahulu f., “dr. j e kwegyir aggrey is rather special” modern ghana, march 2007, online: � hyperlink "http://www.modernghana.com/news/132669/1/dr-j-e-kwegyir-aggrey-is-rather-special.html"��http://www.modernghana.com/news/132669/1/dr-j-e-kwegyir-aggrey-is-rather-special.html� accessed 29/11/10. � apusigah, a., “gender mainstreaming: the ghana poverty reduction strategy or is it?” women in action, august 2004, online: � hyperlink "http://www.isiswomen.org/index.php?option=com_content&task=view&id=512&itemid=207" �http://www.isiswomen.org/index.php?option=com_content&task=view&id=512&itemid=207� accessed 25/3/11. � see, for example, kuenyehia, a., “the impact of structural adjustment programs on women’s international human rights: the example of ghana” in human rights of women: national and international perspectives, rebecca j. cook (ed) (philadelphia: university of pennsylvania press, 1994). � see generally, elizabeth archampong, “marital rape – a women’s equality issue in ghana”, unpublished paper prepared for the equality effect’s three to be free project, available under resources at � hyperlink "http://www.theequalityeffect.com/"��http://www.theequalityeffect.com�. ______________________________________________________________________________ 2 ______________________________________________________________________________ 1 kotiswaran revisiting the law’s (re)production boundary _____________________________________________________________________________________________ feminists@law vol 4, no 1 (2014) _____________________________________________________________________________________________________ abject labours, informal markets: revisiting the law’s (re)production boundary prabha kotiswaran[footnoteref:1]* [1: * senior lecturer, dickson poon school of law, kings college london, uk; email prabha.kotiswaran@kcl.ac.uk. a slightly modified version of this article will be published in the employee rights and employment policy journal, vol 18, no 1 (2014).] gendering labour law: an introduction feminist legal scholarship has for long richly contributed to the project of gendering labour law. in this article, i consider the efforts of both feminists and women workers alike to have abject forms of labour recognized as valuable labour and as legitimate work. i consider women in three sectors, namely, sex work, exotic dancing and commercial surrogacy and pursue two lines of inquiry. the first line of inquiry is to articulate why the work of these women ought to be recognized as legitimate work. in other words, i build on feminist efforts in the context of social reproduction to redraw what they call the production boundary to in turn critique feminists’ own reluctance to include within this production boundary the reproductive labour of women like sex workers, dancers and surrogates. in effect, i ask what it means to redraw what i call the 'reproduction boundary'. my second line of inquiry assesses the implications of this recognition of reproductive labour for labour law. how has labour law acknowledged the labours of these women in the past? is it possible for labour law to accommodate the demands of these women workers and if so in what ways can it do so and what are the strengths and drawbacks of a labour law model in this context? the immediate setting in which i examine these questions is the postcolonial context of india. however i believe that insights from the indian experience could be instructive elsewhere on more than one count. developing countries have for long grappled with designing suitable labour law models for addressing workers’ rights in the informal economy,[footnoteref:2] which could inform labour law reform in the increasingly informalized labour markets of the developed west. also, of the sectors that i examine in this paper, the political economy of commercial surrogacy as it has emerged in india is resolutely transnational. although the indian sex industry is at best a regional economy (unlike say the thai sex industry which is internationalized), there are significant similarities in the vocabularies of regulation of this sector worldwide. [2: in this essay, i use the terms ‘informal economy’ and ‘unorganized sector’ interchangeably.] feminist theorizing on social reproduction the impetus for recognizing the labour of women in sex work, dancing and surrogacy comes from a rich feminist tradition of conceptualizing reproductive labour. by reproductive labour, i mean the labour involved in social reproduction, namely, “biological reproduction; unpaid production in the home (both goods and services); social provisioning (…voluntary work directed at meeting needs in the community); the reproduction of culture and ideology; and the provision of sexual, emotional and affective services (such as are required to maintain family and intimate relationships)”,[footnoteref:3] all of which are performed predominantly by women typically within the institutional context of marriage. demands for the recognition of this labour have ranged from radical proposals such as wages for housework in the 1970s[footnoteref:4] to more recent attempts at the equitable distribution of marital property upon the termination of a marriage to a rearrangement of the responsibilities for care between men and women when both participate in the paid labour market.[footnoteref:5] [3: c hoskyns and s rai, “recasting the global political economy: counting women's unpaid work” (2007) 12:3 new political economy 297, at 300.] [4: l vogel, woman questions: essays for a materialist feminism, new york: routledge, 1995, 57.] [5: for a debate amongst legal feminists on whether the law should support women’s increased paid work in the labour market or compensate them for the unpaid work they perform at home, see the 2000-2001 special issue of the chicago-kent law review.] social reproduction under the neo-liberal conditions of globalization has however dramatically shifted the parameters of these debates. decisive trends include women's increased employment in the west, a larger aging population and declining social welfare, which have resulted in the homemaker/breadwinner "family wage" model being replaced by a “dual earner model” that seeks to accommodate global competitive pressures for flexible labour.[footnoteref:6] confronted with the crises that the global economy and welfare states are thrown into, feminists point to how women are not only increasingly called upon to perform paid work in and for transnational markets, but that they also face increased burdens of social reproduction. this may be ameliorated to some extent by the vast inflow of female migrant workers from the developing world particularly for domestic work and childcare.[footnoteref:7] yet, as states are driven by neo-liberal thinking to address the ‘care deficit’,[footnoteref:8] feminist scholars point out that “the gap between the outflows — domestic, affective and reproductive labour — and the inflows — medical care, income earned and leisure time — falls below a threshold of biological, financial and affective sustainability”[footnoteref:9] which has resulted in the depletion of social reproduction.[footnoteref:10] [6: j conaghan, “introduction” to special issue: legal constructions of unpaid caregiving (2007) 58 northern ireland legal quarterly, at 248-9.] [7: h shamir, “between home and work: assessing the distributive effects of employment law in markets of care” (2009) 30 berkeley journal of employment & labor law 404, at 439-40.] [8: j conaghan, supra note 5, at 247.] [9: s rai et al., http://www.e-ir.info/2012/03/19/depletion-the-costs-of-unpaid-domestic-work/. ] [10: id. ] the challenges facing the provision of social reproduction are significantly different in the developing world. for one, the institutions constituting what razavi calls the ‘care diamond’, which meet the needs of social reproduction namely, the market, family, state and community[footnoteref:11] are configured in fundamentally varied ways when compared with the west. in a country like india for instance, the welfare state is at best minimalist, constituting a “residual welfare regime”.[footnoteref:12] urban women’s participation in the workforce is abysmally low at 16% resulting in the family as the privileged site of care work. where women’s work has been commodified, it is in sectors like teaching or paid domestic work, which accommodates unpaid reproductive labour more easily.[footnoteref:13] the institutional parameters within which the political economy of reproductive labour is nestled and the regulatory impulses that govern it are thus driven by what palriwala and neetha term “gendered familialism”.[footnoteref:14] in other words, care is a familial and female responsibility and work in the market devalues and diminishes the dimensions of care.[footnoteref:15] paradoxically however, feminists also delineate the patriarchal reorganization of reproduction[footnoteref:16] whereby sex selection has increasingly become a technique used to facilitate female foeticide in the post-conception, prenatal moment rather than killing women through dowry harassment or prematurely later in their life cycles. the resultant lop-sided sex ratio of 914:1000[footnoteref:17] as reported by the 2011 census has fuelled the trafficking of women for social reproduction.[footnoteref:18] [11: s razavi, “the political and social economy of care in a development context: conceptual issues, research questions and policy options” (2007) gender and development programme, paper 3, united nations research institute for social development, geneva, at 20.] [12: r palriwala and n neetha, “stratified familialism: the care regime in india through the lens of childcare” (2011) 42:4 development and change 1049, at 1050.] [13: id. at 1054.] [14: id. at 1049.] [15: id. ] [16: k sangari, “settled alibis and emerging contradictions: sex selection, dowry and domestic violence” (2012) xlvii: 34 economic & political weekly, 39-48. ] [17: “india's skewed sex ratios: gendercide stings”, 18 december 2012, available at http://www.economist.com/blogs/banyan/2012/12/indias-skewed-sex-ratios. ] [18: n antelava, “the girls stolen from the streets of india”, available at http://www.bbc.co.uk/news/magazine-20938125. ] situating feminist legal theorizing on social reproduction like their feminist counterparts in other disciplines, feminist legal scholars have on many occasions engaged with the law’s regulation of women’s reproductive labour. they have in particular demonstrated the central role of the law in producing and entrenching the invisibility of women’s reproductive labour. one can discern two strains of theorizing here. much of the early, path-breaking work on the law’s regulation, and indeed, appropriation of women’s reproductive labour dealt with the lack of legal recognition of women’s reproductive labour as valuable. in this vein was katherine silbaugh’s writing on the significance of legal rules ranging from family law through to tort law, welfare law, bankruptcy law, tax law and labour law that consistently failed to value women’s housework. in the process of revealing that these rules did not recognize women’s housework, but could have, silbaugh’s work also showed that no default legal regime governing a certain sector of women’s work at any given point in time is necessary in any way. in other words, legal categories are contingent. thus, we may currently default to using family law for recognizing women’s reproductive labour. however, labour law might just as well have mandated wages to housewives. indeed, feminist lawyers continue to delineate how unpaid care giving is regulated by laws as disparate as property law, family law, labour law, tort law, eu and international law.[footnoteref:19] it is this contingent legal categorization of women’s labour that, both itself amounts to, and further enables the patriarchal appropriation of women’s labour. meanwhile, some legal feminists here have reached into the depths of carol gilligan’s work on difference to articulate a normative view of unpaid reproductive labour or care work[footnoteref:20] which is reflected in a range of legal proposals,[footnoteref:21] thus bolstering feminist claims to the recognition of social reproduction. [19: j conaghan, supra note 5, at 245.] [20: see the discussion of care feminists in p tsoukala, “gary becker, legal feminism, and the costs of moralizing care” (2007) 16 columbia journal of gender and law, 387-8.] [21: m ertman, “commercializing marriage: a proposal for valuing women’s work through premarital security agreements” (1998) 77 texas law review, 17-112.] other legal feminists have increasingly focused on theorizing care in terms of redistribution, especially intra-gender redistribution or the effects of recognizing the reproductive labour of wives for other women. one can perform this critique between households or within the household. mary ann case has provocatively written about the intra-gender effects of increased employer responsibility for children. feminist legal realists like halley, rittich and shamir have shown how the exceptional status of the family as a legal category performs concrete distributional work. their starting point is to highlight the significance of background legal rules, which influence the bargaining power of a social actor in any given situation. thus, halley and rittich have argued against the exceptionalist legal treatment of the family through family law (fl). they back-ground legal rules in the process into several categories ranging from fl1, the subject matter of family law textbooks to fl2 (tax, immigration, bankruptcy laws), fl3 (tenancy law, employment rules, labour laws) and fl4 (incorporating norms around the household).[footnoteref:22] similarly, shamir assesses the distributive consequences of accommodations structured within employment law for working families, which were meant to recognize care responsibilities but can in fact have unpredictable effects that consolidate and entrench class and gender disparities. thus shamir’s analysis shows that the ability of a worker to take unpaid leave to care for oneself, a child or a specified family member who is seriously sick under the us family and medical leave act, 1993 might be ultimately used only by working women rather than their husbands due to the gender wage gap.[footnoteref:23] alternatively, the fact that such leave is unpaid means that in the absence of any other leave entitlement, only middle-class workers can avail of this optional benefit.[footnoteref:24] the legal analysis here is highly attuned to the unintended consequences of legal rule changes. thus accommodations within employment law for working families, which were meant to recognize care responsibilities, can in fact consolidate and entrench class and gender disparities while ignoring protections for the secondary labour market of migrant care workers who support working parents. [22: j halley and k rittich, “critical directions in comparative family law”, introduction to the special issue on comparative family law (2010) 58:4 american journal of comparative law 573, also available at http://www.law.harvard.edu/faculty/jhalley/cv/halley.pdf. ] [23: shamir, supra n. 6, at 431.] [24: id. at 435.] many feminist scholars have also pointed out that the law’s recognition of female reproductive labour is narrow in that it normalizes heterosexual marriage to the exclusion of other organizational forms for the provision of social reproduction. barlow speaks of a sliding scale of value[footnoteref:25] wherein a high value is placed on non-financial contributions to a marriage, which is not available within cohabitation law.[footnoteref:26] even less value is accorded to non-couple care-giving relationships or state-dependent single parenthood where paid work is considered to be the carer’s primary goal and reproductive labour becomes non-existent at best. similarly, recognition of the reproductive labour of families formed by lesbians, gays, bisexuals and transsexuals is premised on their approximation of the heterosexual marriage model requiring “two parents (no more), cohabiting in a monogamous, long-standing relationship, acting as one economic unit with the associated assumptions around financial dependency, and involved in a romantically defined sexual relationship”.[footnoteref:27] [25: a barlow, “configuration(s) of unpaid caregiving within current legal discourse in and around the family” (2007) 58 northern ireland legal quarterly 251.] [26: see also s wong, “would you ‘care’ to share your home?” (2007) 58 northern ireland legal quarterly 268, for how courts have adjudicated property claims when cohabitation arrangements end.] [27: j conaghan and e grabham, “sexuality and the citizen carer” (2007) 58 northern ireland legal quarterly 325, at 340.] revisiting the production boundary, redrawing the (re)production boundary feminist endeavours to convince states and increasingly international institutions to recognize women’s reproductive labour have met with little success. as feminist economists and development theorists look to successful campaigns elsewhere in trying to get the un to redraw the ‘production boundary’, feminist lawyers have had to be content with family law doctrine where the labours of married mothers in long-term marriages are recognized, but only at the point of exit namely, divorce. what is perplexing however is that despite feminist critiques of mainstream economic theory and state policy, feminists’ own conceptualization of the production boundary is somewhat limited when it comes to reproductive labour. in the literature on social reproduction, the ‘reproduction boundary’, if i can call it that, is fairly consistently and strictly drawn around unpaid reproductive labour performed in a relational context or the reproductive labour of working mothers who struggle to balance work and care responsibilities. even the vocabulary for the recognition of social reproduction is couched in terms of “care work”, “care giving”, “familial care”,[footnoteref:28] and “unpaid caregiving”,[footnoteref:29] which assume underlying affective arrangements. glaringly absent is an understanding of reproductive labour performed by women for the market in terms of social reproduction. [28: shamir, supra note 6.] [29: this is the term that the special issue of the northern ireland legal quarterly uses.] admittedly, feminists have expressed concerns about the exploitation that the commodification of women’s reproductive labour brings. these arguments must be taken seriously. however, the very framing of the feminist issue in these sectors is up for grabs. the predominant feminist framing so far has been to view sex workers and exotic dancers (and commercial surrogates to a lesser extent) as victims of patriarchal violence. radical feminists have been most influential in setting the agenda for policy discourse in these sectors, although an equally vocal group of pro-sex worker feminists exists. nevertheless, the lack of a well-articulated materialist feminist position on sex work has meant that there is a considerable blurring of lines between the anti-commodification and anti-coercion strains of feminist arguments. elsewhere i explore in great depth how we might envision a postcolonial materialist feminist theory of sex work.[footnoteref:30] there i argue that the vast cataloguing by western radical feminists of the harms of sex work and sexualized dancing are not unique to women’s work in those sectors. indeed, harms abound in whatever sector women work in, whether as housewives or mothers or domestic workers. a close examination of these sectors suggests enough similarities to not warrant a differential legal treatment. in other words, it is not clear that the harms of sex work are so exceptionally unique as to justify the abolition of sex work. i will not rehearse the many complexities of generations of feminist debates that have taken place within several disciplines over sex work, dancing and commercial surrogacy. for the time being, suffice it to say, that the widespread prevalence of women’s reproductive labour performed for the market necessitates at the very least some feminist re-think of these issues from a labour perspective. in other words, if there is no normative feminist justification for treating these markets exceptionally in relation to other sites of women’s labour, what can feminists say about whether and how the market values and compensates women’s reproductive labour? using the term “reproductive labour” here leaves open the possibility that feminists recognize the labour that women perform in these sectors, even if they vehemently disagree with the characterization of such labour as work, deserving the protections of labour law. [30: p kotiswaran, dangerous sex, invisible labor: sex work and the law in india, princeton: princeton university press, 2011, see chapters 2, 3 and 6. ] theorizing the multiple sites of female reproductive labour conceptualizing women’s reproductive labour, whether performed for the family or the market, in terms of a continuum is not altogether a theoretical exercise. even a preliminary empirical investigation will reveal fairly quickly that women’s reproductive labour performed within marriage and in other market sites often overlaps. thus in the context of sex work, one could think of the figure of the housewife-sex worker. in the commercial surrogacy industry as it has emerged in india, surrogates are also often housewives. indeed, fertility clinics often insist on ‘proven’ fertility, which given the stigma of extra-marital sex, will translate into a limited pool of surrogates who are already married mothers. the law is often littered with reminders of this inter-connectedness. to illustrate, in the context of surrogacy, the indian council of medical research guidelines insist on referring to the legitimacy of the baby born of a surrogacy agreement. the law clarifies the non-adulterous nature of assisted reproductive technologies (art) when performed with the husband’s consent. similarly, conception through art precludes the wife’s claim for marital dissolution on the basis of impotency. women’s reproductive labour performed for marriage and for the market can be viewed in terms of a continuum. thus in the course of my field work in kolkata’s largest red-light area, i learnt that almost 75% of sex workers there had been once married. the fragility of the institution of marriage meant that upon the breakdown of the relationship, wives who were not in a position to support themselves and their children resorted to sex work. this came at an enormous social cost and these sex workers continued to aspire to the life of a married woman. domesticity was highly valued and marriage was viewed as facilitating exit out of sex work. however, it was not unusual for sex workers to exit sex work only to return a few years later. similarly, one could view a commercial surrogacy transaction as only having a temporary effect on the reproductive labour commitments of a housewife such that she will revert back to reproducing for the household once the baby has been handed over to the commissioning parents. however, housewives are also known to enter into surrogacy arrangements in order to save enough money to enable exit from marriage. this mobility between the institutional sites of reproductive labour has interesting implications for how we think about the distributive effects of the law. last but not least, one could view female reproductive labourers at varied institutional sites as being in competition with each other. they often develop conflicting interests vis-à-vis each other, striking bargains in the process. thus wives of men who visit sex workers are likely to support johns’ schools where customers of sex workers are sought to be ‘reformed’ away from patronizing sex workers. sex workers have opposed such initiatives, especially as it typically involves the increased prosecution of customers. i offer another illustration from the controversy around the emergence of dance bars in the indian city of mumbai. in the wake of a proposal to ban bar dancing in 2006, the conservative pro-ban lobby did not hesitate to position the dancer or ‘bar girl’ as a deviant, greedy, sexual provocateur.[footnoteref:31] in newspaper advertisements placed by the state women's commission, the bar dancer was shown as hurting the interests of wives and children whose husbands and fathers would return from the dance bar, intoxicated and abusive.[footnoteref:32] [31: f agnes, “state control and sexual morality: the case of the bar dancers of mumbai” in enculturing law: new agendas for legal pedagogy, eds. m john and s kakarala, new delhi: tulika books, 2007, at 161.] [32: f agnes, “fundamental freedom and bardancers”, asian age, 4 october 2005, available at: http://el.doccentre.info/website/docpost/legal_rights/oct-05/pdf%20oct-05-lr/re10-fundamental%20freedomand%20bar%20dancers.pdf.] interestingly, the distinctions that supposedly delineate marriage from non-marital economies of reproductive labour are invoked to distinguish economies at the abject end of the spectrum, despite the striking similarities in the social profile of the women who undertake such labour and the structural similarities of these economic sectors.[footnoteref:33] this has significant implications for law reform, as the recognition of one form of reproductive labour is achieved at the expense of the other; in other words, a zero-sum game. so in the indian context (and it is not unrealistic to expect to find such arguments made elsewhere), the recognition by the bombay high court of the rights to livelihood of bar dancers was possible only because of the sharp distinction between dancing and sex work; so the court analyzed dancing as being res commercium whereas sex work was res extra commercium (outside the boundaries of commerce). thus, despite the inter-related nature of these economies, a change in rules in any one sector could in fact adversely affect women in related sectors. [33: to illustrate, bar dancers, like sex workers, had entered dancing through other low-paying jobs traditionally held by women, to which they were likely to return after the ban. natal and marital families played a significant role in women's entry into bar dancing as in sex work. like sex workers, bar dancers formed each other's support system that ultimately saw them through breakdowns in relationships with men and their own families. bar dancers experienced similar levels of social stigma as sex workers so that marriage was an unlikely exit option. they often kept their work a secret from their family. yet, like sex workers, they internalized the stigma attributed to their ill-earned money. bar dancers lived in the same urban residential spaces as sex workers. dancers, like sex workers, viewed themselves as independent, without the desire to marry, earning an income with self-respect. romantic liaisons were viewed as a threat to one’s career. even where some dancers aspired to marriage, its fragility was always high on their minds, as with sex workers. although they understood their work as lacking social respect, they reclaimed some agency and dignity by asserting that they were in dancing out of need, not by force, and were therefore not doing anything wrong.] recognizing reproductive labour, defaulting to labour law advocates who make the case for the recognition of abject reproductive labour often default to demanding some form of labour law protection. there is something very ironic about this. after all, it has been an uphill struggle for any form of women’s reproductive labour to be recognized within marxist and leftist theoretical and political projects. it is not for nothing that marx included within “the lowest sediment of the relative surplus population…vagabonds, criminals, prostitutes, in short the actual lumpenproletariat”.[footnoteref:34] despite this characterization, strong leftist mobilizational traditions can and do hold promise for workers whose labour is invisible in social and legal terms. thus, the sex workers of west bengal whose protest politics i have studied,[footnoteref:35] derived inspiration to articulate their demands for workers’ rights from watching strikes and protest marches by other workers pass by sonagachi, kolkata’s largest red-light area.[footnoteref:36] to draw on doug mcadam’s work on social movements, ‘cognitive liberation’[footnoteref:37] was achieved through identification with other workers. sex workers have thus arrived somewhat late to the modernist promises of redistribution through labour law, even as labour law’s influence worldwide in effecting the meaningful redistribution of resources is receding. [34: k marx, the eighteenth brumaire of louis bonaparte, new york: international publishers, 1963.] [35: p kotiswaran, “‘sword or shield?’ the role of the law in the indian sex workers’ movement” in “emergent sexual formations in contemporary india”, eds. s legg and s roy (2014) 15:4 interventions international journal of postcolonial studies, 461-473.] [36: sonagachi borders a major arterial road of north kolkata.] [37: doug mcadam, in his seminal work on the american civil rights movement, proposed the political process model to explain the emergence of a social movement. according to him, the three prerequisites are indigenous organizational strength (networks that provide the social glue for marginalized populations), political opportunity (any event or broad social process that serves to undermine the calculations and assumptions on which the political establishment is structured) and cognitive liberation (the subjective prerequisite which translates grievance into action). d mcadam, political process and the development of black insurgency, 1930-1970, chicago: university of chicago press, 1982.] significantly, female reproductive labourers’ aspiration for the legal recognition of their rights through labour law is contingent on overcoming the default legal categories that regulate the sectors they work in and the logics of governance that these default legal rules generate. thus formally speaking, the sectors i consider are governed by three different substantive areas of the law, sex work through criminal law, bar dancing through licensing law, and commercial surrogacy through contract law. in the sex work sector, the default regulatory regime is a prohibitionist one enforced through an anti-sex work criminal law. its uneven enforcement ensures a circumscribed zone within which sex work is carried out. the threat of enforcement however always persists. this allows a range of stakeholders within the industry to abuse sex workers. the state itself is engaged in rent-seeking arrangements when enforcement personnel accept bribes to desist from using the criminal law. bar dancing on the other hand is regulated through a labyrinth of licensing laws relating to food, liquor and public entertainment. however, the general criminal law can and is often invoked against what the police perceive as obscenity or public nuisance; this becomes an opportunity for the police to extract bribes from stakeholders in the industry. by contrast, the assisted reproductive technologies bill, 2010, which has been proposed to regulate the indian surrogacy industry, facilitates contracts between the various parties to a surrogacy transaction within specified limits. in considering all three sectors then, it is clear that the default legal categorization can pose obstacles for mobilization as workers in certain sectors. thus, despite the repeated efforts of the kolkata-based sex workers’ group to have their trade union registered by the registrar of trade unions, they have been unsuccessful, as the registrar has repeatedly queried the legal status of their occupation. this is why the group has repeatedly demanded that the indian anti-sex work law is repealed and that labour laws become applicable to sex work. even while efforts to shift the default rules need to continue, any normative claim for recognizing abject reproductive labour has to necessarily go hand in hand with reconceptualizing labour law. this reconceptualization is essential not only because female reproductive labour is often performed within the informal economy, but also because of the stigmatized nature of such work. here the work of nancy fraser is pertinent. in justice interruptus,[footnoteref:38] fraser claims that one of the predicaments of the postsocialist condition is the shift in social movements’ claims of the state from demands for redistribution to demands for recognition. characteristic of this shift is how group identity (such as sexuality) supplants class interest, cultural domination supplants exploitation as the problem and cultural recognition supplants socioeconomic redistribution as the solution. certain identities like race and gender are however bivalent. remedies could be either affirmative or transformative. affirmative remedies are those which do not disturb the underlying framework while transformative remedies restructure the underlying generative framework. thus an affirmative remedy to a problem of recognition would attempt to redress disrespect whereas a transformative remedy would engage in deconstruction. [38: n fraser, justice interruptus: critical reflections on the postsocialist condition, new york and london: routledge, 1997.] nancy fraser’s powerful conceptualization of the distinction between demands for recognition and redistribution tends to suggest a trade-off between the two so that redistribution is often achieved at the expense of recognition and vice versa. for female reproductive labourers however, demands for recognition are as crucial as demands for redistribution. thus, paid domestic workers not only wish to access the material benefits of labour laws (redistribution) but also to shift the social stigma attached to domestic work (recognition). this is certainly true in the indian context where domestic workers are often from lower castes and social distinctions mediate their relationship to work. similarly, sex workers across the world seek conventional workers’ rights such as wages, safe working conditions and social security protection. however they equally want to ensure that they are respected for the labour that they perform. despite these similarities in demands made by reproductive labourers, the emphasis on recognition or redistribution may vary between sectors. thus, for sex workers, the overwhelming focus is on the removal of stigma, but claims for redistribution are weak as they often internalize the logic of the market. the architecture of indian labour laws conventional labour laws having acknowledged the demands by female reproductive labourers for both recognition and redistribution, what use are labour laws to them? this depends on the architecture of labour laws in any given legal system. in the indian context, there are at least three generations of labour laws. the first set of labour laws apply to the formal sector. they include in the indian context, the industrial disputes act, 1947, payment of wages act, 1936, the minimum wages act, 1948, the payment of bonus act, 1965, workmen’s compensation act, 1923, employees’ state insurance act, 1948, employees’ provident fund & miscellaneous provisions act, 1952 and the payment of gratuity act, 1972. they are robust in establishing tripartite relationships between the state, employers and employees. the ideal workplace is imagined to be a factory and the law mandates the mediation of the relationship between the employer and employees at a fairly micro-level. workers are envisaged as being unionized. such laws typically deal with working conditions, wage issues, social security benefits, and the management of industrial disputes. considering that only 8% of the indian working population is in the formal workforce, the centrality of this model to indian labour law has always been perplexing. as the second national commission on labour noted in 2002, the factories act, 1948 was often not applicable to the work in the informal economy because the threshold for the minimum number of employees was not met or the unit under consideration was engaged in non-factory, non-manufacturing work. similarly, the minimum wages act, 1948 did not apply to the large percentage of home-based or self-employed workers who worked in the informal economy. the payment of wages act, 1936 was inapplicable due to the wage threshold it imposed, nor was it applicable to self-employed/home-based workers. the workmen’s compensation act, 1923 similarly had many restrictions and was difficult to enforce. the contract labour act, 1970, required an establishment to have a minimum of 20 workers. social security laws such as those dealing with employees’ state insurance, provident funds or gratuity all had qualifying thresholds so were not applicable to many unorganized workers. labour laws for the unorganized sector a second generation of indian labour laws took shape soon after independence and has originated both from the federal legislature, namely, the indian parliament as well as from provincial state legislatures. several of the federal labour laws are sector specific and include laws applicable to plantation workers, journalists, motor transport workers, beedi and cigar workers, construction workers, cine workers, seamen, dock workers, mine workers and so on. these laws were enacted largely as a result of local pressure from labour movements. the preamble to the beedi and cigar workers act, 1966 states the reasons for its enactment. these include the circumvention of traditional labour laws such as the factories act, the poor definition of the employer-employee relationship, the use of contract and home labour, the significance of intermediaries in many labour markets and the collective action problem of workers in the informal sector. these federal labour laws deal primarily with the payment of wages and social security benefits rather than maintaining workplace conditions and are funded by a global cess on the product obtained through indirect taxation. state level laws can also deal with a specific sector. however the most innovative of the state level labour laws have tended to be broadly framed to cover a certain category of work such as “manual work” or sector such as the “unorganized sector”. the earliest such law was passed by the state of maharashtra and was titled the maharashtra mathadi, hamal and other manual workers (regulation of employment and welfare) act, 1969. the state of tamil nadu followed suit when it passed the tamil nadu manual workers (regulation of employment and conditions of work) act, 1982 (“manual workers’ act”) and karnataka when it proposed the karnataka unorganized workers welfare bill, 2002. i will briefly outline some features of the manual workers’ act because although it aims to address workers in the unorganized sector much like the sector-specific federal laws i have mentioned above, its underlying model is substantially different and therefore, worth considering in some detail for addressing the concerns of female reproductive labourers. under the 1982 law, the employer is defined to mean the principal employer in case a contractor is used, and in other cases as the person who has the ultimate control over the affairs of the establishment and includes any agent or manager to whom the affairs of the establishment are entrusted. the manual worker is defined as someone engaged directly or indirectly for wages or no wages to work in a scheduled employment. it also includes someone who is not employed by the employer or contractor but who works with the permission of or under agreement with the employer or contractor and a person who is given raw materials for working on it. in 1998, this definition was amended to include a person who directly engages himself in any scheduled employment. schemes under the statute are set up for each scheduled employment. the schedule to the manual workers act with a list of scheduled employments is fairly long and lists 63 forms of employment, several of which cover self-employed workers.[footnoteref:39] this act initially visualized a motherboard for the varied scheduled employments, which could be supplemented over time. however for political reasons, boards for specific occupations began to be established. a motherboard scheme under the act that is not restricted to any particular scheduled employment is the tamil nadu manual workers’ social security and welfare scheme, 1999. an example of a sector specific scheme under the act is the tamil nadu workers (construction workers) welfare scheme, 1994.[footnoteref:40] a given scheme for a scheduled employment seeks to register employers and manual workers, regulate the conditions of work, offer health and safety measures, provide social security benefits and ensure the general welfare of manual workers. laws relating to the payment of wages and workmen’s compensation and maternity benefits are made applicable to the scheduled employments. the act provides for an employment guarantee scheme to ensure a minimum wage for a period when, despite their willingness to work, any employment or full employment is not available. all scheduled employments are listed under a schedule to the minimum wages act. a board with representation from employers and manual workers is set up to implement these schemes and there could be one or more boards for a certain scheduled employment. the respective boards receive contributions from employers and manual workers; the state may also make grants to the board. the board steps in to assume the responsibilities of an employer where the employees are self-employed, thus dispensing the range of benefits assured under the law. labour protections created for one sector are not assumed to apply equally well to other sectors. schemes are instead tailored for specific industries, although schemes for one scheduled employment can be made applicable to another scheduled employment if employers and manual workers from a scheduled employment make a request. an advisory committee with representation from employers, manual workers and the state advises the government on the general implementation of the law and co-ordinates the actions of the various boards. [39: examples include fishing, toddy tapping, boat working, papad making, bullock cart driving, cooking food, coconut peeling, collection of forest produce, catering, driving autos and taxis and cycle rickshaws, handloom, incense sticks, laundry, flour mills, pottery, rag picking, hair dressing and beauty parlour, street vending, shops, tailoring, tree climbing, wood working and domestic work and cycle repair.] [40: a manual worker needs to register with the board along with a certificate of employment, which can be issued by an employer or registered contractor. in the case of a self-employed worker, the card could be issued by a government organization or agencies in the building industry and a registered trade union. the scheme provides access to crèche services, provident funds, employee’s state insurance, pension, funeral expenses, assistance on natural death, assistance for education and marriage of children, and for delivery, miscarriage or termination of pregnancy of a registered female manual worker. the scheme also provides for a group personal accident insurance scheme whereby the board purchases insurance from an insurance company, pays the premium and pays out compensation to its employees in the case of major accidents and death. contributions from employers and employees go into a general fund from which expenses are met although the board can borrow money to provide for benefits under the scheme. ] the second generation of indian labour laws targeting the informal economy (of which the manual workers act is an example) have much to offer to female reproductive labourers working in sex work, bar dancing and commercial surrogacy. to begin with, there are significant similarities between these sectors and the informal economy. these include the poor socio-economic background of most informal workers, the mode of entry into the informal economy, the ease of entry and exit, the migrant, even seasonal and intermittent nature of the work, the prevalence of debt bondage, high levels of harassment from state officials, particularly the police, the substantial role of intermediaries in facilitating the employment relationship, the scattered nature of establishments, the lack of implementation of labour laws and the low degree of unionization. there is often difficulty in identifying an employer-employee relationship and where identified, it is casual. then there are workers who are self-employed or home-based. the work itself is often precarious with low pay and no job security or social security and poor conditions of work. worst of all, much of the work in the unorganized sector is not viewed as work at all. there is also a lack of homogeneity across sectors within the informal economy in terms of the nature of work, the number of employees in the undertakings and the level of organization. state-level labour laws like the tamil nadu manual workers’ law signal a significant departure from the first generation of indian labour laws in that they are resolutely geared towards workers in the informal economy. conventional labour laws typically deal with regulating conditions of work on the factory floor, the resolution of industrial disputes between unions and employers, the payment of wages and social security benefits. the economic vulnerability of workers in the informal sector means that their priorities centre round wage issues and social security benefits, especially in a country that has a poor social safety net. the manual workers’ act provides precisely this emphasis. moreover, significant obstacles, which in the past prevented workers in the informal economy from availing of workers’ rights, are addressed through a creative interpretation of the employment relationship. the tamil nadu law thus caters to self-employed manual workers as much as it does to workers who have an identifiable employer. the definition of the term ‘employer’ is also rather broad in order to capture complex sub-contracting arrangements. also particularly significant for female reproductive labourers is the fact that the broad list of scheduled employment covers sectors which involve the performance of services rather than employment that leads to the production of goods. a contributory scheme, which draws on the contributions of workers engaged in the production of goods and services, is preferable to a cess-based welfare fund, which relies on the taxation of goods. also, since the law accommodates a range of schemes, which can be sector specific, schemes that are tailored to varied sectors of reproductive labour are conceivable. for reproductive labourers who have a significant collective action problem, being able to lobby for a scheme requires far fewer resources than mobilizing for the passage of a new statute at the federal or state level to address their needs. the economy of effort in this regard is striking, as is the fact that a scheme under a manual workers’ statute for reproductive labourers will likely have fewer stigmatizing effects than a sector-specific law. it is little wonder then that the largest indian sex workers’ group, namely, the 65,000 member strong kolkata-based durbar mahila samanwaya committee (dmsc), has for long lobbied the west bengal labour commissioner to add sex work to the schedule of employments under the minimum wages act, 1948. thus, laws modelled on the manual workers act effectively meet reproductive labourers’ demands for both recognition and redistribution. the fragmentation of labour law into welfare governmentality the economic reforms set into motion in the wake of the new economic policy of 1991 and the resultant structural adjustment programs led to a new phase of thinking around labour law in india. india’s strong system of conventional labour laws and a culture of trade union militancy were in fact viewed as an obstacle to the economic reforms that the indian state sought to implement. in 2002, the second national commission on labour (ncl) was appointed with a mandate to reviewing and consolidating indian labour laws. this had implications for laws applicable to the informal economy as well, when the ncl expressed its preference for an umbrella legislation for the workers in the unorganized sector rather than sector-specific laws. it stated: “we want to minimize the number of separate laws for different kinds of workers. our attempt is to ensure that the existing laws are consolidated, and reformulated to provide protection and welfare, to all workers.”[footnoteref:41] [41: the report of the second national commission on labour, 2002, volume i, at 613 http://www.prsindia.org/uploads/media/1237548159/nlcii-report.pdf. ] notably, the ncl paid fleeting attention in its report to one category of reproductive labourers, namely, sex workers. as of 2002, neither bar dancing nor commercial surrogacy had been debated publicly as a significant policy question. in a bold step, the ncl devoted a section of its description of work in the informal sector to sex workers. noting that the issue of considering sex work as a form of labour was raised only furtively and only once during the ncl’s several consultations all over the country, the ncl proceeded to take the view that sex workers should be considered as self-employed workers. in their words: there are no grounds today, to believe that the phenomenon, or if one wants to term it a ‘profession’, will disappear merely through exhortation. and as long as it exists, we have to recognise that it is related to exploitation, inhuman conditions and public health.[footnoteref:42] [42: id. at 614.] the ncl then invoked the unmentionable dangers of the aids pandemic to public health to assert that: in the interest of public health, sex-workers need to be subjected to periodic health checks. to ensure this, they have to be registered. in terms of protection and welfare as workers, they have to be considered as self-employed workers. they should, therefore, have the facility to be registered as self-employed workers with access to health policies, insurance etc. that all self-employed workers will be entitled to under the schemes that we have recommended. as for the need to ensure safe and humane working conditions and protection from occupational hazards, we have not gone into the related questions in detail.[footnoteref:43] [43: id.] the ncl’s recommendations were not entirely satisfactory, since it seemed to propose a conventional model of legalization (involving periodic health check-ups), which indian sex workers’ groups were opposed to. yet the commission identified sex workers as self-employed workers who could avail of the same scheme of social security benefits as other workers in the unorganized sector. in other words, sex workers were treated on par with other workers, which has for long been a key demand of indian sex workers’ groups. this recognition of women’s reproductive labour by a state agency offers hope for a similar recognition of the labour of women like bar dancers and commercial surrogates. in line with the ncl’s original mandate, the ncl proposed an unorganized sector workers bill,[footnoteref:44] an umbrella legislation, which sought to include recognition for all workers in the unorganized sector, economic security, social security, removal of poverty and elimination of child labour, to encourage the formation of membership-based organizations of workers including trade unions and to ensure the representation of the workers through their organizations in local and national economic decision making. social security would be work-linked and would include healthcare (maternity, injury), childcare, shelter and old age support. once this umbrella legislation was in place to provide for basic protection, the ncl opined, then states could pass special laws for specific sectors. [44: id. at 740.] the proposals of the ncl were not implemented immediately. in 2008, the indian parliament passed the unorganised workers’ social security act, 2008. this act heralds a third significant moment in the development of indian labour laws. where an explicit commitment to workers’ rights formed the foundation of earlier generations of labour laws, the 2008 act is geared towards providing welfare to economically vulnerable segments of the population. in definitional terms, parliament seems to have taken cognizance of the difficulties involved in applying conventional labour laws to the informal economy. thus, under the 2008 act, the unorganized sector is defined in terms of enterprises employing less than ten workers who are either engaged in the production or sale of goods or provision of services. the term “unorganized worker” is defined to include a home-based worker, self-employed worker or a wage worker as well as a worker in the organized sector who is not covered by any of the legislations specified in the statute. a wageworker in turn is one who works in the unorganized sector for a monthly wage at a level notified by the federal or state governments. the definition of a wageworker in turn includes a home-based worker, temporary or causal worker, or a migrant worker or workers employed in households as domestic workers, but excludes childcare workers.[footnoteref:45] [45: ts sankaran, “a critique of india’s unorganised workers’ social security act, 2008”, lawyers magazine, 16 february 2009, available at http://www.lawyerscollective.org/magazine/dec2008-jan2009/feature-5. ] as i have already noted, the most significant benefits of labour laws for workers in the informal economy relate to wage protections and social security benefits rather than the regulation of the conditions of work or the resolution of industrial disputes. the 2008 act, in dealing with social security benefits, recognizes this need of workers in the informal economy. however whether the 2008 act actually delivers on the provision of comprehensive social security benefits in full recognition of the work of those in the unorganized sector is another matter. the 2008 act is structurally weak in delivering on this promise. to begin with, the term “social security” is not defined in the act and is used interchangeably with “welfare”.[footnoteref:46] the federal government may, in the words of the statute, introduce welfare schemes relating to life and disability cover, health and maternity benefits and old age protection. schemes listed in a schedule to the statute are deemed to be welfare schemes for the purposes of the act. under the act, the state government may formulate welfare schemes for workers in the unorganized sector that pertain to the provision of provident funds, employment injury benefits, housing, educational schemes, skill up gradation services, funeral assistance and old age homes. yet the act only permits, rather than obligates, the federal and state governments to introduce welfare schemes for the benefit of unorganized workers. consequently, as of 2012, only four states had notified the formation of social security boards, which are required to be formed under the statute. moreover, the federal schemes listed in the schedule to the 2008 act were essentially already-existing poverty alleviation schemes for those living under the poverty line. this caused commentators to ask whether workers in the unorganized sector were being demarcated into more worthy (under the poverty line) and less worthy (above the poverty line) workers.[footnoteref:47] [46: id. ] [47: p goswami, “a critique of the unorganised workers’ social security act, 2008”, economic and political weekly, 14 march 2009, 17-18.] further on wage issues, the act makes no mention of a national minimum wage, nor does the act penalize the non-payment of adequate wages in a timely fashion.[footnoteref:48] the act does not mandate certain minimum conditions of work.[footnoteref:49] critics argue that the 2008 act lacks an overarching grievance redress mechanism based on a tripartite model. instead, workers are required to bring up their grievances before scheme-specific redress mechanisms. trade unions have no role to play under the 2008 act in ensuring that the rights of unorganized workers are realized.[footnoteref:50] labour scholars worry that the monolithic boards envisaged at the federal and state levels are wholly inadequate for addressing the complexity and range of occupations that fall within the ambit of the unorganized sector. the overall structure of the act and the lack of any detailed and meaningful provisions as to core demands of workers’ rights organizations has led commentators to observe: “overall, the language of the act is not one of giving rights to the unorganised sector workers at par with the workers in the organised sector, but rather to confine their status as beneficiaries of government schemes.”[footnoteref:51] [48: id. at 17.] [49: id. at 18.] [50: sankaran, supra note 44.] [51: goswami, supra note 46, at 18.] in the period following the economic reforms of 1991, it is clear that new labour laws are unlikely to protect the rights of workers in the way that the two prior generations of indian labour laws did. the indian situation where labour law has been absorbed into development policy is hardly unusual, as other labour law scholars have elaborated on the increasing fragmentation of labour law.[footnoteref:52] another instance of such fragmentation in the indian context is the national rural employment guarantee (nreg) scheme provided by the state, wherein all adults living in rural areas can avail of 100 days of employment for which workers can receive the guaranteed minimum wage. some labour activists have welcomed the nreg, offering as it does 100 days of guaranteed employment in rural india for the minimum wage. yet, one could also view these developments skeptically in light of observations by postcolonial theorists like partha chatterjee on the emergence of a governmentalized developmental state, which is essentially viewed as preserving the hegemony of global capital by dispensing benefits to population groups whose claims to citizenship are compromised for one reason or another, usually due to some aspect of their life being illegal. [52: k rittich, “precarious work and the fragmentation of international labour law” (draft on file with author).] the dilemmas of applying labour law to reproductive labour even as i have shown how it is the second generation of indian labour laws that are the most beneficial for female reproductive labourers engaged in invisibilized service-oriented work, we should bear in mind that sectors of invisible work like sex work, dancing and surrogacy are by no means homogenous. they are highly internally differentiated sectors; some sex workers earn enough to invest in mutual funds and real estate while others earn enough to just meet basic needs. it is the same with bar dancers, where at the heyday of bar dancing before it was banned, a bar dancer in a top bar could earn almost twice as much per night as a stripper in a new york club.[footnoteref:53] in trendy bars, earnings equalled corporate salaries. similarly, commercial surrogates can earn substantial amounts of money relative to their educational and skill levels. in one of the fertility clinics in gujarat, which pioneered commercial surrogacy in india, for instance, women earn 300,000 rupees per live delivery. compare this to say a domestic worker in a big indian city who might earn 2000 rupees a month for two hours of daily domestic work in a single household. moreover, as the surrogacy sector has developed in india, only married women can become surrogates and they usually undertake only two transactions. the time frame of women’s involvement in the other two sectors in comparison is much longer. [53: s mehta, maximum city: bombay lost and found, penguin books india, 2004, at 248.] it is this very heterogeneity of reproductive labour markets and the diverse interests that women develop within them that explains the variety of positions that they occupy in relation to the law. sex workers’ groups for instance might occupy any position between two ends of the spectrum, from wanting no interference from the state at one end to lobbying for labour laws tailored to meet the needs of sex workers. interestingly, it is in sex work where women’s claims to the recognition of labour are best articulated. in the other two sectors i consider here, the dynamics of rights claims are quite different. in the case of bar dancing, despite the existence of dance bars since the 1960s, bar dancers mobilized only in the late 1990s by protesting against poor pay and working conditions and their treatment as pawns between the state and bar owners during police raids. when bar dancing was banned from the state of maharashtra by an amendment to the bombay police act in 2006, it was bar owners’ associations that challenged the constitutionality of the amendment in the mumbai high court. bar dancers simply rallied behind these associations in the litigation against the state. their alliance with the bar owners’ associations was far from seamless, for the bar dancers' union restricted itself in pre-ban litigation to the conduct of police raids and in the post-ban phase to the lack of rehabilitation. still, the associational life of bar dancers was sparse and, consequently, organizational claims to representation weak. collective rights consciousness however, is the weakest in the commercial surrogacy industry when compared to sex work and bar dancing. the strong ideology of motherhood and expected altruistic behaviour undoubtedly permeates surrogates’ understanding of the reproductive labour they perform. however, the establishment of large surrogacy hostels by major players in the sector (at least as it has developed in india) means that there will be space for moments of ‘cognitive liberation’ amongst the surrogates. as it is, since surrogates live together over a period of six to nine months, they are all aware of each other’s remuneration levels per live birth, which is highly uniform. this lays the foundation for bargains to be struck with the fertility clinics and holds promise for the development of a labour consciousness over time. based on my elaboration of the architecture of indian labour laws and its applicability to female reproductive labour so far, two dilemmas emerge, both suggesting a lower relevance for labour law than initially assumed. the first is whether the most relevant set of indian labour laws, namely, the second generation laws geared towards the unorganized sector, can do any more for reproductive labourers than simply provide a safety net for the most disenfranchised of these workers, as these laws do not in their current form seem to be able to fundamentally restructure the industry. to illustrate, labour laws such as the tamil nadu manual workers’ act can provide significant social security and wage benefits to sex workers, bar dancers and commercial surrogates if schemes under such a law can take into account the specificities of the said sectors. is such a law, however, able to produce substantial shifts in these sectors such that women can earn the most from the sale of their reproductive labour within the shortest possible time, given that earning capacity in these sectors is front-ended? can the role of intermediaries in these sectors be minimized and is labour law the best mechanism to achieve this? the second dilemma is whether the minimalist benefits of existing labour laws cannot be achieved through membership-based organizations. the largest indian sex workers’ organization, the dmsc, for instance, provides its members access to credit, basic health, children’s education, and possibilities for exit through training for other forms of employment. sex workers’ groups also engage in protest politics wherein women’s bodily integrity is maintained against the rent-seeking practices of the state and other stakeholders. self-regulatory boards meanwhile prevent the trafficking of girls and women into the sector. in light of these significant dilemmas for labour law, we might ask ourselves not whether sex workers need recognition on the terms on current labour laws, but how labour law itself can be reconceptualized by drawing on the intensely local efforts at self-regulation and mobilization undertaken by sex workers. what then are the conditions of possibility for such ‘labour law from below’ and can it be replicated elsewhere? key to the successes of the dmsc and its phenomenal mobilization of sex workers (which i characterize as a social movement elsewhere)[footnoteref:54] is the spatial concentration of around 10,000 sex workers in a densely populated red-light area. ironically, it is the very abject nature of socially stigmatized forms of labour like sex work, bar dancing and commercial surrogacy that lead to their being concentrated in certain parts of the third world city. this spatial congregation of female reproductive labourers enables or offers the potential for their radicalization. labour law to be relevant here needs to be reimagined in a flat, area-based way. the second national commission for labour for instance discussed an area-based social assistance scheme in its 2002 report. due to the limited applicability of social insurance and welfare funds to the unorganized sector, the scheme envisaged that all adult workers in a geographical area would have access to it irrespective of the nature and duration of employment or place of work. individuals would be included so that women workers did not get left out, as would be the case if the family unit were the recipient of the benefit. benefits would include insurance against death or disability, health insurance and old age benefits and contributions linked not to wages but involving the payment of flat rates. such a scheme could apply to areas where female reproductive labourers congregate, including red-light areas, dance bars, and surrogacy hostels. [54: kotiswaran, supra note 34. ] conclusion in this article, i have sought to argue that feminists ought to more fully recognize the reproductive labour performed by women, whether for the institution of marriage or for the market. in other words, the mere fact that women perform labour for the market that would otherwise be performed solely for the family should not be viewed as an exceptional form of violence but as forming a part of the continuum of women’s labours more generally. if we were to take on board this normative argument, how might labour law recognize such labour? i have shown that in the context of developing countries, laws geared towards the unorganized sector hold promise for female reproductive labourers. in a period of the intensifying neo-liberal economic policies where labour laws are increasingly watered down and limited to offering welfare benefits rather than rights that could achieve large-scale redistribution, the use of labour laws to recognize female reproductive labour does seem to be in question. yet, i insist that labour laws can be re-envisioned either in sector-specific or area-based terms to attempt redistribution in conjunction with the reform of other legal rules germane to the sector at hand (licensing law in the case of bar dancing or medical law in the case of commercial surrogacy) and membership-based initiatives of reproductive labourers themselves. meanwhile, reproductive labourers themselves could well occupy the vanguard of the informal economy. for example, dmsc is actively organizing domestic workers, embroidery workers and construction workers in kolkata while also having launched a public interest litigation challenging the constitutionality of the anti-sex work criminal law, with a view to paving the way for labour law reform for sex workers. i will end with a note for feminist politics — for the longest time, we have spent our intellectual resources gendering the labour movement and labour law. interestingly the labour movement is today less influential while feminists (and women’s movements) have assumed considerable influence, especially in criminal law reform, exemplified by what some of us have called governance feminism.[footnoteref:55] in this moment of ascending power, feminists are as prone to excluding men as the labour movement was at its heyday when it excluded gender concerns. to illustrate, in 2013 when far-ranging rape law reforms were introduced in india, trafficking was criminalized. however, the definition of trafficking excluded forced labour, a condition under which many men labour. this leaves us with two questions; can feminists in labour law learn something from feminists working in criminal law? how is it that feminist views on violence against women have today become legal common sense whereas our attempts to gender labour law have met with limited success? second, how should a project of gendering labour law account for the interests of men? [55: j halley, p kotiswaran, h shamir and c thomas, “from the international to the local in feminist legal responses to rape, prostitution/sex work and sex trafficking: four studies on contemporary governance feminism” (2006) 29:2 harvard journal of law and gender 335, also available at http://www.law.harvard.edu/students/orgs/jlg/vol292/halley.pdf.] _____________________________________________________________________________________________ 14 _____________________________________________________________________________________________ 15 nipuna varman decertification of legal gender in india ______________________________________________________________________________________________________________ feminists@law vol 11, no 1 (2022) ______________________________________________________________________________________________________________ what gender does: decertification of legal gender in india nipuna varman* abstract this article explores the implications of decertification of legal gender in the indian context, with a particular focus on the religious sphere. it explores the discourse on gender as it currently exists in india and suggests that imagining a future with no legal gender is a fruitful exercise. the article looks at the conception of gender as property to explore how recognition is granted to such property. it argues that the absolute withdrawal of the state from the sphere of gender may lead to persons being forced to conform to social conceptions of gender. therefore, it differentiates between the idea of decertification and gender blindness of the state. additionally, it argues for an approach to the idea of property that does not isolate it but recognises the ideas of interdependency, relational autonomy and non-domination. the effect of decertification on religious institutions in india is firstly understood based on the extent of state control over religion and religious institutions. the article observes that in the indian context the relationship between the state and religion is to some extent unclear. however, the decertification exercise will make the gendered construction of religious laws difficult to maintain, especially the codified religious laws. introduction in india, certain places of worship have traditionally not allowed ‘women’ to enter their premises. for example, haji ali dargah, did not allow women into the sanctum sanctorum of the dargah, or the sabarimala temple which restricted the entry of women who were in their ‘reproductive age’, i.e., ages 10 to 50. both such practices were struck down by the supreme court of india.[footnoteref:1] while the former based its logic in maintaining the sanctity of female chastity, the latter had its root in the notion of impurity attached to menstruation. not only do such practices equate menstruation with impurity but also equate it entirely to womanhood.[footnoteref:2] the judicial dicta on these issues have been challenged by some who question the interference of the state in matters pertaining to religious institutions. in the indian context, the relationship between the state and religion is complex. while the indian state does not endorse any religion, there is some state involvement in religious affairs without absolute separation between state and religion.[footnoteref:3] [1: * student, european master in law and economics, erasmus university rotterdam. email nipuna.varman@emle.eu. thank you to professor davina cooper for reviewing multiple drafts of this article and for suggesting revisions. special thanks to lena holzer and shelley leung for their valuable insights on gender and the decertification of legal gender. dr. noorjehan safia niaz and anr v state of maharashtra and ors, 2016 (5) abr 660; indian young lawyers’ association v state of kerala, 2018 scc online sc 1690.] [2: menstruation being understood as an experience of all women and exclusive to women is incorrect. each person who identifies as a woman need not experience menstruation and each person who experiences menstruation need not identify as a woman. this is explained in more detail under part i of this article. ] [3: this will be discussed under part ii of this article. ] in this context, this article aims to engage in an exploratory exercise to determine, what decertification of gender by the indian state could or should look like. if the state was to withdraw from the exercise of certifying gender, what would be the implications of such withdrawal and in particular, what would it mean for religious rules, laws, and customs? this article seeks to speculate on the effect of decertification in india, especially in the religious sphere. sex and gender, in recent years, have been at the forefront of heated debates.[footnoteref:4] while many countries are increasingly providing legal recognition to the ‘third gender’ there has been a call to understand gender in a wider manner which provides individuals with the freedom to choose their own identities.[footnoteref:5] in india, the ‘third gender’ was legally recognised by the indian supreme court in 2014 in nalsa v union of india.[footnoteref:6] the supreme court in this judgment recognised the right to self-determination of one’s gender identity. it held that the term ‘gender’ was included within the understanding of ‘sex’ under the indian constitution.[footnoteref:7] the ideas of self-determination and autonomy were linked to the ideas of liberty and dignity under article 21 of the constitution.[footnoteref:8] further, article 19(1)(a) of the constitution, which protects an indian citizen’s right to freedom of speech and expression, was held to protect a person’s gender identity as well. subsequently, in the case of navtej singh johar & ors v union of india,[footnoteref:9] the supreme court read down section 377 of the indian penal code, 1860 that criminalised same-sex relationships between consenting adults. through this ruling, the court upheld an individual’s right to self-determination and dignity. [4: the difference, or the lack of it, between sex and gender is extensively debated and discussed. see, judith butler, gender trouble: feminism and the subversion of identity (routledge 1989); toril moi, what is a woman?: and other essays (oxford university press 1999); mari mikkola, ‘ontological commitments, sex and gender’ in charlotte witt (ed), feminist metaphysics (springer 2011); sharon cowan, ‘“gender is no substitute for sex”: a comparative human rights analysis of the legal regulation of sexual identity’ (2005) 13 feminist legal studies 67. for ease of understanding, this article uses the term 'gender' to cover both gender and sex including the assignment of such identity and the identity itself. ] [5: davina cooper and flora renz, ‘if the state decertified gender, what might happen to its meaning and value?’ (2016) 43 journal of law and society 483; maría victoria carrera, renée depalma and maria lameiras, ‘sex/gender identity: moving beyond fixed and “natural” categories’ (2012) 15 sexualities 995.] [6: nalsa v union of india, air 2014 sc 1863.] [7: articles 14, 15, and 16 of the indian constitution provide for equality before law, non-discrimination by the state, and equality of opportunity, respectively. the three articles cover ‘sex’ in their ambit and after nalsa v union of india ‘gender’ has been understood within the ambit of ‘sex’.] [8: article 21 of the indian constitution provides the right to life and liberty to all persons. the right to life has been interpreted to include the right to live with human dignity: maneka gandhi v union of india, 1978 air 597; francis coralie v union territory of delhi, 1981 air 746; bandhua mukti morcha v union of india, 1984 air 802. this right to live with dignity includes a wide range of rights that the supreme court of india has read into its framework. for example, in peoples union for democratic rights v union of india, 1982 air 1473, the non-payment of minimum wages to the workers was held to be a denial of the workers’ right to live with basic human dignity and consequently, a violation of their article 21 rights. similarly, in the nalsa judgment, the interpretation of ‘dignity’ under article 21 was widened to include diversity in self-expression. the gender identity of a person was placed within the understanding of the fundamental right to dignity. ] [9: navtej singh johar & ors v union of india, wp (crl) no 76 of 2016 d no 14961/2016.] however, there is criticism from within the lgbtqia+ community for the manner in which these cases have been argued in front of the supreme court and for how the court has responded to the issue.[footnoteref:10] it has been argued that the characterisation of criminalisation of same-sex relationships and lack of state sanction over transgender identities or any other self-determined gender identity has been centred around the notion of family, love, and the romanticised idea of dignity.[footnoteref:11] however, there has been little to no acknowledgment of the state violence towards persons based on their gender, specifically when such gender is thought to be opposed to social mores or differs from the gender assigned at birth. the everyday state sanctioned detention of transgender persons, police brutality towards the queer community and discrimination and violence faced by the dalit queer community were neither argued (or argued effectively) before nor addressed by the supreme court.[footnoteref:12] [10: ‘guruswamy and katju, your rainbow doesn’t hide your casteism’, akademi mag (24 september 2020) <https://www.akademimag.com/guruswamy-katju-rainbow-casteism> accessed 28 september 2020.] [11: ibid.] [12: ibid.] in addition, caste is reproduced through a complex web of relationships built in the society.[footnoteref:13] these relationships lay down the structure of daily lives through housing markets, employment opportunities, educational opportunities, businesses, etc.[footnoteref:14] these kinship networks are maintained through endogamous marriages.[footnoteref:15] such desire for heterosexuality and caste endogamy then becomes an essential part of maintaining unequal social structures.[footnoteref:16] the judgments such as navtej singh johar talk about the right to love freely but do not pay attention to the role of caste in queer relationships and queer lives. for example, section 377 affected the marginalised castes the most as people involved in professions like sex work on the streets are the ones most susceptible to police brutalities.[footnoteref:17] but the manner in which arguments were advanced in navtej singh johar and the judgment that followed, focused on the perspective and voices of the ‘upper’ caste (savarna). it is also important to note that caste and gender hierarchies maintain each other.[footnoteref:18] it must therefore be noted that an exercise like decertification in india may have caste-related implications which have to be taken into consideration.[footnoteref:19] [13: see ujithra ponniah and sowjanya tamalapakula, 'caste-ing queer identities' (2020) 13 nujs law review 3.] [14: id.] [15: id.] [16: id. for example, in 2015 a matrimonial advertisement placed by a mother for her gay son became extremely popular on the internet. the advertisement sought a prospective vegetarian (a marker of savarna ideals of ‘purity’) groom and stated ‘caste no bar (though iyer preferred)’, iyer being a savarna caste identity. this advertisement has been often seen as a reflection of the lack of caste discourse in the queer community where ‘upper’ caste identities become the face of the movement. see ‘iyer groom wanted for son: cheer it or not, india’s first gay matrimonial ad is not "casteist"’, firstpost (22 may 2015) <https://www.firstpost.com/living/iyer-groom-wanted-for-son-cheer-it-or-not-indias-first-gay-matrimonial-ad-is-not-casteist-2256294.html> accessed 25 october 2021; ‘the casteist gay-groom ad is a hard lesson for civil rights activists’, the news minute (20 may 2015) <https://www.thenewsminute.com/article/casteist-gay-groom-ad-hard-lesson-civil-rights-activists-32006> accessed 25 october 2021; ians, ‘matrimonial ad for gay son stirs lively debate’, business standard india (24 may 2015) <https://www.business-standard.com/article/news-ians/matrimonial-ad-for-gay-son-stirs-lively-debate-feature-with-images-115052400246_1.html> accessed 25 october 2021.] [17: ponniah and tamalapakula (n 13).] [18: ibid.] [19: gender and caste are co-constitutive in nature; these hierarchical systems feed into each other and maintain social hierarchies. see, ‘castes in india: their mechanism, genesis, and development, by dr br ambedkar’ <http://www.columbia.edu/itc/mealac/pritchett/00ambedkar/txt_ambedkar_castes.html> accessed 27 may 2021; sharmila rege, ‘brahmanical patriarchy: how ambedkar explained the links between caste and violence against women’, scroll.in (21 november 2018) <https://scroll.in/article/902839/brahmanical-patriarchy-how-ambedkar-explained-the-links-between-caste-and-violence-against-women> accessed 1 may 2021; ‘social reproduction, constitutional provisions and capital accumulation in post-independent india’ (2015) 55 economic and political weekly 7.] the legislation enacted after the nalsa judgment, the transgender persons (protection of rights) act, 2019, did not have any regard for the transgender rights movement – which advocated for self-identification. rather, this legislation requires individuals to undergo invasive medical procedures and gender affirming surgery to have their birth certificate indicate their identity.[footnoteref:20] the transgender persons (protection of rights) rules, 2020 defines the medical intervention in a broad manner. it includes counselling, hormonal therapy, etc. as medical interventions. the act refers to surgery but the rules are broader. however, neither the act nor the rules allow for self-identification as was prescribed in the nalsa judgement. [20: transgender persons (protection of rights) act, 2019, ss 6 and 7.] the idea of self-identification in itself is not novel. many jurisdictions have brought forth such recognitions and changes.[footnoteref:21] the yogyakarta principles state that a person’s self-identified sexual orientation and gender identity is an integral part of their personality. further, these principles state that mandating persons to undergo medical procedures like sterilisation, hormone therapy, gender affirming surgery, etc. to justify their gender identity goes against the ideas of self-determination, dignity, autonomy and freedom.[footnoteref:22] [21: ‘denmark: changing legal sexual identity simplified | global legal monitor’ <https://www.loc.gov/law/foreign-news/article/denmark-changing-legal-sexual-identity-simplified/> accessed 18 august 2020.; ‘norway becomes fourth country in europe to introduce model of self-determination | ilga-europe’ <https://www.ilga-europe.org/resources/news/latest-news/norway-introduces-self-determination> accessed 18 august 2020.; ‘malta adopts ground-breaking trans and intersex law – tgeu press release’ <https://tgeu.org/malta-adopts-ground-breaking-trans-intersex-law/> accessed 18 august 2020.] [22: yogyakarta principles on the application of international human rights law in relation to sexual orientation and gender identity, principle 3.] in india, jayna kothari in her article on the right to self-determination argues against the medical model of recognition of gender-identity. she argues that the medical model goes against the right to dignity, autonomy and freedom of persons.[footnoteref:23] further, kothari argues that the supreme court in the nalsa judgment, by ordering legal recognition of gender identities into defined categories – male, female or third gender – as a precondition to access welfare schemes, employment, etc. has made gender identity an essential part of one’s existence to enjoy civil rights.[footnoteref:24] these liberties would consist of access to a passport, ration cards, driver’s license, education, reservation schemes, voter identity cards, etc.[footnoteref:25] however, this emphasis on gender identity in accessing socioeconomic and civil rights must be questioned. why does one need to disclose their gender identity to gain access to basic documents such as a driver’s license?[footnoteref:26] the supreme court, in nalsa, refers to gender identity as a person’s self-identification as man, woman, transgender, or other identified category.[footnoteref:27] it appears that for the invocation of one’s preferred gender identity such identity must be an identified category, i.e., a category that carries state sanction. [23: jayna kothari, ‘trans equality in india: affirmation of the right to self-determination of gender’ (2020) 13 nujs law review 13.] [24: ibid.] [25: ibid.] [26: ‘call to remove gender from uk passports and driving licences’, the guardian (2 january 2016) <http://www.theguardian.com/world/2016/jan/02/call-to-remove-gender-from-uk-passports-and-driving-licences> accessed 28 september 2020.] [27: nalsa v union of india, air 2014 sc 1863.] recently, in india, a petition has been filed in the telangana high court by a couple asking for the introduction of ‘no religion, no caste’ columns in all official application forms to secure documents like a birth certificate.[footnoteref:28] the couple state that they do not wish to give their child any particular religion or caste.[footnoteref:29] can a similar future be seen for state specified legal gender?[footnoteref:30] [28: marri ramu, ‘hc notices to centre, state on “no religion, no caste” status’, the hindu (hyderabad, 28 april 2020) <https://www.thehindu.com/news/cities/hyderabad/hc-notices-to-centre-state-on-no-religion-no-caste-status/article31456656.ece> accessed 28 september 2020.] [29: ibid.] [30: there is litigation in british columbia for issuance of birth certificates without the gender of the child. see maryse zeidler, ‘parent fights to omit gender on bc child’s birth certificate | cbc news’, cbc (1 july 2017) <https://www.cbc.ca/news/canada/british-columbia/parent-fights-to-omit-gender-on-b-c-child-s-birth-certificate-1.4186221> accessed 25 march 2021; ‘gender-free id coalition’ <http://gender-freeidcoalition.ca/> accessed 25 march 2021.] gender has, in recent times, been looked at differently. instead of categorising gender identities the discussion has been relocated to the conceptualisation of gender. it is being looked at as a ground of discrimination rather than as an object that belongs to a person or defines a person.[footnoteref:31] the reconceptualisation of gender locates the idea in a private space subject to minimal state regulation. the idea has shifted from the state certifying varied gender identities to the withdrawal of the state from certifying any gender.[footnoteref:32] [31: cooper and renz (n 5).] [32: ibid; carrera, depalma and lameiras (n 5); lila braunschweig, ‘abolishing gender registration: a feminist defence’ (2020) 1 international journal of gender, sexuality and law <https://www.northumbriajournals.co.uk/index.php/ijgsl/article/view/987> accessed 18 august 2020.] in india, the idea of decertification has not been fully explored. however, scholars in the international sphere have been engaging with this question extensively.[footnoteref:33] decertification reimagines the conceptualisation of gender for all members of a polity instead of the creation of legal gender categories by the state. it is a practice that will allow all members to self-identify, possibly in a more fluid manner where people are not put into strict and fixed categories. when the state withdraws from assigning legal gender the question to be asked is whether the state then withdraws from recognising gender? many advocates of decertification have answered this question in the negative.[footnoteref:34] [33: cooper and renz (n 5).; carrera, depalma and lameiras, ibid.; braunschweig, ibid.; pieter cannoot and mattias decoster, ‘the abolition of sex/gender registration in the age of gender self-determination: an interdisciplinary, queer, feminist and human rights analysis’ (2020) 1 international journal of gender, sexuality and law <https://212.124.193.220/index.php/ijgsl/article/view/998> accessed 11 june 2021.] [34: cooper and renz, ibid.] the indian constitution empowers the state to make special provisions for women and children.[footnoteref:35] however, there is no clarity on who counts as a woman. if women are identified as people born in the female sex, then what happens to self-identified women and people from other genders who face exclusion and oppression? further, indian law is reliant – to some extent – on the conception of gender for its interpretation of equality legislation, personal laws,[footnoteref:36] and religious customs. protections have been extended to women through various laws, for example the maternity benefit act, 1961, the sexual harassment of women at workplace (prevention, prohibition, redressal) act, 2013, etc. even within the hindu succession act, women were given a share in the family property through an amendment in 2005.[footnoteref:37] however, gender identity beyond the binary of men and women or male and female has not been envisaged.[footnoteref:38] as noted above, gender identity plays a central role for access to welfare schemes and basic documentation requirements. this was evident in the supreme court’s recognition of transgender persons in nalsa v union of india,[footnoteref:39] where the centre and state governments were directed to legally recognise gender identities of persons as male, female or third gender to ensure access to public employment, reservations, and welfare schemes. apart from equality legislations, religious laws and customs tend to extensively use gender markers to govern various religious aspects of the community.[footnoteref:40] [35: constitution of india, part iii, article 15(3).] [36: personal law refers to laws applicable to religious groups that govern subjects like marriage, succession, divorce, guardianship, etc. each religious group is governed by separate sets of personal laws. for example, the hindu marriage act, indian christian marriage act, hindu succession act, etc.] [37: the hindu succession (amendment) act, 2005.] [38: an exception to this would be the reframing of the equal remuneration act, 1976. the major principle in this legislation was the parity in remuneration between men and women. this legislation also defined both the categories as ‘male and female human beings’. the recent code on wages, 2019 would subsume within itself the payment of wages act, 1936, the minimum wages act, 1948, the payment of bonus act, 1965, and the equal remuneration act, 1976. the code in its provisions dealing with equal remuneration guarantees equal wages to all genders. while the provisions in the soon to be repealed equal remuneration act indicated that the law only took notice of the binary understanding of gender, the new code goes beyond that to refer to ‘all genders’. this indicates that a person cannot be given lesser pay for work of ‘same or similar nature’ based on their gender identity.] [39: nalsa v union of india (n 3).] [40: some examples are triple talaq, preventing women from entering public spaces of worship; not allowing hindu women to perform the last rites of their family members, especially cremation; dowry; sati (which was criminalised during the colonial period). ] to understand the potential implications of decertification, i will undertake the discussion in two parts. part i will look at the propertied conception of gender to tease out the question of how recognition is granted to such property. this question will be examined through three possible forms of recognition – recognition from the state through registration, recognition based entirely on social negotiations, and recognition through state and non-state institutions who can choose to cater to certain gender groups. understanding of gender as property will provide the framework to consider decertification as an exercise undertaken by the indian state. it will allow one to appreciate the difference between withdrawal of the state from registering gender and recognising gender (and the oppression that comes with it). property in its associations of both privacy and interdependency provides the groundwork to understand gender and the decertification exercise. part ii will examine whether the rules made by religious institutions are subject to state regulation and the mandate of the indian constitution. in other words, it will assess the overlap between the state and religion in india. the act of decertification by the state will only bear significance in the religious context when the laws governing religion and its institutions are subject to scrutiny by the state. there has been a substantial amount of debate in the constitutional jurisprudence of india regarding the applicability of fundamental rights enumerated in part iii of the constitution to religious personal laws. article 26 of the constitution empowers religious denominations to function independently and manage their own affairs, subject to public order, health, and morality.[footnoteref:41] therefore, to understand the effect of decertification on religious institutions, the constitutional role of the state in religious affairs must be determined. [41: constitution of india, part iii, art.26.] religion is an extremely important as well as an intrinsic part of indian society. barriers to access to religious institutions, restriction on free practice of one’s faith, denial of dignity within the religious mandate, are all issues that have been a part of the gender discourse in india. laws governing civil actions like marriage, divorce, succession, adoption, etc., i.e., personal laws, in india are based on the religious identity of the person.[footnoteref:42] it has been argued frequently that many such personal laws are inherently gendered and binary in nature.[footnoteref:43] it must be noted that these laws have a colonial background. it has been argued that the laws governing such aspects in the pre-colonial period were based on traditions and customs that were flexible. codification of these laws by the british resulted in regressive laws being solidified which were earlier subject to change with time.[footnoteref:44] however, it is interesting that even after independence personal laws were decidedly kept out of the purview of the indian constitution despite them being exclusionary and discriminatory towards minority communities.[footnoteref:45] [42: some examples of such laws are the hindu marriage act, 1955; hindu adoption and maintenance act, 1956; hindu succession act, 1956; parsi marriage and divorce act, 1936; shariah application act, 1937; dissolution of muslim marriages act, 1939; indian christian marriages act, 1872; divorce act, 1869. however, it must be noted that laws like the special marriage act, 1954 provide for civil marriages irrespective of one’s religious identity.] [43: indira jaising and de silva de alwis, ‘the role of personal laws in creating a “second sex”’ (2016) 48 international law and politics 1085;‘personal laws versus gender justice: will a uniform civil code solve the problem?’ [2015] economic and political weekly 7; ‘what india needs is more gender just laws, including personal laws, for its women’, cjp (12 june 2017) <https://cjp.org.in/what-india-needs-is-more-gender-just-laws-including-personal-laws-for-its-women/> accessed 18 august 2020.] [44: christine keating, ‘framing the postcolonial sexual contract: democracy, fraternalism, and state authority in india’ (2007) 22 hypatia 130.] [45: ibid.] this article acknowledges that decertification in the indian scenario may give varied results in various other aspects of social and cultural life. however, the scope of exploration is narrow as the article is only looking at the possible implications of decertification on religious institutions and practices in india. part i who must recognise gender? the propertied conceptualisation of gender allows for the exploration of the relationship a person has with their gender. there is evidence that the ancient texts in hinduism, jainism and islam (among other religions) refer to the ‘third sex’ for persons who do not fall into the male/female binary.[footnoteref:46] however, in the modern indian legal framework until 2014 one could only identify as male or female. while the nalsa judgment introduced a third category of gender identity, state sanction over gender still remains important, especially for access to one’s civil rights. indian society has also continued to discriminate against and ostracise persons who do not fall within the binary idea of gender.[footnoteref:47] consequently, gender identity is assumed to always be in line with the gender assigned at birth. therefore, the conflict between gender assigned at birth and gender identity has been bypassed by the law. the perception of assigned gender in law is much like tangible property, where it is understood to be bounded and fixed. the principle of numerus clausus in property law can be understood in the context of assigned gender where the state only recognises certain limited identities.[footnoteref:48] this article seeks to argue that decertification of gender is an alternative form of relationship between gender and the state. the likening of gender to property, while providing an avenue for self-ownership (an aspect which will be discussed subsequently), brings out the question of certification and recognition of property. if gender is reimagined as property that a person can own then it must be asked if this property requires recognition and who must provide such recognition. [46: sara hylton, jeffrey gettleman and eve lyons, ‘the peculiar position of india’s third gender’, the new york times (17 february 2018) <https://www.nytimes.com/2018/02/17/style/india-third-gender-hijras-transgender.html> accessed 8 december 2021; leonard zwilling and michael j sweet, ‘“like a city ablaze”: the third sex and the creation of sexuality in jain religious literature’ (1996) 6 journal of the history of sexuality 359.] [47: see, ‘india’s intersex community faces job discrimination, forced surgeries, and sexual abuse’, global citizen (16 august 2019) <https://www.globalcitizen.org/en/content/india-intersex-discrimination-forced-surgery/> accessed 8 december 2021; shreya raman, ‘denied visibility in official data, millions of transgender indians can’t access benefits, services’, indiaspend (11 june 2021) <https://www.indiaspend.com/gendercheck/denied-visibility-in-official-data-millions-of-transgender-indians-cant-access-benefits-services-754436> accessed 8 december 2021.] [48: numerus clausus, in property law refers to the limited kinds of rights that can be termed as ‘property’ by the courts. ] the recognition of such gender property could be left in the hands of the state much like the existing paradigm, which could result in an increasing number of gender ‘boxes’ and possible exclusion when one does not fit into any of the categories. that is, legal recognition from the state becomes a reason for exclusion or oppression for some. the nalsa judgment preceded navtej singh johar which read down section 377 of the indian penal code, 1860. this meant that trans women, specifically those who were engaged in sex work, who were in theory recognised by the state as ‘third gender’, were also susceptible to criminalisation as men subject to the perception of the local state actors. in india where currently there is no mechanism in place to understand gender in all its complexity, state recognition ultimately trickles down to local actors of the state who engage in the exercise of determining a person’s gender. this determination is very specific to the class, caste, and gender location of the state actor and the person in question. further, caste and gender being structures that preserve each other,[footnoteref:49] the gender-based determination often occurs from the lens of brahmanical patriarchy which often ostracises and isolates gender identities that do not fall into savarna male or female categories.[footnoteref:50] [49: ‘social reproduction, constitutional provisions and capital accumulation in post-independent india’ (n 19).] [50: savarna refers to groups of people in different social classes who fall within the hindu caste system. the avarnas, on the other hand, are people who were excluded from the caste system as outcasts and are a marginalised group. further, brahmanical patriarchy has been defined as the need for effective sexual control over women to maintain not only patrilineal succession but also caste purity, the institution unique to hindu society. see ‘building blocks of brahmanical patriarchy’ [2015] economic and political weekly 7; ‘conceptualising brahmanical patriarchy in early india : gender, caste, class and state | economic and political weekly’ <https://www.epw.in/journal/1993/14/special-articles/conceptualising-brahmanical-patriarchy-early-india-gender-caste> accessed 28 july 2022; diya bose, ‘the biopolitics of third gender category in india’ <https://escholarship.org/uc/item/77h4d7f5> accessed 8 december 2021.] using the example of adverse possession in property law, jessica clarke argues that law in itself does not constitute any natural order but is the enforcement of pre-existing conditions and private arrangements within a society, the theory she refers to as performance reification.[footnoteref:51] similarly, it can be argued that gender is based on performance. thus, repeated presentation of a gender identity over a period of time which has gained acceptance in the society and has obtained tolerance and approval must be accepted by the state, much like the idea of adverse possession in property law. [51: jessica a clarke, ‘adverse possession of identity: radical theory, conventional practice’ 84 oregon law review 92.] it must be considered whether leaving the identification of gender to individuals and social institutions will result in increasing the societal burden on individuals to conform to certain entrenched notions of gender. if gender is to be accepted based on the societally approved appearance or performance, for instance the assumption that presence of breasts, long hair, soft features, etc. are integral qualities of being a woman, then the state would reify only limited forms of gender. this would require persons to conform to societal expectations. therefore, even self-identified gender would require ‘proof’ of such identity in the public sphere. in the uk, the uproar caused by the proposed reform to the gender recognition act, 2004 (gra) that allowed for self-identification of gender without medical diagnosis, is an example of societal pressure to conform to certain forms of gender performance.[footnoteref:52] it must be noted that the argument that the gra reform would ‘allow’ trans women into women-only spaces does not fully understand the relationship between the equality act, 2010 (ea) and the gra. the ea requires single sex service providers to treat persons on the basis of the gender role they present. however, it provides for an exception in cases where exclusion is a ‘proportionate means of achieving a legitimate aim’. such exception does not differentiate between women recognised under the gra and women who are not provided such recognition. that is to say, reform under the gra would still be subject to the provisions under the ea.[footnoteref:53] further, entry to spaces like bathrooms does not depend on official documents but negotiations within the society. this would mean that any woman who conforms with socially approved gender performance would gain entry to these spaces. this in fact means that focus on documentation in such spaces is misplaced as it overlooks the fact that access to places like bathrooms, changing rooms, etc. is almost always based on the understanding of gender accepted by the society. the exclusion in such cases is also suffered by gender non-conforming women.[footnoteref:54] people opposing this reform have argued that it would allow predatory men to breach spaces meant for women.[footnoteref:55] bathrooms have been the centre of this debate where opposers fear the breach of such spaces and the sexual violence that comes with it. however, the requirement for the state to reify socially negotiated genders may result in increased pressure to conform and police one’s appearance. [52: ‘women’s rights and the proposed changes to the gender recognition act’, oxford human rights hub (17 august 2018) <https://ohrh.law.ox.ac.uk/womens-rights-and-the-proposed-changes-to-the-gender-recognition-act/> accessed 11 june 2021; ‘the gender recognition act is controversial – can a path to common ground be found?,’ the guardian (10 may 2018) <http://www.theguardian.com/world/2018/may/10/the-gender-recognition-act-is-controversial-can-a-path-to-common-ground-be-found> accessed 27 may 2021.] [53: for more detailed discussion, see alex sharpe, ‘will gender self‐declaration undermine women’s rights and lead to an increase in harms?’ (2020) 83 the modern law review 539.] [54: ibid.] [55: charlotte jones and jen slater, ‘the toilet debate: stalling trans possibilities and defending “women’s protected spaces”’ (2020) 68 the sociological review 834; ‘the gender recognition act is controversial’ (n 52).] alternatively, recognition of gender (or gender property) can be left to different private institutions to cater to the persons of their choosing. here, such institutions that provide different services can, based on their internal rules, specify the gender they provide services to. similarly, even institutions run by the state could provide gender specific services, for example in india the national commission for women, a body set up by the state, provides services like grievance redressal to women. such bodies may continue to function even if the state does not register or certify gender. here, the state, despite not registering gender, may actively be involved in recognition of gender-based exclusion and discrimination. that is to say, the state could require all such state and non-state institutions to accept self-identified gender.[footnoteref:56] for instance, an entity that caters to women must then accept all women who identify themselves as such. [56: davina cooper and robyn emerton, ‘pulling the thread of decertification: what challenges are raised by the proposal to reform legal gender status?’ (2020) 10 feminists@law <https://journals.kent.ac.uk/index.php/feministsatlaw/article/view/938> accessed 7 january 2021.] while thinking of gender as property is a useful analogy when understanding questions of certification and decertification, the conceptualisation of gender as property is not without issues. the idea of property points to the fact that it is something that ‘belongs’ to a person, something that is integral to one’s personhood. but gender is far more complex than simply a propertied conception.[footnoteref:57] with such conception comes the question of recognition and validity of such property. accordingly, this article also aims to discuss the relationship a gender property holder has with the collective and the state. that is to say, the aim is to look at a conception of property that does not merely refer to the sense of ownership over property but looks at property as an interdependent relationship. this would mean that while decertification, in the manner it is imagined in this article, would require the state to not register gender at birth and in identity documents, it will still require the state to protect people against oppression and discrimination. this would require the state to withdraw from gender assignment without compromising the dignity and safety of individuals. [57: cooper and emerton describe gender as 'far more networked, social, and heterogeneous' than property, ibid. ] property and relational autonomy a counter to the idea of decertification is that lack of legally assigned gender would restrict the state from formulating welfare policies for the genders that need them. promotion of social justice among the members of a nation takes place through welfare policies. it has been argued that such policies are made when the members of the nation contribute to them by virtue of a shared sense of culture and belonging, for example, the acceptance of affirmative action policies by the general public.[footnoteref:58] iris marion young criticises this approach and argues that such an assumption is problematic at a moral level as this would mean that the members of the nation have obligations of justice only to those whom they identify as co-nationals.[footnoteref:59] this approach would preserve the privilege carried by beneficiaries who are identified as co-nationals and exclude those not so identified from benefits. she argues that basing welfare obligations on identification would lead to exclusion. [58: iris marion young, ‘self-determination and global democracy: a critique of liberal nationalism’ (2000) 42 nomos 147.] [59:  ibid.] a parallel can be drawn while analysing the value in the state’s withdrawal from assigning legal gender to people. welfare legislation should not depend on such assignment, especially with gender. creation of ‘groups’ appears to be ineffective; groups would imply the need to carry specific characteristics to be allowed membership. alison stone argues that intersex persons evidence that socially and scientifically approved male and female biological traits may not always go together.[footnoteref:60] therefore, gender must be understood as a cluster concept, where one might satisfy some features that cluster together to identify as any particular gender. however, one does not need to satisfy any arbitrarily chosen necessary features to claim any gender identity.[footnoteref:61] she argues that this makes gender a matter of degree which can be understood as a spectrum.[footnoteref:62] categorising gender more often than not will lead to exclusion of people who do not fall within the specific categories. [60: alison stone, an introduction to feminist philosophy (polity press 2007).] [61: ibid.] [62: ibid.] further, the difference in the value of gender property held by persons is not a naturally occurring phenomenon, but is the result of historical injustices and oppression. welfare legislation for specific genders does not go a long way in addressing these injustices and the argument that there is a need for legal assignment of gender for the purposes of such welfare legislation falls short of addressing the loss of identity caused through such assignment. when gender is self-identified then the individual carries the control over their identity. therefore, when it comes to welfare legislation, what must be enquired into is the purpose behind the legislation. it must be determined whether the welfare measure is to be accorded to an arbitrarily constituted group or to persons who face different forms of oppression.[footnoteref:63] [63: see, cooper and emerton (n 56).] decertification, in the most extreme form, would result in absolute withdrawal of the state from all matters concerning gender. however, while lack of legal assignment may allow a person to gain control over their identity, they may still face cultural oppression based on the gender identity they appear to carry. therefore, it is important to understand that self-identification or self-determination does not refer to the idea of freedom as complete non-interference from the state.[footnoteref:64] [64: young (n 58). ] young suggests a relational understanding of autonomy where individual autonomy does not entail being left alone but recognises individuals to be interconnected and interdependent by virtue of their economic, social, or historical interactions.[footnoteref:65] nedelsky also argues that interdependence or dependence must not be seen as antithetical to the idea of autonomy and gives the example of childrearing where the infant develops individual autonomy through its relationship with its parents.[footnoteref:66] autonomy and freedom instead must be analysed from the lens of non-domination, i.e., protection from arbitrary interference and lack of subjugation. the state must ensure non-domination and that each person is free to choose and develop their gender without the fear of oppression. [65: young (n 58).] [66: jennifer nedelsky, ‘law, boundaries, and the bounded self’ [1990] representations 162.] the popular understanding of the idea of property relates to boundaries that prevent external interference. however, replacing the idea of boundaries with active interdependent relationships (similar to the idea of creating a ‘safe-space’) where the holders of the autonomy to self-identify are free to develop (or not develop) the gender(s) of their choice unburdened by the threat of ‘intrusion’, is an effective way to understand decertification. the idea of decertification should be modelled in a manner where such relationships are facilitated and developed between the self and the state. the state, while withdrawing from assigning gender for the individual, will or should continue to provide protection to such individuals and recognise the hardships they face on account of their gender identity. where gender is reimagined as something people are free to develop and preserve it removes the need to gain legal assent, an assent which may even become the source of future discrimination. therefore, the exercise of decertification should not be taken to its extreme logical conclusion to be understood as absolute abdication of duty by the state. while it should provide autonomy to people through self-determination and understanding the value of interdependent, supportive social relationships, it should ensure protection from discrimination. decertification and gender blindness state intervention in determining a person’s gender identity fixes that gender identity (conceptualised as property owned by the self which they are capable of developing) at a particular point of time.[footnoteref:67] however, the idea of decertification or the act of the state not assigning a legal gender must not be conflated with the liberal idea of gender blindness.[footnoteref:68] the latter would advocate for the operation of structures and institutions while not looking at the inequalities caused by social categories and structures of gender. decertification does not advocate for the non-recognition of such inequalities. the idea of the paradox of rights[footnoteref:69] or the dilemma of difference[footnoteref:70] comes into play here – inequality exists in both ignoring differences and in recognising them. minow argues that employment, education, benefits, and other opportunities should not be dependent on one’s ethnicity, gender, disability, race or other such markers. yet, non-recognition of such markers will continue to create unequal structures where people who are traditionally oppressed by such markers continue to be oppressed.[footnoteref:71] [67: cooper and renz (n 5); davina cooper, ‘a very binary drama: the conceptual struggle for gender’s future’ (2019) 9 feminists@law <https://journals.kent.ac.uk/index.php/feministsatlaw/article/view/655> accessed 11 june 2021.] [68: braunschweig (n 32).] [69: wendy brown, ‘suffering rights as paradoxes’ (2000) 7 constellations 208.] [70: martha minow, making all the difference: inclusion, exclusion, and american law (cornell univ press 1994).] [71: braunschweig (n 32).] in india, this paradox can be observed in the debate surrounding period leaves. a prominent indian journalist, barkha dutt, argues that provision of period leaves will create a gendered workplace.[footnoteref:72] she states that such policies are counter-productive, especially because women have fought hard to not be gendered in the workspace on the basis of menstruation.[footnoteref:73] [72: ‘barkha dutt sparks tweet war after opposing “period leave” policy’, free press journal (11 august 2020) <https://www.freepressjournal.in/india/barkha-dutt-sparks-tweet-war-after-opposing-period-leave-policy> accessed 28 september 2020; barkha dutt, ‘opinion | i’m a feminist. giving women a day off for their period is a stupid idea’, washington post (4 august 2017) <https://www.washingtonpost.com/news/global-opinions/wp/2017/08/03/im-a-feminist-but-giving-women-a-day-off-for-their-period-is-a-stupid-idea/> accessed 28 september 2020; radhika santhanam, ‘should women be entitled to menstrual leave?’, the hindu (21 august 2020) <https://www.thehindu.com/opinion/op-ed/should-women-be-entitled-to-menstrual-leave/article32407772.ece> accessed 28 september 2020.] [73: dutt, ibid.] her concern is that asking for recognition of discomfort or illness primarily faced by women in the workspace might lead to employers alienating women from employment opportunities and other workplace activities. however, the attempt to solve issues of gender discrimination through the negation of gendered experience will result in instances of gender discriminatory policies (or lack of welfare policies) being insulated from reform while structural oppression remains unaddressed. ensuring equitable workplaces may not be achieved by gender-blind policies. an employment space which refuses to acknowledge the health-related issues some people suffer during menstruation is an example of how the liberal idea of gender blindness will create structures that put the non-dominant genders at a disadvantage. decertification, on the other hand, advocates the state withdrawal from assigning gender and from creating categories to put people into when gender cannot be categorised. welfare policies like period leaves can still be enforced by institutions despite the lack of state assignment of gender identity and can focus on individuals who menstruate rather than all women or only those who are identified by the state as women. additionally, legislation like the equality bill, 2021, drafted by the ngo centre for law and policy research,[footnoteref:74] could prohibit policies and practices which exclude certain genders from access to valuable goods. the equality bill lists protected characteristics which include categories such as caste, race, sex, sexual orientation, gender identity, gender expression, etc.[footnoteref:75] the bill requires that the state or any private person should not discriminate directly or indirectly against any person based on any of the protected characteristics.[footnoteref:76] gender identity has been defined as an individual’s assertion of their gender and includes gender expression which is each person’s presentation of their gender through physical appearance, including dress, hairstyles, accessories, cosmetics, mannerisms, speech, behavioural patterns, names, and personal references.[footnoteref:77] the bill also provides for protection against discrimination in employment, educational institutes, etc. [74: the centre for law and policy research is a not-for-profit organisation ‘dedicated to making the constitution work for everyone through law and policy research, social and governance interventions and strategic impact litigation’. see https://clpr.org.in/. ] [75: equality bill, 2021, centre for law and policy research, s.2(pp).] [76: ibid, s.3.] [77: ibid, s.2(t).] however, it is to be noted that religious laws, customs and rules play a significant role in gender-based categorisation and discrimination in indian society. the impact of decertification on religious institutions will depend on the inter-relationship between the state and religious institutions. if there is active state engagement with religion, especially through codified laws, it is likely that the religious laws and rules will have to take into account the reality of a state that has decertified legal gender. part ii religion and the indian state to understand the effect of decertification on religious institutions, one must first determine the quantum of state intervention in religion. the indian constitution guarantees certain enumerated fundamental rights to indian citizens (there are some rights like equality before law and liberty, under articles 14 and 21 of the constitution respectively, which are granted to all persons irrespective of their citizenship). any law made by the state must not infringe the fundamental rights guaranteed by the constitution. however, the definition of law itself has brought with it differing interpretations and exclusions. the constitution under article 13 states that laws in force before the commencement of the constitution shall be void to the extent of their inconsistency with the fundamental rights guaranteed under the constitution.[footnoteref:78] additionally, the state is disallowed from making laws that abridge the rights accorded through fundamental rights.[footnoteref:79] ‘laws in force’ has been defined as laws passed by the legislature or any other competent authority before the commencement of the constitution whereas the definition of law includes an ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territory of india.[footnoteref:80] [78: constitution of india, part iii, art. 13(1).] [79: ibid, art. 13(2).] [80: ibid, art. 13(3). ] can religious practices and personal laws be termed ‘law’ for the purpose of article 13? if yes, then such practices and laws can be assessed against the touchstone of fundamental rights. if not, then religious institutions that enforce such practices and laws are free to operate in their independent sphere without state intervention, for the most part at least. the supreme court of india has been indecisive on the question of personal laws being subject to article 13.[footnoteref:81] therefore, the answer to this question is unclear. while the supreme court has previously adjudicated upon personal laws by reference to fundamental rights,[footnoteref:82] there have also been instances of the supreme court refraining from reviewing personal laws and religious practices.[footnoteref:83] [81: mihir desai, ‘courts’ flip-flop on personal law’, combat law (december 2004) <http://www.indiatogether.org/combatlaw/vol3/issue4/flipflop.htm> accessed 18 august 2020.] [82: anil kumar mhasi v union of india, 1994 5 scc 704; madhu kishwar v state of bihar, 1996 5 scc 125; githa hariharan v reserve bank of india, 1999 2 scc 228; daniel latifi v union of india, 2001 7 scc 740; masilamani mudaliar v. idol of sri swaminathaswami thirukoil, 1996 8 scc 525. ] [83: krishna singh v. mathura ahir, air 1980 sc 707; maharshi avdhesh v. union of india, 1994 supp (1) scc 713; ahmedabad women action group & ors. v. union of india, 1997 3 scc 573.] in the case of narasu appa mali v union of india, the supreme court ruled that personal laws are not subject to fundamental rights as the definition of ‘law’ did not include personal law. the previous definition of law, in the government of india act, 1915, included personal laws. however, the supreme court highlighted that the constituent assembly had deleted personal laws from the definition while drafting article 13.[footnoteref:84] [84: state of bombay v narasu appa mali, air 1952 bom 84.] this argument has been countered to state that the definition of law under article 13 is not exhaustive; the use of the term including gives the definition a wide scope to include personal laws within its ambit. even when it comes to customs and practices, they have been differentiated from personal laws to state that while personal laws can be sourced from customs and practices, they are not interchangeable terms.[footnoteref:85] [85: ibid, para 26. ] however, the supreme court and various high courts have often failed to undertake a nuanced examination of the intention of the framers of the constitution with regards to the above stated debate. according to christine keating, the constituent assembly deleted personal laws from the ambit of fundamental rights as part of a post-colonial sexual contract.[footnoteref:86] many women in the constituent assembly had argued for personal laws to be subject to fundamental rights, as many components of personal laws were discriminatory to women.[footnoteref:87] this suggestion caused an outrage in the constituent assembly.[footnoteref:88] [86: keating (n 44).] [87: for example, renuka ray argued for the application of equality provisions to religious personal laws. ] [88: members like mohammad ismail, naziruddin ahmed, pocker bahadur resisted the state interference in personal laws stating that such interference will cause disharmony, ‘constituent assembly of india -debates’ <http://164.100.47.194/loksabha/writereaddata/cadebatefiles/c23111948.html> accessed 27 may 2021.] the structure of a family, in the indian context, is governed by the notion of gender, caste, and religion. the institutions of marriage and property rights are firmly rooted in gender and caste relations. caste and gender together constitute each other and the patriarchal order.[footnoteref:89] therefore, allowing the state to interfere in the private sphere would risk the unravelling of the social order of indian society. [89: dr br ambedkar, ‘castes in india: their mechanism, genesis, and development’ (n 19).] consequently, the call for subjecting personal laws to fundamental rights was rejected to preserve the fraternity within the constituent assembly. christine keating argues that the preservation of fraternal relations at the cost of allowing discriminatory personal laws to function is the post-colonial sexual contract entered into by the members of the constituent assembly.[footnoteref:90] keating develops this idea through critical contract theory expounded by theorists like rousseau, pateman, and charles mills. she builds her argument on pateman’s claim that while the social contract disrupted paternal patriarchal rule it reaffirmed the rule of sons and brothers over women and established a fraternal patriarchal order. keating argues that the rhetoric of fraternity within the constituent assembly and its democratic discourse prevented women from realising freedom in the private sphere to preserve the brotherhood of men.[footnoteref:91] [90: ibid.] [91: keating (n 44).] however, it can be argued that the constituent assembly was not completely averse to state regulation of personal laws; the constituent assembly, arguably, wanted to defer the discussion on personal laws even though the proposal at the time was rejected. this is assumed from the placing of the establishment of a uniform civil code as a directive principle of state policy (directive principles).[footnoteref:92] however, the debate surrounding the uniform civil code has become more complicated over time, and is beyond the scope of this article. [92: these directive principles are unenforceable but are treated as guiding principles for the state. directive principles refer to the social goals that the constituent assembly envisioned for the indian state to achieve. these principles are not enforceable rights like fundamental rights but are expected to be used as guiding principles to interpret questions of constitutional importance.] further, the placement of including within the definition of law under article 13 appears to keep the possibility of reading personal law into the constitutional framework open for future judicial pronouncements. there seems to be no reason to exclude personal law from the definition of laws in force if personal laws can be termed as laws under article 13.[footnoteref:93] article 13(2) of the constitution does not allow the state to make laws in contravention of the fundamental rights. the bombay high court in narasu appa mali stated that since the definition of laws includes customs and practices and the state cannot make customs and practices, personal laws are included in the definition of laws in force.[footnoteref:94] [93: desai (n 81).] [94: narasu appa mali (n 84) para 15.] in the current framework, at least codified personal laws, customs and practices have been tested on the touchstone of the fundamental rights guaranteed by the constitution. the status of uncodified personal laws in the constitutional framework remains unclear. the guarantee of freedom of religion and conscience in the constitution is also subject to morality, public order, and health.[footnoteref:95] therefore, it is evident that despite the contours of state regulation of religion and customs being unclear, some degree of state control is exercised in matters of religion, religious institutions, customs and practices. the extent of state control over religious institutions becomes important to understand the effect of decertification on religious norms and rules. if religious institutions exist in an independent sphere, then state policies regarding gender will not affect such institutions. [95: constitution of india, part iii, art. 25(1).] how will religion respond to decertification in india? within religious institutions, gender identity underlies norms on entry into places of worship,[footnoteref:96] the method of divorce granted by the husband to the wife,[footnoteref:97] guardianship of a minor child,[footnoteref:98] etc. if the state refrains from registering the gender of a new-born child, then it is possible that religious institutions may not be able to apply gendered customs, rules and laws freely. however, it is also a possibility that the religious institutions could adopt their own framework to determine a person’s gender and construct laws in relation to these genders. such a possibility will depend on the extent of state intervention within religious institutions. in such a case, the mechanisms developed to determine the gender of a person will be subject to the constitutional provisions such as the right to privacy granted to each person within article 21 of the constitution.[footnoteref:99] that is to say that institutions may not be able to employ mechanisms that go against the rights granted to persons under the constitution to dignity, privacy, life, etc. depending on how such rights are interpreted by the courts. [96: indian young lawyers’ association & ors v the state of kerala & ors (n 1).] [97: shayara bano v union of india, air 2017 sc 609.] [98: githa hariharan v reserve bank of india (n 82).] [99: justice ks puttaswamy v union of india, wp (c) 494/2012.] in the recent case of arunkumar and another v the inspector general of registration and ors[footnoteref:100] the madras high court upheld the marriage between sreeja, a trans woman, and arunkumar, a cisgender man. the marriage was solemnised in accordance with the hindu marriage act, 1955 (hma) but the registrar of marriages, tuticorin had refused to register the marriage, stating that a trans woman cannot be a ‘bride’ under section 5 of the hma.[footnoteref:101] interestingly, the hma does not define terms such as ‘bride’, ‘groom’, ‘wife’, or ‘husband’. the court read the meaning of bride within the hma in a flexible manner and held that such words cannot be assigned fixed definitions. further, the court cited the nalsa decision along with navtej singh johar to state that the freedom of self-determination, self-expression and autonomy granted to transgender persons through these judgments allow for the recognition of a transgender person’s right to marry. the court stated that any discrimination on the ground of sexual orientation and /or gender identity will be a violation of a person’s right to equal protection under the law per article 14 and a violation of their right to life and personal liberty under article 21. a person’s right to determine their gender identity was held to be a part of their personal autonomy. such autonomy is protected from state regulation. it also held that a person’s right to marry anyone of their choice is protected under article 21 of the constitution.[footnoteref:102] [100: arunkumar and another v the inspector general of registration and ors, wp (md) no 4125 of 2019 and wmp (md) no 3220 of 2019.] [101: this section lays down the necessary conditions for a valid hindu marriage. ] [102: shafin jahan v asokan km and ors, crl a 366/2018 (arising out of slp (crl.) 5777/2017).] if the state does not assign legal gender, then the legislation made by the state could be devoid of gender markers as such, depending on the variant of decertification adopted by the state. the question that follows is regarding welfare legislation – what happens to legislation meant to protect minority gender groups? a broader framework to prevent discrimination, such as the equality bill, 2021 may be useful in this event. the equality bill, as discussed previously, provides for protection from discrimination based on any personal characteristics of the person in question. such protected characteristics are broadly defined and gender within this definition has been understood to be self-identified. religious institutions, to the extent of their codified laws and their customs, may not be able to construct laws and rules which are gender specific. for example rule 3(b) of the kerala hindu places of public worship (authorisation of entry) rules, 1965 states that women are not allowed to enter and offer worship in public places of worship during the periods where women by custom or usage are not allowed to enter temples (i.e. the period of menstruation).[footnoteref:103] this rule will not stand in a regime where no legal gender exists unless decertification is implemented in a manner whereby religious institutions are free to create their own rules to identify the gender of a person. when the state cannot certify gender then it is possible that it cannot justify rules such as rule 3(b). [103: kerala hindu places of public worship (authorisation of entry) rules, 1965, rule 3(b).] if the legislation cannot use gender groups to regulate entry into temples, then it will have to use alternate qualifiers. perhaps, the law would prohibit persons who menstruate from entering the temple during such period. practically, such a law will be difficult to implement as identification of people who menstruate would resort back to the normative assumptions and ideas about gender. further, it must be considered that this law would be subject to judicial review where it will be tested against the touchstone of fundamental rights. creating a category of ‘menstruators’ and barring their entry from a religious space would then invite questions of whether such classification is reasonable and if it has a rational relation to the object of the law.[footnoteref:104] it must be noted that religious institutions could still invoke the freedom to conduct their own affairs, and even rationalise the rule being in place as a benefit to menstruating persons who face fatigue and are better off resting in their private quarters, or the rule not being in place but for the special nature of the deity.[footnoteref:105] the removal of state imposed gender identities, however, could potentially make it difficult for religious institutions to regulate the participation of the members of the polity in their affairs. when gender is not assigned by the state and the laws formulated by the state do not refer to gender groups then these laws will have to depend on characteristics other than gender, for example using menstruation as a characteristic and not women as a category. this would mean that religious laws, depending on the amount of state intervention, would also have to use such alternative markers. it has been repeatedly argued that gendered personal laws and religious rules often have discriminatory connotations,[footnoteref:106] for example the rule for restitution of conjugal rights, prohibition of menstruating women from accessing public spaces (especially places of worship), property rights, etc. therefore, if one is to remove the invocation of gender or gendered categories from religious laws, rules and customs then the implementation of such laws would be difficult, given that such laws may not stand against the constitutional provisions. [104: article 14 of the constitution guarantees equality. the test of reasonable classification is a test that falls under article 14 review. it must be noted that the aforementioned law would be hit by various other fundamental rights challenges in addition to an article 14 review. ] [105: arguments of such nature were in fact made in indian young lawyers’ association & ors v the state of kerala & ors (n 1).] [106: desai (n 81).] the status of religious institutions and religious laws in a decertified state could be varied. this is also a result of an absence of specific laws preventing discrimination, such as the equality bill, 2021. while decertification could mean that religious organisations may no longer be able to enforce gendered norms, it can also be the case that decertification as an exercise would by-pass religion in its entirety. the result of such decertification will also depend on the political and cultural point at which such policy reform is adopted. in a culture that is deeply rooted in religion and where the fabric of the society strongly holds on to the structure of family and faith despite their patriarchal and casteist undertones, such a policy reform will be difficult to implement in the religious sphere. the same is evident from the aftermath of sabarimala which resulted in violence and protest from the general public.[footnoteref:107] however, decertification has the potential to generate laws that have a better understanding of gender and gendered experiences people face across the board. while categorisation of gender makes laws easier to implement it must be understood that exploring decertification in india would allow one to understand the role of gender, sexuality, caste and religion in post-colonial india and its legal system. [107: ta ameerudheen, ‘kerala: hindutva violence post-sabarimala entry shows careful planning, say observers’, scroll.in (7 january 2019) <https://scroll.in/article/908430/kerala-hindutva-violence-post-sabarimala-entry-shows-careful-planning-say-observers> accessed 8 december 2021; india today web desk, ‘sabarimala row: 1 dead, normal life disrupted as violence grips kerala’, india today (4 january 2019) <https://www.indiatoday.in/india/story/sabarimala-row-updates-one-dead-life-disrupted-1422899-2019-01-03> accessed 8 december 2021; ‘sabarimala violence: politically sensitive kannur boils over’, the times of india (5 january 2019) <https://timesofindia.indiatimes.com/india/sabarimala-violence-politically-sensitive-kannur-boils-over/articleshow/67394049.cms> accessed 8 december 2021.] conclusion decertification in the indian context seems to be a proposition that might attract many differing opinions and debates; it would require revision of a range of laws, welfare and discriminatory alike. however, there is some value in greater exploration of the effects of decertification on different aspects of the legal system to fully assess the merit in proposing the adoption of such measures by the state. when gender is looked at as a private possession of an individual it must not be confused with the idea of non-interference. decertification, at least in the form this article envisions it, does not equate to the idea of ‘gender-blindness’. deeper understanding of gender inequalities and the solutions to address these inequalities can only be reached through meaningful relationships and communications which cannot take place in isolated spheres with impermeable boundaries. while decertification requires the state to withdraw from assigning legal gender, it does not require the state to not recognise gender (and the oppression caused by it). decertification in this article is viewed through the lens of non-domination whereby the state and its members, while not dominating the will of other members in determining, developing, cultivating and performing gender, also ensure the welfare of all members through interpersonal meaningful relationships. the idea of privacy and autonomy as isolated from the collective is reimagined to mean privacy and autonomy developing from interactions with the collective. this interaction, while making space for individual development of gender, also ensures that there is a sense of collective responsibility towards each other. each person is facilitated by the collective and by the state to own their gender property and to determine and develop their gender identity in a manner they deem fit. while the state does not involve itself in this determination and development of gender identity it does not withdraw itself from the duty of recognising structural disadvantage faced by the owners of the properties considered to hold relatively less value. the effect such exercise will have on the religious sphere can be determined by understanding the relationship between the indian state and religious institutions. while codified religious laws will have to comply with the decertification of legal gender by the state the status of uncodified laws remains unclear. religious institutions could exercise autonomy regarding the gendering of persons and gendered spaces, they could also be regulated and limited through state policy on gender and gender based discrimination along with the pre-existing constitutional mandates. ______________________________________________________________________________________________________________ 6 ______________________________________________________________________________________________________________ 7 företrädesrätt till återanställning ulander-wänman flexicurity and sepa feminists@law vol 2, no 1 (2012) a gender perspective on flexicurity and the swedish employment protection act carin ulander-wänman* introduction full employment is an important labour policy goal for both sweden and the european union, of which sweden has been a member since 1995. the ideas, values and assumptions expressed in european employment policy affect the norms in the swedish labour market. ‘flexicurity’ is the name given in the eu to the strategy designed to help the community achieve its employment objectives by increasing the flexibility and security of the labour market. in sweden the law contributes to this objective by providing workers with protection in existing employment under the swedish employment protection act (sepa). sepa is based on stability, where the employment contract is seen as a personal and long-term relationship between employer and employee involving mutual loyalty. by contrast, the dominant discourse of flexicurity is changing. employees are not expected to have lifelong employment with a single employer, but instead, to be prepared for changes in employment status during their working career. this paper argues that both sepa and flexicurity are based on an approach that is more favourable to men than women. the lack of gender analysis in the construction of the substance of sepa and flexicurity tends to exclude women to a greater extent than men from the opportunity to obtain employment security. the swedish employment protection act the policy objective of full employment and the risk of excluding some categories of employees were important factors in the establishment of the swedish employment protection act in 1974 (sepa). the origin of this law is related to structural transformations in the 1960s and 1970s. falling levels of production were affecting growing numbers of employees and statistical analysis of unemployment showed a trend towards longer periods out of work. the shutting down of companies caused some sections of the workforce to be excluded from the labour market, notably older employees, women and people with insufficient qualifications. opinion was that this situation was due to the way the market economy worked. the development had been driven by business decisions made with a view to maximising return on invested capital. this, among other things, implied that employers were simply choosing to replace some workers with others they believed to be more skilled and productive. the view expressed in the 1973 report of preparatory work, was that business economic thinking did not give enough consideration to high and uniform employment, nor to meaningful tasks or job security for employees. the political objectives were, and still are, to use all the productive capacity in society, and it was thought neither socially acceptable nor economically reasonable for so many people still of active working age to be excluded. job security under sepa applies to existing employment. the law aims to protect groups of employees who appear to have low employability in the labour market, if they should lose their jobs due to shortage of work or for personal reasons. one feature of sepa is that employers are expected to take a degree of social responsibility for the people they employ. likewise, employees are expected to use all their education, experience, skills and personal qualities in a way that is best for the employer. in the event of conflict, employees are obliged to put the employer´s interests before their own and avoid situations where their personal duty may collide with their duty as an employee. job security under the law sepa is constructed as peremptory legislation, but, in line with the nordic model, some of its constituent rules are semi-discretionary. the law can be considered to have four core elements: 1. the contract of employment is to be for permanent employment (§4 sepa). this means that the normal form of employment on the swedish labour market will be seen as a permanent agreement. 2. the employer must have just cause for termination (§7 sepa). redundancy is considered just cause for terminating employment. normally the labour court will not question an employer’s decision of redundancy. in order for termination by reason of redundancy to be regarded as just cause the employer must have examined whether it was possible to transfer the employee to some other vacant job within the employer’s operations. however, in order to get the new job the worker must have sufficient qualifications to perform the work. 3. the employer must comply with a specified order of selection for termination when a choice among employees is made (§22 sepa). in establishing this order an employer with fewer than ten employees may exempt two persons whom the employer considers to be of particular importance to the continuing operations. the employer’s decision cannot be reviewed. the position of individual employees regarding the order of selection if there is a shortage of work is determined on the basis of length of service with the employer, that is, the principle of ‘last in first out’. however, a requirement for employees with longer length of service to retain a job is that they have sufficient qualifications for the job. this rule is semi-discretionary. the employer and the trade union can within broad limits make collective agreements on the order of selection for termination that deviate from the law. the legislation does not give an individual employee, regardless of length of service, the right to claim a special position in the order of selection for dismissal. in principle, the only restrictions are that the collective agreement must not be discriminatory, be intended to terminate unorganized employees employment, or go against good custom in the labour market. 4. employees who have lost their jobs due to a shortage of work have the right to be prioritized in future re-employments (§25 sepa). this right is based on length of service, so that employees with longer length of service and sufficient qualifications will be offered employment first. this regulation also means that the employer and the trade union, before an employee has lost his/her job due to shortage of work, can make an agreement that includes certain conditions which have to be met if he/she is to be re-employed. this might suggest that a long length of service does not have to be the conclusive criterion for being re-employed. the social partners may, for instance, decide that a certain education will give priority regarding the right to be re-employed. the employment protection act and security for women the labour market analysis performed in connection with the drafting of sepa showed that women constituted a group of workers who had difficulties finding a job after dismissal by reason of redundancy. a thorough investigation designed to deal with the more vulnerable employees affected by the new law, women in particular, was, however, never carried out. sepa has been the subject of a number of amendments over the years, but these changes have not involved scrutiny of the position of women in the labour market. today, women are regarded as an equally integral part of the workforce as men and are no longer considered a reserve force employed only during periods of economic boom. sweden has an anti-discrimination law intended to promote equitable conditions in the labour market for women and men, counteract a gender segregated labour market and create better conditions for both women and men to combine work and family life. these norms also apply in european employment policy. the basic construction of the four areas that constitute the core of the current law remains essentially unchanged from sepa of 1974. one difference between the law as it stands and that of 1974 is that the present law gives employers a greater possibility to employ people under fixed-term contracts. against the background of the norms of equality it is important to analyse what impact the constructions of the core areas of the law have for women’s opportunities to obtain employment security. permanent employment – the normal form of employment sepa §4 assumes that employment contracts are valid, permanent agreements. this expresses the political will that permanent employment should be the normal form of employment in the swedish labour market. workers with this type of contract usually have greater employment security than workers with temporary contracts. one of the amendments to sepa implies that employers have been given greater opportunities to make contracts for fixed-term employment. an employer may institute temporary employment in the case of temporary replacement work, seasonal employment, when workers are older than 67 (obtain superannuation), and for so-called ‘general temporary employment’. the employer may however independently make decisions about general temporary employment and is not required to state the reasons for the decision. in order to prevent abuse of these contracts the law contains a conversion rule. the rule states that if an employee has been employed as a temporary replacement worker or general temporary employee for a total of more than two years during a period of five years, his or her employment must be converted into a permanent appointment. one consequence of the law’s design is that a worker may be variously employed as a substitute for two years, in general fixed-term employment for two years, and for different periods in a seasonal capacity, as well as on probationary terms for six months. theoretically, an employee may thus be employed in the same position, with the same employer and at the same workplace for well over four years without obtaining permanent status. the swedish labour market is distinctly gender segregated. in general the female-dominated areas are social services, nursing and education while the male-dominated areas are manufacturing and extraction industries, construction and transport. the social services and nursing jobs are mostly in the public sector. women’s employment is equally divided between the public and private sectors, while men mostly work in the private sector. women are more likely than men to have fixed-term employment, and more women than men work part time. in 2009, 66% of all employed women between the ages of 20 and 64 worked full time and 34% worked part-time. the corresponding figures for men were 89% and 11% respectively. although sepa states that permanent employment should be the normal form of employment and supports full time work, in practice this does not apply to women to the same degree as to men. temporary employees work part-time to a larger extent than permanently employed workers and a high proportion of part-time employees would prefer a full-time appointment. fixed-term employees run considerably higher risk of unemployment than permanent workers. in general, temporary employment leads to permanent employment to a greater degree in the private sector compared to the public sector. hunter observes that the gender segregation of the labour market continues to place women and men in different kinds of casual jobs and, in particular, to place women far more often in part-time casual jobs. traditionally, casual workers have not been entitled to annual leave, sick leave, benefits or the protection available to permanent employees. women with temporary contracts are also much less often transferred to permanent employment than are men, with women instead tending to move between different types of temporary contracts which replace each other. among manual and white-collar workers, men with temporary employment establish themselves on the labour market to a greater extent than women with the same type of contract. also, as ashiagbor argues, employees on fixed-terms contracts tend to suffer from discrimination regarding pay and pensions and have fewer opportunities to improve their career prospects. so, the fact that it is women who predominantly hold fixed-term jobs means that they have worse employment security than men over a longer period of their working life. the rule of order of selection some companies in sweden actively work to promote better gender balance at work by deliberately recruiting the under-represented gender when employing new staff. this provides an opportunity for breaking male dominance among workers in the highest paid sectors. upon termination due to redundancy, however, the gains achieved in terms of breaking gender segregation are lost due to the rule of order of selection. employers and trade unions will not make collective agreements that particularly benefit the under-represented gender when determining an order of selection. local social partners are dependent in the long term on the loyalty of the majority of the remaining employees in the workplace, so the agreements the parties make must be supported or at least accepted by the workers as a collective, that is, by the men. moreover, a local collective agreement that benefits women in certain redundancy situations could be challenged by men under current anti-discrimination law. one consequence of the gender segregated labour market and the lack of gender aspects in sepa is that women in redundancy situations have their jobs terminated in the higher-paid competitive export industries, because they generally have a shorter length of service than men in this male-dominated sector. as shown above, sepa provides greater security for workers with longer length of service. this in turn contributes to maintaining the gender segregated labour market. the priority right to re-employment an employer who intends to create a new job is required to offer the new appointment to a redundant employee who has a priority right to re-employment, provided the employee is qualified for the new job. another condition is that the preferred employee is actually able to take up the employment when the employer wants. an employer has no obligation to appoint a substitute for any extended period while a preferred employee’s access is pending. hence, under current law, the employer’s interest takes precedence in a situation where the employer requires the employee to begin working without delay. the government committee of inquiry of 2002 determined that workers with priority rights to re-employment should be afforded time to arrange childcare and other practical issues before starting work, with the length of this period best decided according to the circumstances in each case. the employer’s interests have however been assigned more weight in situations where an offer of employment must be accepted immediately, even though the former employee with a priority right is prevented from doing so. yet the inquiry did not clarify whether employees made redundant due to shortage of work are permitted to use the full term of parental leave to which they are entitled, if they are offered a job on the basis of their priority right to be re-employed. where a permanent employee who is on parental leave is selected for termination due to shortage of work, the notice period during which they have the right to be re-employed will not start until they have finished their parental leave. temporary employees, by contrast, have no protection for the preservation of their re-employment rights during their parental leave, and so the nine months following the end of employment during which the right to be re-employed exists, may expire during parental leave. therefore, an employee who has a priority right to be re-employed, but who has been temporarily employed and is on parental leave at the time of termination, may actually lose his or her priority right to be re-employed during the time of parental leave. since it is mostly women who are temporary employees and who are on parental leave in direct proximity to childbirth, it is they who primarily run the risk of being prevented from taking advantage of their priority right to be re-employed due to parental leave. employee qualifications and job security a key factor in a worker’s security in connection with termination by reason of redundancy is his or her qualifications. the requirement that employees must have sufficient qualifications to undertake further work can be identified in three core paragraphs of sepa. the worker’s skills and competences may also impact their chances of being transferred to a vacant job. the rules of priority right to re-employment also require the employee to be qualified for re-employment. in principle, sepa requires employers to develop the skills of their employees, but it puts no obligation on employers to educate every worker to a specific extent, to a certain level, or according to a particular focus. nor are there general collective agreements in either the private or the public sector that oblige employers to provide training for every worker or require workers to engage in skills development. accordingly, swedish employers largely take independent decisions about whether workers should be provided training and what fields of knowledge should be developed in employees. unsurprisingly, the european commission found that those with the greatest need for learning, such as workers on temporary contracts, suffer the most from underinvestment in training. in more frequently combining work with family life, women take parental leave more often than men, tend to stay at home to care for children and elderly relatives, work part-time disproportionately more than men and spend more time on housework than men. these factors probably affect women’s status and skills development, because women will tend to receive less skills development during employment. the ultimate consequence of this is that it is more difficult for women to compete with men for employment when there is a shortage of work. the flexicurity strategy a high level of employment is one of the goals of the eu, and member states are supposed to promote coordination of their state employment policies through a general employment strategy. this means that each individual employee has to become more productive over a longer period, has to be able to adapt to changes in the labour market and to achieve higher competency at work. the guidelines for member state employment policies make it clear that member states should promote flexibility in combination with security and reduce segmentation in the labour market. the individual’s right to a job is based on employment security rather than job security, as current opinion is that fewer employees have the same job for the whole of their working lives. the integrated strategy, which means that both flexibility and security must increase on the labour market, is called flexicurity. flexicurity and employment security as the terms suggests, ‘flexicurity’ means that both enterprises and employees have to be more flexible. companies need to adjust their workforce according to changed economic situations. so it must be easier for enterprises to dismiss employees and to recruit workers who better meet requirements for competences and are more productive. this may also involve flexible employment contracts. owens considers flexibility to have taken a particularly gendered form, with men, in contrast to women, not generally availing themselves of “family-friendly flexibility provisions, for example taking unpaid breaks from the workplace or reducing their hours of work”. it has been suggested to the commission that employment contracts could be built up gradually with an employee reaching full job protection after a longer length of service and achieving enhanced job competence. however, the idea of flexibility challenges the characterisation of a job as a long-term relationship of mutual loyalty between employer and employee. it results in non-standard workers frequently having relationships with more than one employer and the length of service with any one tending to be shorter. another important element of flexicurity is that employees must adapt to changed employment positions throughout their working life, for example from being employed to being unemployed, or moving from unemployment to education. in order to be maximally flexible an employee must have the optimum level of competency. they cannot be sure that higher skills in an existing job will imply employability and give them job and employment security. nor can it be taken for granted that long length of service implies greater competency and leads to a stronger position for the employee in the labour market as a whole. according to the flexicurity principle life-long learning is crucial to attaining job and employment security. full employment security conditions may depend on both the individual employee’s length of service and competence. one key idea in flexicurity is that employers and employees invest more in lifelong learning. the commission gives some examples of how to increase incentives for workers by creating a system of individual knowledge accounts. these accounts make it possible for the employees to spend a certain amount of their working time and money on their personal development, in cooperation with their employers. lifelong learning may also imply that it is necessary for employees to use their spare time to increase their competence. flexicurity means that, apart from employees having to adapt to changes in work situations and employment positions, it is necessary for them to be prepared for geographical mobility. taking advantage of work possibilities in a wider perspective and far away within the eu means employees have to be moveable. in flexicurity, individual employees are expected to take responsibility for their own employment security, and employers are expected to take independent responsibility for the enterprise’s competitiveness. this differs from the idea of sepa where employers and trade unions are seen as jointly responsible for the enterprise’s competitiveness and employees´ security. flexicurity and security for women com (2007) 359 determines that flexicurity should include measures to equalise the differences between women and men’s positions in working life. despite this ambition, proposed measures taken on flexicurity are likely to have adverse impacts on women in particular. the need for flexibility in jobs and work organisations can lead to an increase in temporary and part-time employment. in both the swedish and european labour markets, it is now mainly women who are in temporary employment and in part-time positions. lise lotte hansen considers flexicurity to be gender blind in practice even though the strategy focuses on weaker groups in society. she also believes it is important to be aware of how work-time flexibility and functional flexibility affect the effectiveness of the flexicurity model. there is a risk that women will fill the precarious positions in the labour market if the norms of flexibility prevail. this becomes particularly apparent if the proposal for new flexible employment contracts, which the commission presents as a pathway, is implemented. a new design with open-ended contracts is suggested which contains only basic protection. protection would build up progressively with job tenure until full protection is achieved. there is a risk that women will be given the least secure employment contracts and thus worse conditions of employment. there is also a danger that the unequal employment conditions in the construction of new open-ended employment contracts will be hidden because the form of employment is called permanent employment. flexicurity’s reference to lifelong learning may imply that employees have to take responsibility for their own skills development in order to gain a permanent employment contract. it can be deduced from com 2007 (359) that workers themselves also may be expected to bear some of the costs of lifelong learning, for example by investing their time. women generally take a greater responsibility for home, children and the elderly than men. statistical evidence suggests that women with children younger than seven years of age spend 43 hours per week on unpaid housework and 23.4 hours per week on paid work. men in the same situation spend 26 hours per week on unpaid housework and 36.4 hours per week on paid work. providing the platform for online learning is an increasing trend in society. these courses are more flexible and offer the opportunity to work in parallel with studying at a distance from the seat of learning. this may imply that employees will have to use their spare time for learning to achieve employability more in the future than is the case now. there is however a risk that a development according to which employees are expected to use their spare time to gain new knowledge will offer women poorer opportunities than men. a woman who takes the greater part of responsibility for housework might have neither the time nor the energy to devote to improving her work skills in her spare time. consequently, women have less scope to invest in learning during their leisure time than men. this can further hinder them in obtaining a permanent employment contract with full security and employability in the labour market as a whole. the requirement under flexicurity that workers be geographically mobile may have different consequences for men and women in different eu countries. in sweden, the competitive export sector, mainly situated in private sector manufacturing industries, is the wage leader. here men constitute the majority of employees. the nature of women’s employment, part-time work and relatively lower wages, may influence which partner’s job a family would prefer to prioritise if there was a conflict of interest in the family that impacted both the woman’s and the man’s employment. in countries as geographically spread-out as sweden, the demand for high mobility may have far-reaching consequences for workers and their families compared to countries where opportunities for daily commuting are greater. because of the gender segregation of the labour market in sweden and europe as a whole, women tend to occupy lower-paid positions. the probability is that when workers need to relocate, it will be women with families and children who will leave their jobs to follow their men. moreover, where a number of such relocations take place during their working lives, the chances of these women getting any sort of employment in the new locations may be seriously diminished. conclusions the discourse surrounding the need of business to recruit the most productive and competent employees was live in sweden long before the flexicurity strategy was developed. one purpose of sepa was to provide security for workers in employment. this social consideration was to some extent at the expense of employers’ interest in achieving the highest possible operational efficiency. if the employee is in permanent, full-time employment, has a long length of service, and possesses sufficient qualifications to continue working, the law can theoretically fulfil its objective of giving the employee security in his or her existing employment. today, employers’ opportunities to meet labour requirements in flexible ways and employees’ productivity and competences are considered critically important to corporate growth and competitiveness. this approach affects the regulation of the swedish labour market and has led to changes in the sepa. the current law gives employers greater latitude to employ workers on fixed-term contracts than it did when sepa was first enacted. sepa is designed to give employees with permanent employment contracts the strongest employment protection. the act imposes criteria on an employer’s freedom to unilaterally terminate employment, which implies that rapid changes in the number of permanent workers are not possible. the current discourse on employers’ needs for flexibility in order to enhance operational efficiency is strong. as a result, employers are taking advantage of expanded opportunities for temporary employment provided by the law. one consequence of this is that the prevalence of fixed-term employment has increased in the swedish labour market. the sectors of the labour market where there are high levels of fixed-term and part-time jobs are dominated by women workers, which is why women are the workers who meet employers’ needs for flexibility. in this sense, women are still providing a labour reserve to be drawn upon when needed. in a swedish context, the labour court has expressed the view that employers in principle have an obligation to provide skills development for their employees. there are, however, no rules in law or under collective agreements that give individual employees the right to a specific amount of training with a specified content or at a specified level. it is the employer, exercising the managerial prerogative, who decides who will receive competence development and what that competence will be. it is a known fact that fixed-term and part-time employees are negatively impacted by underinvestment in education. there is a risk that more women than men will fail to acquire sufficient qualifications during their employment, since they run the risk of being given fewer opportunities for competence development than men. this affects women’s employment security not only in relation to their current employer but also in competition in the labour market as a whole. the analysis of flexicurity and sepa shows that women differ from the notion of the typical employee upon which the norms of both flexicurity and sepa are based. this means that men, in general, have better chances of achieving job and employment security both under sepa and flexicurity. neither the regulations in sepa nor the norms on which flexicurity is based have considered the conditions specific to women. both when the labour market is regulated on the basis of stability in the employment relationship between employer and employee, and when this relationship is characterised by flexibility, women are excluded. the major problem is the lack of gender analysis in the approach that forms the foundation for sepa and flexicurity. one conclusion is that women’s position in the labour market needs to be strengthened. this could be achieved by reducing the possibility to employ workers for fixed terms over long periods and through giving workers a stronger legal right to full time employment. perhaps one path towards reducing gender segregation in the labour market would be to allow positive discrimination for the underrepresented gender in relation to terminations due to redundancy. equal opportunities for workers to obtain skills development could be realized if all employees were given a right to competence development under the terms of their individual employment contracts. the financial allocations to individual training accounts should be based on length of service. this would, among else, mean that workers would accrue training account allocations while on parental leave. an instrument of this kind in labour market policy would give all workers an economic opportunity to develop their skills after some time. this could potentially reduce the risk that any category of workers will become trapped in precarious work. references ashiagbor, diamond, “promoting precariousness? the response of eu employment policies to precarious work” in precarious work, women, and the new economy. the challenge to legal norms, edited by judy fudge and rosemary owens, onati international series in law and society, hart publishing, oxford, 2006. calleman, catharina, kvinnors anställningsskydd [women’s employment protection], norstedts juridikförlag, lund, 1991. fredman, sandra, “precarious norms for precarious workers” in precarious work, women, and the new economy. the challenge to legal norms, edited by judy fudge and rosemary owens, onati international series in law and society, hart publishing, oxford, 2006. fredman, sandra, “women at work: the broken promise of flexicurity”, industrial law journal, vol. 33, no. 4, p. 299​​–319, december 2004. fudge, judy, owens, rosemary, “precarious work, women, and the new economy. the challenge to legal norms” in precarious work, women, and the new economy. the challenge to legal norms, edited by judy fudge and rosemary owens, onati international series in law and society, hart publishing, oxford, 2006. hansen, lise lotte, “from flexicurity to flexarity? gendered perspectives on the danish model”, journal of social sciences vol. 3, no. 2, p. 88–93, 2007. hunter, rosemary, “the legal production of precarious work” in precarious work, women, and the new economy. the challenge to legal norms, edited by judy fudge and rosemary owens, onati international series in law and society, hart publishing, oxford, 2006. håkansson, kristina, språngbräda eller segmentering [springboard or segmentation], research report, the institute for labour market policy evaluation, 2001:1. julén votinius, jenny, föräldrar i arbete [parents at work], makadam förlag, stockholm and göteborg, 2007. karlsson, nils, lindberg, henrik, en ny svensk modell [a new swedish model], norstedts akademiska förlag, mölnlycke, 2008. owens, rosemary, “engendering flexibility in a world of precarious work” in precarious work, women, and the new economy. the challenge to legal norms, edited by judy fudge and rosemary owens, onati international series in law and society, hart publishing, oxford, 2006. statistics sweden, på tal om kvinnor och män. lathund om jämställdhet 2010 [women and men in sweden, facts and figures 2010], örebro 2010. statistics sweden, registerbaserad arbetsmarknadsstatistik (rams) [register-based labour statistics] http://www.ssd.scb.se/databaser/makro/start.asp. statistics sweden, tidsanvändningsundersökningen 2000/0, 25 augusti 2011 [swedish time use survey 2000/01, 25 august 2011] http://www.scb.se/pages/producttables____12233.aspx ulander-wänman, carin, företrädesrätt till återanställning [priority right to re-employment], iustus förlag, uppsala, 2008. wennberg, lena, “constructions of normality and the boundaries of social citizenship – solo mothers in the swedish welfare model”, in this issue. wilthagen ton, tros, frank, “the concept of ‘flexicurity’: a new approach to regulating employment and labour markets”, transfer: european review of labour and research, vol. 10, no. 2, p. 166-186, 2004. government committees of inquiry ministry publications series 2002:56, hållfast arbetsrätt – för ett föränderligt arbetsliv [durable labour law for changeable working life]. government proposals prop. 1996/97:16 en arbetsrätt för ökad tillväxt, given stockholm den 24 oktober 1996 [swedish government bill 1996/97:16 a labour law for increasing growth, issued stockholm, 24 october 1996]. prop. 1973:129 med förslag till lag om anställningsskydd m.m., given stockholms slott den 25 maj 1973 [swedish government bill 1973:129 including a proposed employment protection act, issued at stockholm palace, 25 may 1973]. government reports regeringens skrivelse 2009/10:34 sveriges handlingsprogram för tillväxt och sysselsättning – uppföljningsrapport 2009 [swedish government communication 2009/10:34, the swedish reform programme for growth and jobsannual progress report]. official documents from the european union 2010/707/eu: council decision of 21 october 20101 on guidelines for the employment policies of the member states, official journal l 308, 24/11/2010 pp. 0046–0051. com (2007) 359 final, communication from the commission to the european parliament, the council, the european economic and social committee and the committee of the regions, towards common principles of flexicurity: more and better jobs through flexibility and security {sec(2007)861}, {sec(2007)862}. 2005/600/ec council decision of 1-2 july 2005 on guidelines for employment policies of the member states, official journal l 205, 06/08/2005 pp. 0021–0027. opinion of the european and social committee on employability and entrepreneurship, “the role of civil society, the social partners and regional and local bodies from a gender perspective”, official journal c 256, 27/10/2007 pp. 0114–0122. * senior lecturer in law, umeå university, sweden. � hyperlink "mailto:carin.wanman@jus.umu.se" �carin.wanman@jus.umu.se�. � com (2007) 359 final, communication from the commission to the european parliament, the council, the european economic and social committee and the committee of the regions, towards common principles of flexicurity: more and better jobs through flexibility and security, {sec(2007)861}, {sec(2007)862}. wilthagen and tros argue that flexicurity first and foremost is a policy concept or policy strategy and should be studied as such; see wilthagen, tros, “the concept of ‘flexicurity’: a new approach to regulating employment and labour markets”, p. 172. � in this paper i use sepa as an acronym for the swedish employment protection act. � the text analysis of flexicurity is based on com (2007) 359 final, communication from the commission to the european parliament, the council, the european economic and social committee and the committee of the regions, towards common principles of flexicurity: more and better jobs through flexibility and security, {sec(2007)861}, {sec(2007)862}. � prop. 1973:129 pp.18–24 and pp. 109–110. � the labour court 1994 no. 79. � national research shows that women, although they have almost the same length of service as men, are terminated from employment to a greater extent than men. older employees, part-time workers and employees who have a high absence risk are placed less favourably in the order of selection; see calleman, kvinnors anställningsskydd [women’s employment protection], p. 129. � this is grounded on a notion about collective responsibility and solidarity; see wennberg, “constructions of normality and the boundaries of social citizenship – solo mothers in the swedish welfare model”, in this issue. � prop. 1973:129 pp. 18–24. � this regulation was based on the assumption that more flexible solutions were needed in order to create growth; ministry publications series 2002:56, pp. 55–58. there was an increase in precarious work in the last few decades of the twentieth century. ‘precarious’ in this context means work that departs from the normative model of a full-time, year-round employment relationship of indefinite duration with a single employer. fudge and owens’s hypothesis is that the rise and spread of precarious work is gendered and challenges existing legal norms of employment and regimes of labour regulation; see fudge, owens, precarious work, “women, and the new economy: the challenge to legal norms”, p. 3. � statistics sweden (scb), på tal om kvinnor och män. lathund om jämställdhet 2010, p. 58. � statistics sweden, registerbaserad arbetsmarknadsstatistik (rams). � statistics sweden, på tal om kvinnor och män. lathund om jämställdhet 2010, p. 54. � regeringens skrivelse 2009/10:34 sveriges handlingsprogram för tillväxt och sysselsättning – uppföljningsrapport 2009, pp. 54–55. see also statistics sweden, på tal om kvinnor och män. lathund om jämställdhet 2010, p. 51. in all eu member states, the proportion of employees in temporary contracts was higher for women than for men; ashiagbor, “promoting precariousness? the response of eu employment policies to precarious work”, pp. 81–82. � statistics sweden, på tal om kvinnor och män. lathund om jämställdhet 2010, p. 50. � prop. 1996/97:16 pp. 44–45. � håkansson, språngbräda eller segmentering, pp. 38–39. � hunter, “the legal production of precarious work”, pp. 285–286. � håkansson, språngbräda eller segmentering, pp. 38–39, p. 48 and p. 54. it also seems to be more difficult for fixed-termed employees to combine work with parenting: julén votinius, föräldrar i arbete, pp. 384–385. � ashiagbor, “promoting precariousness? the response of eu employment policies to precarious work”, p. 82. � ministry publications series 2002:56 p. 477. � prop. 1973:129 p. 168. � in an empirical investigation from 2002, 4% of employers stated that an employee with a priority right to re-employment was not re-employed because the employee could not take up the job because he or she was on parental leave. the corresponding figure for employees working in fixed-term employment before their parental leave was 10%: ulander-wänman, företrädesrätt till återanställning, p. 303. � the majority of those who utilise parental leave through parental insurance are women; ministry publications series 2002:56 p. 206. � com (2007) 359 final, towards common principles of flexicurity, p. 3. � regeringens skrivelse 2009/10:34 sveriges handlingsprogram för tillväxt och sysselsättning – uppföljningsrapport 2009, pp. 54–55 and statistics sweden, tidsanvändningsundersökningen 2000/01. � see 2010/707/eu: council decision of 21 october 2010 on guidelines for the employment policies of the member states. � rosemary owens argues that there is a neoliberal agenda in australia and i contend there is also a neoliberal discourse in the eu. owens posits the neoliberal discourse on flexibility is presented as necessary for successful participation in the new economy; owens, “engendering flexibility in a world of precarious work”, p. 337. � com (2007) 359 final. towards common principles of flexicurity, p. 3. � com (2007) 359 final. towards common principles of flexicurity. � com (2007) 359 final. towards common principles of flexicurity, p. 3. � owens, “engendering flexibility in a world of precarious work”, p. 339. � com (2007) 359 final. towards common principles of flexicurity, p. 13. � see fredman, “precarious norms for precarious workers”, p. 188. � com (2007) 359 final. towards common principles of flexicurity, p. 16 and p. 18. � com (2007) 359 final. towards common principles of flexicurity, pp. 1–9, annex i, p. 16. � 2005/600/ec, council decision of 12 july 2005 on guidelines for the employment policies of the member states, p. 5. � com (2007)359 final, towards common principles of flexicurity, p. 9. � opinion of the european and social committee on employability and entrepreneurship,”the role of civil society, the social partners and regional and local bodies from a gender perspective”, p. 116. � hansen, “from flexicurity to flexarity”, p. 91. � fredman argues that the precarious workforce is made up predominantly of women. women’s responsibility for childcare combined with pressure to contribute to household income leaves them with few options for paid work; fredman, “women at work: the broken promise of flexicurity”, p. 300. � com (2007) 359 final, towards common principles of flexicurity, annex 1, p. 13. � the objective of modernising the welfare model disregards the disparate living conditions of women and men; see wennberg, “constructions of normality and the boundaries of social citizenship – solo mothers in the swedish welfare model”, in this issue. � com (2007) 359 final, towards common principles of flexicurity, p. 11. � regeringens skrivelse 2009/10:34 sveriges handlingsprogram för tillväxt och sysselsättning – uppföljningsrapport 2009, p. 54. see also statistics sweden, tidsanvändningsundersökningen 2000/01. � statistics sweden, tidsanvändningsundersökningen 2000/01. � karlsson, lindberg, en ny svensk modell, p. 27 and p. 43. � regeringens skrivelse 2009/10:34 sveriges handlingsprogram för tillväxt och sysselsättning – uppföljningsrapport 2009, p. 54. � in the eu, 34% of women employees work part-time compared to 7% of men; fredman, “women at work: the broken promise of flexicurity”, p. 302. � opinion of the european and social committee on employability and entrepreneurship, “the role of civil society, the social partners and regional and local bodies from a gender perspective”, p. 116. � fudge, owens, “precarious work, women, and the new economy: the challenge to legal norms”, p. 13. __________________________________________________________________________________ 2 __________________________________________________________________________________ 17 busby unpaid care, paid work and austerity __________________________________________________________________________________ feminists@law vol 4, no 1 (2014) __________________________________________________________________________________ unpaid care, paid work and austerity: a research note nicole busby[footnoteref:1]* [1: * professor of law, university of strathclyde, scotland, email nicole.busby@strath.ac.uk. ] introduction since coming to power in 2010 the need to pursue austerity measures has been used by the uk’s coalition government to justify deregulating the labour market and making radical changes to the tax and benefits systems aimed at reducing the welfare bill alongside severe cuts to public services. as well as the direct effect on women’s employment through reduced protection for those who already work in low paid, precarious jobs and the loss of employment for many public sector workers, such reforms risk upsetting the finely-tuned arrangements on which those who provide unpaid care alongside paid work depend. the centrality of state involvement in improving women’s lives on their own terms, which has been identified as a ‘key plank of second wave feminism’ (conley 2012: 16), means that important advances in gender equality are seriously threatened by the coalition’s (and other european governments’) immutable commitment to austerity. the cumulative effect of policies enacted under this banner represents a retrograde step in the achievement of gender equality generally which is epitomised by the profound impact on the ability of unpaid carers, the vast majority of whom are women, to undertake their care responsibilities within a secure and stable environment. yet the inevitability of such measures as an unavoidable means of deficit reduction, which very quickly became part of the political vernacular following the formation of the coalition government in may 2010, is contested (clarke and newman 2012: 300-303). furthermore, even if the need to reconstitute the social contract as a means of instilling economic stability is accepted, the appropriate response could have considered a range of different choices and utilised a more inclusive decision-making process with more emphasis on meaningful consultation and public consent in place of the exclusive route taken by what is, after all, a coalition government. in this research note i consider the impact of recent reforms on the reconciliation of paid employment and the provision of care. my objective is to bring together a range of sources which provide evidence of the particular effects of the austerity agenda on women’s, and thus carers’, lives and to contrast this evidence with some of the political rhetoric surrounding austerity by quoting directly from speeches made by key members of the government. through this approach i will provide a critique of the current reforms which questions the conceptualisation of unpaid care within the austerity agenda and the characterisation, articulated by government and reinforced by the media, of those who rely on welfare support as a means of providing for themselves and their dependents as irresponsible and feckless. i conclude by considering the identification of an appropriate feminist response to the austerity agenda which, as well as questioning the very foundations on which that agenda is founded, should guard against the reduction in and reversal of gains made in gender equality on the grounds of political ideology. notions of responsibility and interconnectedness although based ostensibly on rational economic reasoning and underpinned by the values of “freedom, fairness and responsibility” and the idea that “we are all in this together, and we will get through this together” (cameron 2010), the austerity agenda and the many policy initiatives perpetrated in its name can be seen to provide a sharp contrast with notions of solidarity, shared responsibility and interconnectedness. evident in the political rhetoric is a lack of concern and respect for relationships based on care, whether for children or adults. the circumstances within which such relationships are formed are diverse and certainly reach far beyond the traditional confines of the ‘nuclear family’ or its extended form to encompass relationships forged on bonds of friendship, neighbourhood and community. my analysis focuses on the impacts of austerity on those individuals who combine unpaid care with paid work. this is not because i am seeking to exclude carers who do not or cannot undertake paid work alongside their care commitments or that i consider them as less worthy subjects of labour law than those who undertake paid work but rather because i want to explore the government’s attempts to rebalance the relationship between paid work and welfare. i argue that this specific seam of policy is predicated on a particular ideology that relies on a number of assumptions about the nature and purpose of care. such assumptions, although neutral on their face, are actually deeply gendered and perpetuate a certain world view that is both ideologically damaging for carers and by implication women and those for whom they care and which can be shown to breach current equality legislation. however, simply arguing that current measures pursued in the name of austerity amount to sex discrimination is not enough if we want to rebalance women’s and men’s relationship with unpaid care and paid work whilst ensuring that the former acquires a political value commensurate with its social and economic contribution. such an endeavour requires the current conceptualisation of care which underpins the legal and policy frameworks relevant to labour law, taxation and welfare to be reformulated to take account of what a relationship of care actually entails on the part of the carer, extending from its affective dimension by which we are all bound together in mutual ties of love and affection to its less profound, more mundane but equally crucial and demanding task-centred dimension usefully categorised as ‘body work’, which incorporates the cleaning, the feeding, the assistance with bodily functions and the administration of medication. the task of seeking to reconceptualise care within political consciousness and resulting policy is certainly not a new endeavour for feminists who, from the early days of the first wave sought to embed notions of solidarity and interdependence as key values which underpinned the movement’s central political ideals and which were evidenced by our lifestyle choices. i will return to the question of how feminism should respond to what has been identified as a neoliberal subversion of its ideals (fraser 2013) towards the end of the paper. first, i will consider the range of measures that are having a particularly damaging effect on carers. the focus is on the direct withdrawal or reduction of legal protections and also those measures that have an indirect impact on care arrangements generally. careless carers despite the prime minister’s assurance that cuts to public expenditure will be made “…in a way that protects the poorest and most vulnerable in our society; in a way that unites our country rather than divides it; in a way that demonstrates that we're all in this together..” (cameron 2010), changes to labour market regulation and the welfare system enacted in the name of austerity have been shown to have a disproportionate impact on certain groups. those who have been particularly affected include individuals with disabilities (both children and adults), families with children, particularly lone parent families,[footnoteref:2] and women aged between 50 and 64 (the observer 2012). all of these groups, and the disadvantages suffered by them, are inextricably linked with the unpaid provision of care, be it for a dependent child, elder or disabled adult. this impact comes on top of existing disadvantage: women experience a full-time pay gap of 14.9% (office for national statistics 2011); 64% of low paid workers are women (lawton and cooke 2008: 10); the costs of childcare in the uk are amongst the highest in the world, severely limiting women’s choices to take up paid work (daycare trust 2012: 78). [2: 92% of lone parent households are headed by women according to the office for national statistics (2008). ] in seeking to explore the effects of austerity measures on individual carers it is necessary to consider changes to the law, such as the direct withdrawal or reduction of legal protections, as well as amendments to the wider policy environment including the provision of services and the welfare and benefits system. such a broad approach is required because, for those on low incomes with substantial care commitments, the acquisition of the minimum level of income necessary to survive often depends on accessing a complex web of provisions because of the way state services (including for those who work outside of the home) are organised. in other words, it is not the ‘fault’ of the carer who finds herself having to rely on benefits and associated services in order to enable her to maintain a certain amount of hours of paid work and provide adequate care for her dependant(s), but rather the result of a long process of political engagement with the question of how to include (or accommodate) the requirements of care and labour market participation. if charted alongside the lifecycle, these impacts can be seen to affect carers at each stage. childhood – parenthood research undertaken by the institute for fiscal studies has shown that low income families with children and pensioners, who benefited most from the redistributive effect of the previous labour government’s tax and benefits policies, will be most negatively affected by the austerity measures introduced between 2010 and 2014 (institute for fiscal studies 2012). cuts to the welfare budget amounting to £18bn mean that median income for families with children is forecast to fall during this period substantially more than overall median income, and child poverty rates are forecast to increase. families with children will see a particularly large drop in their incomes between 2010 and 2015. those hit especially hard include large families, those with young children and those in private rented accommodation. the reforms to the tax and benefits system (including the introduction of a benefit cap, cuts to tax credits and local housing allowance) are a key driver of these changes to income. although these reforms strengthen the incentive for those without children to do paid work, they can be shown to weaken the incentive on average for those with children to do paid work. women in middle age in march 2012 house of commons researchers analysed the effects of austerity measures on men and women (the guardian 2012). the figures, based on treasury data, show that of the £14.9bn raised from the government's five spending reviews since 2010, £11.1bn had come from women despite the fact that women earn less than men on average. changes to tax credits, child benefit and public sector pensions were largely to blame for women bearing the brunt of austerity measures. middle-aged women are by far the worst hit by the recession and spending cuts because of the high levels of unpaid care performed by the ‘sandwich generation’ those who come to parenthood later than previous generations and acquire caring responsibilities for aging parents whilst raising young children. this group is also facing an increase in the state pension age and is more likely to be affected by job losses: between 2010 and 2012 unemployment among women aged 50-64 rose by 39% in contrast to a 5% increase for all persons over 16 (the observer 2012). this is thought to be partly attributable to women giving up work to care for others, including grandchildren, due to the rising costs of care. in addition, those who care for elders and others are doing more to fill gaps left by increases in social care costs and the withdrawal of public services. changes to carers’ benefits will have a marked effect on women who are significantly more likely to provide care for adults than men, most commonly between the ages of 45 to 74. that group already suffers from a gender pay gap of 10% (for 50 to 59 year olds) and are less likely to be in a senior position than men, as just 8% of women in their 50s are in managerial positions, compared with 16% of men. the government’s own equality impact assessment (carried out retrospectively) found that changes to carers’ benefits will disproportionately affect women as nearly three-quarters of claimants of carer’s allowance are women (department for work and pensions 2010a). women in old age the costs of care are not only felt by carers at the actual time of the care commitment but can leave a long lasting legacy of poverty and hardship. although state pensions have been largely protected from the deepest of the austerity cuts, many female pensioners are less likely to have access to private pension schemes than men. women’s average personal pensions are only 62% of the average for men (fawcett society 2012: 5). in addition, women live longer than men, often spending the later years of their lives living alone or caring for others. such women are often reliant on public services and will suffer as cuts are made to such provision: the 2010 comprehensive spending review announced £34bn in cuts to funding for public services by 2012-13. women ‘filling the gaps’ the fawcett society, the uk’s leading campaigning organisation for women’s equality and rights, is concerned that as services that assist those with caring roles and provide for those in need of care are cut, women will by default be the ones to ‘pick up the tab’ and fill the gaps left in provision (fawcett society 2012). withdrawing such vital support risks adding to women’s unpaid and informal caring roles and further entrenching the already unequal distribution of labour. the knock-on effect will be to limit women’s opportunities to work and to engage fully in public and political life. in addition, changes to the benefits system through the introduction of universal credit (uc) in october 2013 are likely to act as a disincentive from engaging in paid work for some women. uc is intended to simplify social security, reduce fraud and error and cut costs in benefit administration as well as increase work incentives (department for work and pensions 2010b). it combines and replaces working tax credit, child tax credit, housing benefit, income support, income-based jobseeker's allowance and income-related employment and support allowance with a single means-tested benefit administered by the dwp to those both in and out of work. uc has been designed primarily with the aim of improving work incentives for the household, as opposed to individuals, and it prioritises work incentives for “first earners” over “second earners”. this approach is likely to disincentivise women in low income jobs from engaging in paid work and may actively discourage mothers in couples from seeking paid employment where their partner is already working or seeking work. as the government’s own impact assessment states, “it is possible that, in some families, second earners may choose to reduce or rebalance their hours or leave work. in these cases, the improved ability of the main earner to support his or her family will increase the options available for families to strike their preferred work/life balance” (department for work and pensions 2011: 23). as well as undermining the principle that work should pay for all individuals, this reinforces the highly regressive male breadwinner/female carer model. labour market deregulation some of the reforms undertaken in the name of austerity have a deregulatory effect whereby levels of employment protection are reduced as a means of increasing labour market flexibility and thus stimulating private sector growth. the obvious example here is the increase of the unfair dismissal qualifying period from one year to two years in april 2012 which has been rationalised as a means of protecting businesses from ‘vexatious claims’, removing red tape and enabling job creation, and is part of the coalition government’s overarching deregulatory strategy which originates from the consultation document, ‘resolving workplace disputes’ (department for business, innovation and skills 2011: 50, 51). announcing the new policy at the 2011 conservative party conference, chancellor george osborne stated: “we respect the right of those who have spent their whole lives building a small business not to see that achievement destroyed by a vexatious appeal to an employment tribunal. so we’re now going to make it much less risky for businesses to hire people” (osborne 2011). osborne’s assertions that employment tribunals are awash with spurious claims which destroy businesses and deter employers from hiring are strongly contested, particularly by those concerned with the reduction in access to justice for already vulnerable workers (busby et al. 2013). the two year qualifying period is not new as it was previously part of the uk’s regime until it was reduced to one year in 1999 following a legal challenge on the grounds of indirect sex discrimination, in which it was argued that, due to family formation and associated labour market factors, less women were able to comply with the requirement than men.[footnoteref:3] it is unclear how the current government has justified this reform in the absence of any equality impact assessment and it remains to be seen whether another challenge will be mounted. [3: r v secretary of state ex. p. seymour-smith (no.2) [2000] irlr 263 (hl)] in addition some of the more progressive provisions of the equality act 2010 will not now be implemented. section 14 which would have offered protection from dual discrimination that is on the basis of two protected characteristics has been shelved as has the extension of protection against third party harassment under s. 40 on the grounds that these provisions would cost businesses over £350 million per year (hm treasury 2011). the former provision,[footnoteref:4] although limited in its application why stop at two characteristics? would have been an important starting point for the incorporation of intersectionality within the uk’s anti-discrimination law framework, which could have gone some way in recognising the relationship between poverty, social exclusion and discrimination among certain groups: the fawcett society has estimated that 40% of ethnic minority women currently live in poverty in the uk (fawcett society 2009). [4: which was repealed by the enterprise and regulatory reform act 2013.] in other developments, the right to obtain further information in discrimination cases through the questionnaire procedure has been repealed by the enterprise and regulatory reform act 2013 and the government has announced that it will not implement the secondary legislation required to give effect to the mandatory gender pay reporting measures provided for by s.78 of the equality act, which would have obligated employers in the private and voluntary sectors to disclose information relating to equal pay. in addition, the socio-economic duty, which would have required public authorities to take account of disadvantage and inequality including on the grounds of gender in the formulation of all policy under part 1 of the act, has been dropped from the legislative agenda. the aptly named deregulation bill, which is currently in draft stage, contains proposals to remove the right for tribunals to make wider recommendations in discrimination cases and the equality and human rights commission, which has already seen a reduction in its budget from £70 million in 2007 to core funding of £17 million by 2015 with a 70% reduction in staff, is the subject of an ongoing review (department for culture media and sport 2013), as is the public sector equality duty, which is discussed below. economic necessity or political ideology? in the face of overwhelming evidence that the choices made by the government in its pursuance of austerity are having a disproportionate effect on (female) carers who are already economically and socially disadvantaged, why is the government continuing to make such choices? the answer is undoubtedly ideologically grounded and tells us something deeply worrying about contemporary society and its socio-political environment that, if not reversed, will lead to a real crisis for carers and those they care for and which risks reversing some important gains made in gender equality. the coalition government’s stance is undoubtedly part of a wider political agenda that is grounded in the pursuit of neoliberal goals. this agenda is not necessarily party-political many of the current policies are rooted in the previous labour administration’s ‘third way’ agenda, although the almost exclusive focus on reducing public expenditure is distinctly conservative. however, all of this is a matter of political choice, according to amartya sen, who calls it the “ill-chosen cult of austerity” (sen 2012). the ‘hard’ economic agenda, supposedly grounded in rational, cool headed decision-making, makes a stark contrast with care’s obvious association with emotion, vulnerability, need and human frailty. such ‘facts of life’ are hidden and unacknowledged in neoliberal policy-making which has as its ideals autonomy and independence. this contrast between independence and interdependence, with the former seen as the ideal and the latter either denied or denigrated, explains and in some ways justifies the lack of attention and recognition afforded to carers under the current political agenda. this view of the world is particularly pertinent during times of apparent austerity when the rational must override the emotional and anything superfluous must be denied. this point is illustrated by the coalition government’s handling of the equality act and its abandonment of the act’s more progressive provisions such as dual discrimination and the socio-economic duty, referred to by (then) equalities minister theresa may as “ridiculous”, “simplistic” and “politically motivated” (may 2010). may’s dismissive tone infers that her own government’s actions in this respect are based on a sophisticated and detailed decision-making process which was not ideological and somehow above politics. in announcing the decision not to implement the socio-economic duty in november 2010, may said that the government's emphasis would be on ensuring "equality of opportunity" rather than "equality of outcome". "even as we increase equality of opportunity, some people will always do better than others…i do not believe in a world where everybody gets the same out of life, regardless of what they put in. that is why no government should try to ensure equal outcomes for everyone" (may 2010). under this view, equality considerations are only acceptable when they can be conceptualised and contained within some broader normative and operational framework within which everyone has the same opportunities to participate and contribute (or “put in”). what such an approach fails to take into account is the institutional inequalities that cut across the protected characteristics provided for under the act and which contribute to the entrenched and, often invisible social exclusion that can result. the socio-economic duty would have been helpful to uproot and render visible exclusion as it would have required public authorities to take account of disadvantage and inequality in the formulation of all policy. the decision not to implement this provision can be said to have conveniently enabled the government to avoid scrutiny of its own policies’ impact on different socio-economic groups. however, despite this disappointing outcome, there are still ways in which legal challenges can be mounted as a means of questioning the underlying rationale and processes utilised in policy enacted in the name of ‘austerity’. challenging from within the public sector equality duty (psed) provided under s.149 of the equality act requires public authorities to pay “due regard” to the need to eliminate discrimination and to advance equality of opportunity between women and men. to comply, public authorities (including central government departments) must consider the impact of their current and proposed policies and practices across all protected characteristics. to be meaningful, assessment should explicitly recognise the relative context and “starting positions” of comparable social groups. if the exercise reveals that a policy might widen inequality, decision-makers are then able to consider taking mitigating action to remove or alleviate the harm. the psed, potentially useful as it is, actually represents a pared-down version of its predecessor the gender equality duty (ged) which was introduced in 2007[footnoteref:5] and was hailed at the time by the equal opportunities commission as the biggest advance in women’s equality since the 1970s (equal opportunities commission 2006). the ged constituted one of three specific duties enacted between 2001 and 2007 the other two covering race and disability which were subsequently merged and extended to age, sexual orientation, religion and belief and pregnancy and maternity.[footnoteref:6] on its consolidation and reconstitution as the psed, the ged lost its specific gender focus and became an institutional requirement rather than a proactive and promotional tool (conley 2012: 17-18). brought under the ged, the fawcett society’s application for a judicial review of the 2010 emergency budget reached the high court for a permission hearing on 6th december 2010. in its claim, the society argued that 72% of the £8.1bn spending cuts, which included a cap on housing benefit and a rise in vat, would be borne by women and therefore the cuts had a “disproportionate” impact on women to which the government had neglected to demonstrate due regard due to its failure to conduct an equality impact assessment of the budget as required under legislation. although granted a permission hearing, the society’s request for full judicial review was ultimately turned down top of formdespite the fact that the government’s lawyers had earlier conceded that it had not carried out equality assessments before the budget in certain areas, including the public sector pay freeze and benefit cuts which they admitted was “regrettable”.  mr justice ouseley dismissed the case as “unarguable or academic” as there had been too long a delay in the court application and there was now no prospect of the court declaring the budget unlawful, he said. bottom of formhowever, his judgment did confirm that the ged applied to budget and policy-setting processes at the highest level. in his summing up of the case, mr justice ouseley confirmed that “the preparation and presentation of measures outlined in national budgets are subject to equality law”.[footnoteref:7] [5: sex discrimination act 1975, s.76a. ] [6: equality act 2010, s.149.] [7: r (fawcett society) v chancellor of the exchequer and others [2010] ewhc 3522 (admin), para 15.] this point was further articulated in the most recent challenge to an austerity measure[footnoteref:8] in which it was successfully argued before the court of appeal that the equality impact assessment required under the psed had been inadequate in the government’s decision to close the independent living fund (ilf) from 2015 and devolve responsibility for administering such funding to local authorities. the ilf is a government-funded trust which helps about 18,000 disabled people with the highest support needs to live independently, by topping up their local authority-funded support. its aim is to combat social exclusion on the grounds of disability. [8: bracking and others v secretary of state for work and pensions [2013] ewca civ 1345.] in giving his judgment, elias lj noted that: “any government, particularly in a time of austerity, is obliged to take invidious decisions which may exceptionally bear harshly on some of the most disadvantaged in society. the psed does not curb government's powers to take such decisions, but it does require government to confront the anticipated consequences in a conscientious and deliberate way in so far as they impact upon the equality objectives for those with the characteristics identified in section 149(7) of the equality act 2010.”[footnoteref:9] [9: ibid, para 74.] cases such as bracking illustrate how political decision-making can be challenged on the basis that it arises from ideological rather than purely economic or fiscal grounds. however, whilst equality impact assessments are undoubtedly helpful in casting a spotlight on disproportionate impact, they do not necessarily reveal the effect that many policy decisions taken on the grounds of austerity, such as the non-implementation of certain aspects of the equality act, will have on carers because the provision of care is not legally recognised as a protected characteristic under the act. furthermore, such actions are essentially based on specific provisions of primary and secondary legislation which itself can be amended, repealed or replaced and which is thus vulnerable to political expediency. this point is clearly illustrated by the watering down of the ged in its reformulation as part of the psed and the government’s current review of the latter as part of its ‘red tape challenge spotlight on equalities’ (see https://www.gov.uk/government/policy-advisory-groups/review-of-public-sector-equality-duty-steering-group). as hazel conley has argued, the dismantling of the equality provisions “without a plan for replacement measures might be considered itself an act of institutional discrimination” (conley 2012: 19). a future feminist agenda in a recent contribution to the guardian’s ‘comment is free’, nancy fraser decried the contemporary use of the feminist critique of sexism as “justification for new forms of inequality and exploitation” (fraser 2013). in fraser’s analysis, rather than continuing to question and challenge the very foundations on which capitalism is founded, second wave feminism has directly contributed to the successful entrenchment of neoliberal individualism as the ideal paradigm.[footnoteref:10] in evidence, fraser draws on three examples which challenge the core values and beliefs around which feminists were once united. first, she cites the shift within feminist debates from critiques of the ‘family wage’ to the promotion of the two-earner family as a (false) form of female empowerment. second, she argues that a focus on identity politics has resulted in the neglect of social equality as the primary focus of attention for devising ways of improving women’s lives. thirdly, fraser identifies an unquestioning rejection of the state as a central player in poverty reduction in favour of projects which encourage and enable small-scale lending (‘microcredit’) to those who live in impoverished conditions in developing countries. [10: fraser’s recent work has been criticised for homogenising second-wave feminism and not being sufficiently attentive to the differences between different feminisms in different political and geographical contexts; see, for example, bhandar (2013).] the backdrop to this shift in feminist consciousness from the rejection to the acceptance of capitalism has been a shift in the character of capitalism itself from the “state managed capitalism of the post war era” to a new form of capitalism “’disorganised’, globalising, neoliberal”. the effect of this new settlement between second wave feminism and mainstream contemporary politics has been to re-orientate the former in favour of neoliberal individualism which enables “a perspective aimed originally at democratising state power in order to empower citizens” to be “used to legitimise marketisation and state retrenchment” (fraser 2013). fraser’s analysis makes sobering reading for those of us seeking to develop an appropriate gendered response to the ‘cult’ or ‘alchemy’ of austerity. there is a lot to be done to reverse the effects of the austerity agenda and to challenge the lack of consent and (passive) cooperation that enabled it to take hold in the first place. measures evoked in the name of austerity rely on a particularly one-sided view of the organisation of social and economic life which, if it is to be expanded to take account of reproduction, requires a revaluation of all those activities currently or potentially regulated by labour law including unpaid care. a useful step in this direction would be the establishment of a clearly defined and legally recognised social identity for carers which would highlight and rectify existing inequalities and produce sustainable improvements in the lives of carers and those for whom they care, even in these so-called ‘times of austerity’. however the overarching “bigger” project of “reclaiming the mantle of participatory democracy as a means of strengthening the public powers needed to constrain capital for the sake of justice” (fraser 2013) requires two potential and inter-related forms of action. first, as clarke and newman argue, “the coalition’s separation of the economic from the moral has left them vulnerable to counter-claims that economics should be moral” (clarke and newman 2012: 313). in harnessing the discomfort and discontent induced by deepening social inequalities, we need to recognise and articulate the detachment that has occurred under neoliberalism between the economic practices enacted in our name (but without our consent) through austerity policies and their moral economy. secondly, hard-won rights to equality which are threatened by the shifting sands of political and economic affiliations will only be stabilised and further developed once they are constitutionally guaranteed a difficult task but one which has some currency in international law’s recognition and guarantee of certain basic standards as human rights. both of these activities require a reinvigoration of our collective consciousness, our interconnectedness. fraser’s call for feminism to reclaim and reinvigorate its “solidaristic scenario” offers a way in which we might cease to engage with and, rather, seek to challenge neoliberal capitalism and is a call which we ignore at our peril. references bhandar, brenna. 2013. race, gender and class: some reflections on left feminist politics and organising. feminists@law 3(1). busby, nicole, morag mcdermont, emily rose and adam sales (eds). 2013. access to justice in the employment tribunal: surveying the terrain, institute of employment rights. cameron, david. 2010. speech delivered 7th june 2010, available: http://www.conservatives.com/news/speeches/2010/06/david_cameron_we_must_tackle_britains_massive_deficit_and_growing_debt.aspx. accessed 13th november 2013. clarke, john and janet newman. 2012. the alchemy of austerity. critical social policy 32(3): 299-319. conley, hazel. 2012. economic crisis, austerity and gender equality – the uk case. european gender equality law review 2: 14-19. daycare trust. 2012. childcare costs survey. department for business, innovation and skills. 2011. ‘resolving workplace disputes’, available: http://www.bis.gov.uk/assets/biscore/employment-matters/docs/r/11-511-resolving-workplace-disputes-consultation. accessed 13th november 2013. department for culture media and sport. 2013. comprehensive budget review of the equality and human rights commission. government equalities office, available: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/86430/comprehensive_budget_review_of_the_ehrc_.pdf. accessed 13th november 2013. department for work and pensions. 2010a. welfare and wellbeing group, attendance allowance, disability living allowance and carer’s allowance: retrospective equality impact assessment 2010, available: http://www.dwp.gov.uk/docs/aa-dla-ca.pdf. accessed 13th november 2013. department for work and pensions. 2010b. universal credit: welfare that works, the stationery office, cm.7957. department for work and pensions. 2011. universal credit: impact assessment, october 2011, available: http://www.dwp.gov.uk/docs/universal-credit-wr2011-ia.pdf. accessed 13th november 2013. equal opportunities commission. 2006. gender equality duty code of practice for england and wales. fawcett society. 2009. poverty pathways: ethnic minority women’s livelihoods. fawcett society. 2012. the impact of austerity on women. fraser, nancy. 2013. how feminism became capitalism’s handmaiden – and how to reclaim it. the guardian: comment is free. 14th october 2013. the guardian. 2012. women paying the price for osborne's austerity package, 30the march 2012, available: http://www.theguardian.com/lifeandstyle/2012/mar/30/women-paying-price-osborne-austerity. accessed 13th november 2013. hills, john, mike brewer, stephen jenkins, ruth lister, ruth lupton, stephen machin, colin mills, tariq modood, teresa rees and sheila riddell (national equality panel). 2010. an anatomy of economic inequality in the uk. government equalities office. hm treasury. 2011. plan for growth, available: http://cdn.hm-treasury.gov.uk/2011budget_growth.pdf. accessed 13th november 2013. institute for fiscal studies. 2012. the impact of austerity measures on households with children, institute for fiscal studies and family and parenting institute. lawton, kayte and graeme cooke. 2008. working out of poverty: a study of the low paid and the working poor, institute for public policy research. may, theresa. 2010. equality strategy speech, available: https://www.gov.uk/government/speeches/theresa-mays-equality-strategy-speech. accessed 13th november 2013. the observer. 2012. recession hits middle-aged women worst, new research finds. 8th july 2012. office for national statistics. 2008. social trends 39. office for national statistics. 2011. annual survey of hours and earnings. osborne, george. 2011. speech to conservative party conference, available: http://www.conservatives.com/news/speeches/2011/10/osborne_together_we_will_ride_out_the_storm.aspx. accessed 13th november 2013. sen, amartya. 2012. austerity is undermining europe's grand vision. the guardian: comment is free, 3rd july 2012. __________________________________________________________________________________ __________________________________________________________________________________ sheila wildeman critical pathways to disability decarceration __________________________________________________________________________________ feminists@law vol 12, no 1 (2023) __________________________________________________________________________________ critical pathways to disability decarceration: reading liat ben-moshe and linda steele sheila wildeman[footnoteref:1]* [1: *associate professor, schulich school of law, dalhousie university, canada. sheila.wildman@dal.ca ] abstract i consider how liat ben-moshe’s decarcerating disability and linda steele’s disability, criminal justice and law: reconsidering court diversion contribute to emerging conversations between critical disability studies and anti-carceral studies, and between disability deinstitutionalization and prison abolitionism. i ask: what if any role might law, or specifically rights-based litigation, play in resisting carceral state strategies and redirecting material and conceptual resources toward supports for diverse forms of flourishing? i centre my remarks on the special relevance of ben-moshe’s and steele’s books to social movement activism in atlantic canada and critical reappraisal of canada’s solitary confinement litigation. i am grateful for the chance to reflect with others on liat ben-moshe’s decarcerating disability and linda steele’s disability, criminal justice and law: reconsidering court diversion.[footnoteref:2] i am writing from k'jipuktuk – halifax, nova scotia – in mi'kma'ki, the unceded territory of the mi’kmaw. [2: liat ben-moshe, decarcerating disability: deinstitutionalization and prison abolition (minneapolis: university of minnesota press, 2020); linda steele, disability, criminal justice and law: reconsidering court diversion (london: routledge, 2020).] these important books succeed, in mutually reinforcing ways, in placing disability deinstitutionalization and disability justice into productive conversation with prison abolitionism and anti-carceral studies. they show how these distinct movements and theoretical traditions have been too narrowly confined and suggest how much can be achieved once we break down the silos dividing them, how much readier we will be to resist the interlocking oppressions constituting the carceral state. i am a law professor. my research has focused on psychiatric detention and forced medication,[footnoteref:3] and prison law.[footnoteref:4] i am also co-chair of east coast prison justice society,[footnoteref:5] which engages in jail monitoring[footnoteref:6] and advocacy around policing accountability / defunding and strengthening community supports.[footnoteref:7] when covid-19 struck, we and other organizations collaborated to help bring about the release of over 40% of those in nova scotia’s jails.[footnoteref:8] today the numbers are back to pre-pandemic levels and institution-wide lockdowns are more frequent and prolonged than before.[footnoteref:9] conditions in disability institutions have likewise hit new lows.[footnoteref:10] yet again and again the critiques and praxis proper to prison abolitionism and disability deinstitutionalization pull apart. ben-moshe’s and steele’s books urge us to deepen and coordinate our engagement with two axes: disability institutionalization and criminal law-based incarceration. [3: see rusi stanev & sheila wildeman, “freedom: a work in progress” in eilionoir flynn et al, eds, global perspectives on legal capacity reform (oxford: routledge, 2019); sheila wildeman, “consent to psychiatric treatment: from insight (into illness) to incite (a riot)” in colleen flood & jennifer chandler, eds, law and mind: mental health law and policy in canada (toronto: lexisnexis, 2016); sheila wildeman, “protecting rights and building capacities: challenges to global mental health policy in light of the convention on the rights of persons with disabilities” (2013) 41(1) jlme 48; sheila wildeman, “agonizing identity in mental health law and policy (part ii): a political taxonomy of psychiatric subjectification” (2016) 39(1) dalhousie law journal 147.] [4: “habeas corpus unbound” in colleen m flood & paul daly, eds, administrative law in context, 4e (toronto: emond publishing, 2021); sheila wildeman, “disabling solitary: an anti-carceral critique of canada's solitary confinement litigation” in claire spivakovsky, linda steele & penelope weller, eds, the legacies of institututionalisation: disability, law and policy in the 'deinstitutionalised' community (oxford: hart publishing, 2020).] [5: https://www.eastcoastprisonjustice.ca/. ] [6: see hanna garson with sheila wildeman & harry critchley, conditions of confinement in men’s provincial jails in nova scotia: ecpjs visiting committee annual report 2021-22 (halifax: east coast prison justice society, 2021) at https://www.eastcoastprisonjustice.ca/conditions-of-confinement-report.html; our 2021-22 annual report is soon to be released and will be accessible on the ecpjs website. conditions of detention in nova scotia jails designated for women are subject to comparable civil society monitoring led by the elizabeth fry society (mainland nova scotia) https://www.efrymns.ca/. ] [7: tari adjadi, harry critchley, el jones & julia rodgers, defunding the police: defining the way forward for hrm (halifax: board of police commissioners subcommittee to define defunding police, 2022).] [8: el jones, “clearing out the jails,” halifax examiner (march 24, 2020) https://www.halifaxexaminer.ca/uncategorized/clearing-out-the-jails/; haley ryan, “nova scotia jail population almost cut in half under covid-19 measures” cbc news (april 22, 2020) https://www.cbc.ca/news/canada/nova-scotia/jail-population-cut-in-half-new-covid-19-measures-1.5541732. ] [9: sheila wildeman & harry critchley with hanna garson, laura beach and margaret anne mchugh, conditions of confinement in men’s units of provincial jails in nova scotia (halifax: east coast prison justice society, 2022). ] [10: ruby dhand, anita szigeti, maya kotob, michael kennedy & rebecca ye, “litigating in the time of coronavirus: mental health tribunals’ response to covid-19” (2020) 37(1) windsor yearbook of access to justice 132. available at ssrn: https://ssrn.com/abstract=3749772; tess sheldon, karen spector & sheila wildeman, “viruses feed on exclusion: psychiatric detention and the need for preventative deinstitutionalization,” ricochet (april 12, 2020) https://ricochet.media/en/3038/viruses-feed-on-exclusion-psychiatric-detention-and-the-need-for-preventative-deinstitutionalization; sheila wildeman, “covid-19 and disability institutions: time to act is now” halifax herald (april 14, 2020) https://www.saltwire.com/nova-scotia/opinion/sheila-wildeman-covid-19-and-disability-institutions-time-to-act-is-now-437259/. ] both books expose under-examined continuities among discourses and institutions of punishment (prisons, jails) and putative care (psychiatric hospitals, nursing homes, group homes). they show that anti-carceralism requires disability justice and that disability justice means reckoning with the forces of colonialism and racial capitalism, as well as ableism, at the foundations of the carceral state. those who reside in mi'kma'ki, or the region known as atlantic canada, have been harshly reminded of just what is at stake in these conversations in recent years. in may 2020, regis korchinski-paquet, an indigenous-ukranian-black woman with roots in african nova scotia, fell from a toronto balcony to her death during a police “wellness check”.[footnoteref:11] the following month, in new brunswick, another “wellness check” ended in the police shooting death of chantel moore, an indigenous woman.[footnoteref:12] a week later, again in new brunswick, rodney levi, a member of the metepenagiag mi’kmaq nation, was killed during a police “wellness check”.[footnoteref:13] [11: m. maillard, “regis korchinski-paquet (1990-2020)” blackpast.org (march 28, 2021) https://www.blackpast.org/global-african-history/people-global-african-history/regis-korchinski-paquet-1990-2020/. ] [12: bobbi-jean mackinnon, “chantel moore inquest shows 'urgent need' for inquiry into systemic racism, say chiefs” cbc news (may 20, 2022) https://www.cbc.ca/news/canada/new-brunswick/chantel-moore-inquest-wolastoqey-chiefs-systemic-racism-inquiry-indigenous-1.6459930. ] [13: shane magee, “rodney levi's death a homicide, jury decides” cbc news (october 8, 2021) https://www.cbc.ca/news/canada/new-brunswick/rodney-levi-inquest-jury-ruling-1.6204506. ] these deaths mark the urgency of bridging anti-colonialist, critical race and critical disability analyses – an urgency felt and expressed in the streets. ben-moshe’s and steele’s books have arrived at a time of rising resistance and activism, a time when prison abolitionism and disability deinstitutionalization are respectively attaining unprecedented prominence. in canada, the past fifteen years have been marked by increased public attention to and legal advocacy on prison conditions, particularly solitary confinement, and spontaneous and organized resistance to the violence of policing, incarceration and solitary confinement falling disproportionately on indigenous and black persons and persons with psychosocial disabilities. at the same time, here in nova scotia, a long history of struggle on deinstitutionalization has recently been re-energized through a human rights lawsuit which has established that continued institutionalization of people labeled with intellectual and developmental disabilities constitutes systemic discrimination.[footnoteref:14] [14: disability rights coalition v. nova scotia (attorney general), 2021 nsca 70; vernon ramesar, “appeal court rules n.s. discriminated against 3 adults with disabilities” cbc news (october 6, 2021) https://www.cbc.ca/news/canada/nova-scotia/nova-sciotia-court-upholds-finding-systemic-discrimination-people-with-disabilities-1.6201752. ] synergies between deinstitutionalization and prison abolitionism are slowly entering public consciousness in the atlantic region, for instance through the work of abolitionist poet and activist dr. el jones.[footnoteref:15] jones, who is a member of east coast prison justice society and a longtime leader in abolitionist prison justice advocacy, recently convened public consultations and a report on defunding police,[footnoteref:16] carrying forward a tradition of anti-racist, anti-colonialist and anti-capitalist black feminist radicalism on the east coast. key subcommittee members of the defund report work included local deinstitutionalization leader jen powley.[footnoteref:17] meanwhile, vicky levack has also been carefully linking her public resistance to 10 years of nursing home institutionalization[footnoteref:18] to other forms of incarceration and the criminalization of homelessness.[footnoteref:19] the question then is not whether anti-carceral deinstitutionalization and prison abolitionism can be brought into conversation, but rather how these emerging conversations can best be leveraged to a common set of ends. [15: see notes 6 & 7, above, and el jones, abolitionist intimacies (halifax: fernwood press, 2022).] [16: see note 6, above.] [17: jen powley, making a home: assisted living in the community for young disabled people (halifax: fernwood, forthcoming may 2023); jen powley, “we need more people with disabilities in politics – and represented in policy” cbc news (aug 14, 2021) https://www.cbc.ca/news/canada/nova-scotia/disability-in-politics-1.6139870. ] [18: “n.s. gov't appeal in disabled rights case shows 'they don't view us as people,' advocate says” cbc radio: the current (dec 13, 2021) https://www.cbc.ca/radio/thecurrent/the-current-for-dec-13-2021-1.6280751/n-s-gov-t-appeal-in-disabled-rights-case-shows-they-don-t-view-us-as-people-advocate-says-1.6280752.] [19: jen taplin, “halifax homeless advocates push back against encampment plan” halifax herald (may 2, 2022) https://www.saltwire.com/atlantic-canada/news/halifax-homeless-advocates-push-back-against-encampment-plan-100724634/.] which brings me back to these books. among the dynamics called out are tendencies of both prison abolitionism and liberal-legalism to uncritically accept a medical model of disability, leading to a retrenchment of carceral “care”, and tendencies of disability rights advocacy to assert belonging and advance inclusion in ways reproductive of the dominant (carceral) order. decarcerating disability [dd] builds on previous work establishing ben-moshe as a unique voice in critical disability theory and anti-carceral studies.[footnoteref:20] the book explores strategies of deinstitutionalization and prison abolitionism in the us as interconnected expressions of a shared anti-carceral project. in particular, it deconstructs the logic of mass incarceration through a focus on “race-ability”: “the ways race and disability, and racism, sanism, and ableism [constitute] intersecting oppressions.” (dd 5). these complex intersections are exposed and challenged in ben-moshe’s book in part through careful assemblage of “a genealogy of the largest decarceration movement in u.s. history: deinstitutionalization” – i.e., the exodus of persons labeled with psychiatric disabilities and/or intellectual and developmental disabilities from large congregate facilities from the 1960s on (dd 2). ben-moshe demonstrates how this mass release implicated diverse social, legal and economic determinants, including shifts in and clashes among multiple forms of knowledge/power. at the same time, her account centres the histories and subjugated knowledges of prison abolitionist as well as self-advocate and mad movements and the allied scholarship of anti-psychiatry. it also points out tensions among a more assimilationist variant of disability deinstitutionalization (coding disability as white, middle class and heteronormative) and a more radically intersectional variant wherein disability (and/or debility, as advanced by jasbir puar)[footnoteref:21] is denied the legal legitimation of disability rights. [20: a list of ben-moshe’s prior publications, beyond the groundbreaking collection, liat ben-moshe, chris chapman & allison c. carey, eds, disability incarcerated: imprisonment and disability in the united states and canada (new york: palgrave macmillan, 2014)), may be accessed at https://www.liatbenmoshe.com/copy-of-publications. ] [21: jasbir k. puar, the right to maim: debility, capacity, disability (durham and london: duke up, 2017).] a centrepiece of the book is chapter 4’s reprise of ben-moshe’s article, “why prisons are not the new asylums.”[footnoteref:22] here she contests the popular view that deinstitutionalization was a failure because it abandoned people to the streets where they became vulnerable to criminal law-based incarceration – a story that tends to be punctuated with renewed support for coercive forms of institutionalized “care”. ben-moshe warns that representing deinstitutionalization as failure is not only inconsistent with evidence that former residents of institutions often thrived post-release, it also misses the key insight that it was not deinstitutionalization as such but rather the rise of neoliberal policies of privatization and social abandonment – together with punishing logics of race-ability – that failed. or, to put it another way, neoliberalism in fact succeeded in its objective, which was to hollow out social supports that would strengthen relationships of care while further entrenching the dominance of the for-profit “carceral-industrial complex,” not only prisons but “a growing private industry of nursing homes, boarding homes, for-profit psychiatric hospitals, and group homes” (dd 12). [22: liat ben-moshe, “why prisons are not the new asylums” (2017) 19(3) punishment and society 272. ] there is much more besides to decarcerating disability. of particular interest to lawyers and legal scholars is chapter 7, “decarcerating through the courts”. it offers a retrospective of u.s. deinstitutionalization and prison litigation, bringing together seldom-compared lines of case law to foster reflection on successes as well as cautionary tales. the cautionary tales turn in part on distinctions between litigating for reforms and litigating for abolition, and reminders of how legal wins have often been followed by new, slightly remodeled carceral forms. in these tellings, ben-moshe emphasizes the perils of litigation which ignores the interaction of disability injustice with other interlocking injustices -a topic i return to below. steele’s disability, criminal justice and law [dcjl] exposes further, previously under-explored and under-theorized connections between disability institutionalization and incarceration based in criminalization. it concentrates on court diversion – an ostensibly humane, supportive alternative to crime-based incarceration. through a meticulously-supported reading against the grain, the book offers the most sustained and substantiated account in the socio-legal literature of how this reformist-rehabilitative institutional form reproduces carceral-oppressive harm. this is accomplished through engagement with social theory, with regimes of court diversion in multiple jurisdictions, and with fictionalized case studies drawn from the “people with mental health disorders and cognitive disabilities in the criminal justice system in new south wales” dataset as well as court diversion judicial decisions from that state. the various sources arrayed are elucidated through a formidable yet uncommonly accessible critical-theoretical apparatus. steele’s book employs this dense weave of material to deepen the “net-widening” critique – the thesis that court diversion expands the reach of state coercion. it does so specifically by establishing, in careful detail, how diversion imbricates ableism into state projects of colonial and racial domination. on steele’s account, court diversion reifies and operationalizes a medicalized conception of disability, which in turn translates structural oppression and interlocking injustices into individualized risks and deficits. this process of neoliberal translation disproportionately harms the criminalized disabled – those structurally vulnerable to colonial, racist, heteropatriarchal power. the book further establishes diversion as but one aspect of a project foundational to the wider legal system: “legitimating the white, fit, settler subject and nation” (dcjl 75) while functioning “to pathologise and dehumanise indigenous and first nations people,” “legitimate genocide,” and obstruct “collective self-determination and nation-building” (dcjl 9). building on puar’s exploration of debilitation, the book argues that diversion is not only about extending coercion into the lives of those diverted but also legitimating carceral confinement of those who do not qualify for diversion (dcjl 92-96). a striking aspect of disability, criminal justice and law is its extension of its critique to international human rights and specifically disability rights law. through close readings of case law and commentary, steele argues that “the crpd and its jurisprudence focus overly on discrimination purely along lines of disability,” stopping “short of broader engagement with interlocking dynamics and forces of oppression” or with prison abolitionism (dcjl 21). a question opened for further exploration is whether crpd advocacy can possibly be reanimated to be more responsive to the interactive injustices of both criminal law-based incarceration and disability institutionalization. with this i come to my central question: what if any role might law, or specifically rights-based litigation, play in resisting carceral state strategies and redirecting material and conceptual resources toward supports for diverse forms of flourishing? we might consider this question in light of recent litigation challenging solitary confinement in canada’s federal prisons.[footnoteref:23] (subsequent litigation has targeted provincial jails.[footnoteref:24]) over 30% of federal prisoners – and nearly 50% of those incarcerated in prisons designated for women – are indigenous, despite indigenous people composing about 5% of the wider population.[footnoteref:25] canada’s prison populations are also reflective of other interlocking oppressions, including on grounds of race, disability, gender, sexual identity and poverty. following decades of struggle, litigation in canada achieved a modicum of success in establishing that solitary confinement for 15 days or more,[footnoteref:26] or for any period where a person has a serious mental health condition,[footnoteref:27] violates human rights including the right to be free of cruel and unusual treatment. legal remedies have included a cap on the duration of solitary, rights to independent review, and monetary damages.[footnoteref:28] in the federal prison context, the government’s response has been a complex bureaucratic system (“structured intervention units”) marked by ample discretion, intensive mental health screening and a vast correctional-medical apparatus of overseers – a regime where solitary confinement persists and is mainly used on indigenous prisoners.[footnoteref:29] [23: for a retrospective on these appeals and the decision of the federal government not to proceed beyond two provincial appellate courts, see public safety canada, “appeals to the supreme court of canada on administrative segregation” (april 27, 2020) https://www.publicsafety.gc.ca/cnt/trnsprnc/brfng-mtrls/prlmntry-bndrs/20200730/019/index-en.aspx. ] [24: see, e.g., madeleine cummings, “alberta court certifies class action lawsuit on solitary confinement” cbc news (july 20, 2022) https://www.cbc.ca/news/canada/edmonton/alberta-court-certifies-class-action-lawsuit-solitary-confinement-1.6526449. ] [25: office of the correctional investigator, “indigenous people in federal custody surpasses 30%” (january 2020); “proportion of indigenous women in federal custody nears 50%” (december 2021).] [26: canadian civil liberties association v canada (attorney general), 2019 onca 243.] [27: francis v ontario, 2021 onca 197.] [28: see, e.g., brazeau v. canada (attorney general), 2020 onca 184.] [29: the structured intervention unit implementation advisory panel, preliminary observations of the operation of correctional service of canada’s structured intervention units (october 2021) https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2022-siu-iap/index-en.aspx. ] i argue elsewhere[footnoteref:30] that this litigation fell prey to an error these two books unmask: adopting a medicalized model of disability in the effort to substantiate and disrupt carceral violence, while invisibilizing social-structural determinants (including gendered colonial capitalism). as ben-moshe points out (dd 15-18), grounding critique of solitary confinement in an unsophisticated model of mental illness risks re-introducing carceral logics, reducing intersectional oppression to clinically mediated problems and remedies. litigation constructing the harms of solitary as harms to mental health has, i suggest, produced at least three unintentionally carceral consequences: 1) increased focus on mental health screening, reinforcing popular conceptions of criminalization as individual pathology while justifying more intense restrictions on those identified as high risk/needs;[footnoteref:31] 2) consequent legitimation of putatively therapeutic institutional spaces marked by unparalleled deprivations and surveillance;[footnoteref:32] and 3) what may be termed the problem of the remainder, whereby (again following puar on debilitation) those not deemed too mad for solitary are by implication fit for it. [30: "disabling solitary,” above, note 3.] [31: see note 28, above, and brigitte pellerin, “assessing safety risk the right way” cba national (sept 27, 2022) https://www.nationalmagazine.ca/en-ca/articles/cba-influence/submissions/2022/assessing-safety-risk-the-right-way. ] [32: correctional service of canada, commissioners’ directive 843 “interventions to preserve life and prevent serious bodily harm” https://www.csc-scc.gc.ca/acts-and-regulations/843-cd-eng.shtml ] is it possible to frame legal strategies to better support anti-carceral remedies,[footnoteref:33] for instance by doing more to surface intersectional injustice? might attention to how disability discrimination interacts with racist and other dimensions of carceral violence produce novel, transformative remedies? these questions assume new relevance as canada’s solitary confinement litigation moves from prisons to forensic and civil psychiatric settings.[footnoteref:34] is it possible to frame the harms of solitary in these and other settings in ways that avoid provoking formalist-procedural fixes or renewed investment in putatively therapeutic yet simultaneously more secure carceral sites – including sites intimately situated in one’s own body (as in the case of chemical incarceration[footnoteref:35])? [33: debra parkes, “solitary confinement, prisoner litigation, and the possibility of a prison abolitionist lawyering ethic” (2017) 32(2) cjls 165.] [34: see, e.g., rochon genova llp, “waypoint solitary confinement class action” at https://www.rochongenova.com/current-class-action-cases/waypoint-solitary-confinement-class-action/; sheila wildeman, “opinion: the other solitary: psychiatric segregation needs to end, too” globe and mail (jan 31, 2018) https://www.theglobeandmail.com/opinion/the-other-solitary-abusing-mental-health-based-confinement/article37806269/. ] [35: erick fabris, tranquil prisons: chemical incarceration under community treatment orders (toronto: ut press, 2011). ] in closing, i turn to the remedial pathways contemplated by the authors. both books are written from a place of hope – the hope that the carceral logics shoring up capitalist, colonialist and ableist power may be radically subverted, not just superficially reformed or diverted. yet rather than giving readers (including lawyers) specific instructions, the authors offer general observations aimed at generating new ways of thinking, working and being together. decarcerating disability positions law as a site of contradiction and unpredictability – its meaning and effects contingent on ever-shifting factors defying the calculus of strategists. acknowledging that no litigation win has been a straightforward success, ben-moshe asks: what counts as success? (dd 241). her response is squarely in the anti-carceral tradition. first, closing institutions is insufficient. what is required is “an epistemic shift . . . breaking down the rationality and legitimacy of confinement as a practice” (dd 236). this is developed through her idea of dis-epistemologies – the deconstruction and reassembly of ideas already in play (including legal precedents) in an environment never fully or hegemonically determined. still, the work of transforming carceral logics is proposed to be reconcilable with pragmatic action. this includes using law and political advocacy to save lives and create conditions in which incarcerated and institutionalized people may build solidarity around common causes. disability, criminal justice and law similarly affirms that critical lawyering and pedagogy may contribute to prison abolition and disability deinstitutionalization. yet steele’s book is dedicated to showing how criminal and human rights law is steeped in oppressive concepts functioning to legitimate injustice. this suggests the enormity of the challenge of using law to promote transformative change. it also speaks to the responsibility of lawyers to work in solidarity with people incarcerated across different institutional contexts to expose the contradictions between a liberal-legal ethos of rationalized deprivation of liberty and/or medico-legal ethos of institutionalized care and the real-world violence of these carceral logics. steele’s book proposes a set of strategies through which lawyers and non-lawyers may “contest, rather than reify, interlocking dynamics and forces of oppression that shape the conditions in which criminalised disabled people are situated” (dcjl 22). this means using legal institutions to disrupt law’s complicity in settler colonialism and ableist and racist injustice, and bringing disability as a legal and social category into more direct relationship with projects of indigenous self-determination and racial justice. among the initiatives proposed are “community-led support, safety and accountability systems, remedying violence and harm, critical disability approaches to legal pedagogy, creative engagement with law reform, strategic engagement with human rights, and jurisprudences of disability tracing endurance and evolution in law of degeneracy and the institution” (dcjl 22). the hope is that such initiatives may learn from past successes and failures in the ongoing movements for disability deinstitutionalization and prison abolitionism. the very least that lawyers and other advocates can do is avoid reproducing the uncritically medicalized model of disability afflicting some articulations of prison abolitionism, and the uncritically liberal-legal model of crime and punishment bolstering disability deservingness (or rather undeservingness of incarceration) in some deinstitutionalization campaigns. perhaps then we may advance the strategies both authors call for, decarcerating diversion and re-centring substantive, transformative equality in order to advance the mutually-implicated emancipatory projects of prison abolition and deinstitutionalization. __________________________________________________________________________________ 4 __________________________________________________________________________________ 3 response to radhika alessandrini immaterial labour and alternative valorisation processes __________________________________________________________________________________ feminists@law vol 1, no 2 (2012) __________________________________________________________________________________ immaterial labour and alternative valorisation processes in italian feminist debates: (re)exploring the ‘commons’ of re-production donatella alessandrini[footnoteref:1]* [1: * senior lecturer, kent law school, university of kent, uk. d.alessandrini@kent.ac.uk. ] abstract: this article takes its cue from desai’s critique of the new communists of the commons, particularly her claim that their project is built upon a series of misunderstandings about the dynamics of capital accumulation, the production of value in post-fordism and the concept of the ‘commons’ itself. focusing on earlier explorations by italian feminists of the dynamic interaction between labour and value, the contribution this article makes to the commons debate is three-fold: first, it argues that the most interesting insights emerging from immaterial/cognitive/affective labour theories on which italian post-workerists rely to put forward a renewed understanding of the commons derive from this feminist body of work. secondly it shows how, despite being relied upon, the radical potential of this work has been limited by positing a qualitative shift to post-fordist production that pays little attention to the important connections between labour and value that make up our common world. finally, the article focuses exactly on this potential, that is, the challenge to capitalist value through the instantiation of other processes of valorisation, in light of the current attack on social reproduction. introduction this article takes its cue from desai’s critique of the new communism of the commons as articulated by badiou, zizek and hardt and negri.[footnoteref:2] she compares the ‘new communism’ to 19th century proudhonism arguing that common to both is a ‘failure to comprehend the dynamics of capitalist accumulation and a general antipathy to any general organisation of labour in society, and thus to any serious politics…’ (2011:204). she makes two central points in relation to the ‘new communists’: the first is about their misunderstanding, disingenuous or not, of marx’s labour theory of value. the second is about their misconception of the commons and refusal to engage with the state. [2: the article originates as a response to a paper presented by radhika desai at a workshop on ‘diminishing returns? feminists engagements with the return to the commons’ in march 2011 which has now been published on international critical thought. see desai (2011), reproduced in this issue of feminists@law with kind permission. ] in this article i reflect on both arguments by way of a third point, that is, that we cannot fully appreciate the significance of the theories of the commons these authors articulate, and this is particularly the case with negri’s work, without an understanding of their use of the concept of immaterial labour, a concept which has played a crucial role at least since the 1970s in italian feminist debates. by referring to these debates i do not claim that italian feminists were the first to think about immaterial labour. i focus on their work however for two main reasons: firstly because several authors who have now become known as the theorists of immaterial labour, such as negri, vercellone, lazzarato, and fumagalli draw exactly, although problematically, on the work of these feminists. secondly because the contribution the latter have made to our understanding of the relationship between labour and value has important implications for the ways in which we might think of responding to the current attack on social reproduction. the importance of this body of work consists of having brought to light the arbitrary ways in which capitalist processes of valorisation produce particular oppositions, especially that between material and immaterial, manual and mental and ultimately productive and unproductive labour. the claim i intend to make is that, by selectively relying on this work while positing a radical rupture in the 1970s this is the argument that immaterial labour has become paradigmatic of the post-fordist mode of production the ‘new communists’ end up reinforcing the existence of such oppositions, thereby undermining this work. emphasising the problematic nature of such an engagement not only allows me to respond to desai’s critique of hart and negri’s (mis)use of marxian concepts, particularly in relation to the so-called law of value. it also gives me the opportunity to reflect on the crucial contribution this feminist work has made in exploring alternative processes of valorisation. this is, i think, the challenge we are confronted with when thinking of our engagements with the ‘commons’ and their potential for disrupting capitalist processes of production and reproduction today. the article is organised as follows: in the first section i explore the link between the ‘commons’ and immaterial labour, focusing particularly on hardt and negri’s reflections on the incommensurability of value in post-fordist production. in order to appreciate their argument it is important to briefly refer to the crucial position that the relationship between labour, time and value has occupied within political economy. classical political economists such as ricardo have seen labour as the source of all value. marx later introduced the important distinction between concrete labour, the activity which creates particular products, and abstract labour, the ‘socially mediating activity’ (postone, 1996:166) that homogenises all concrete labours. it is abstract labour that gives value its capitalist measure, that is socially necessary labour time, and it is this measure that allows for the commensurability of disparate commodities on the market (marx, 1976). abstract labour therefore emerges as a specific capitalist form of labour: it is ‘a social phenomenon connected with a determined social form of production’ (rubin, 1972:135). although hardt and negri acknowledge the contingent nature of the form labour takes under capitalism, the thrust of their argument is that post-fordism has radically altered the relationship between labour, time and value: as immaterial labour becomes qualitatively more prominent and increasing labour flexibility makes the line between labour and leisure time (i.e. the time for production and reproduction) more difficult to draw, socially necessary labour time ceases to provide the measure of value thereby making apparent value’s incommensurability. in the second section i engage with the most interesting aspects emerging from this analysis and show how the insights about the contingent nature of value production and measurement derive from the feminist work on immaterial labour and value. in this respect i intend to show how, despite being relied upon, the radical potential of this body of work has been cut short. italian feminists such as fortunati (1977; 1981) have meticulously shown how socially necessary labour time has always been an arbitrary, although fully operative, measure of value; how this social phenomenon has generated the problematic distinction between production and reproduction time as well as that between material and immaterial labour; and how reproductive labour has the potential to create alternative processes of valorisation. the analytical and political import of their analysis therefore consisted of carefully tracing the (always) shifting connections between labour, time and value which instantiate capitalist value, so to be able to challenge it. this careful tracing is what gets interrupted with hardt and negri’s historic argument that posits the shift from fordism to post-fordism in terms of a rupture: the significance of this move, i argue, is that these very intricate and shifting connections are left undisturbed. in the third section i therefore conclude by reflecting on the significance of the feminist challenges to capitalist value, particularly in the age of ‘sound science’ and austerity. one important division capitalist value has kept reinstating, despite the shifting connections that have characterised it, is that between the sphere of production within which cooperation is encouraged and that of reproduction where atomisation is supported through the house and the family (federici, 2004). thinking about ways of recombining the two spheres represents an important challenge to this social division of labour and the capitalist value that underpins it. it also allows us to see the ‘commons’ as the terrain on which the production and reproduction of human and non-human life takes place: although never free of power and institutional arrangements, as desai points out, this is the terrain on which to promote, and struggle for, different processes of valorisation. the task of bringing together these two spheres acquires particular relevance today given the attack on social reproduction taking place in europe as elsewhere. in this respect the issue of labour and its organisation comes to the fore and brings back the vexed question of the possibility of a feminist politics that engages with the state. as a way of (re)starting this important discussion, i consider the potential of the recent call from feminist economists for the state to become a permanent guarantor of jobs. labour, value and the commons in commonwealth hardt and negri argue that the commons include not only the common wealth of the material world, such as water, air, soil, forests and all nature’s bounty which classical european political texts refer to as the common inheritance of humankind. they also, and more importantly, include ‘those results of social production that are necessary for social interaction and further production, such as knowledges, languages, codes, information, affects and so on’ (2009:viii). their argument is that with the shift from fordist to post-fordist capitalism, ‘production has become first and foremost production of knowledge and subjectivity’, in other words biopolitical production (ibid:131). if, they argue, what produces value today is above all ‘human faculties, competences and knowledges’ (ibid:132), then this means that capital operates outside directly productive processes and has become entirely parasitic; hence the possibility for the multitude of overcoming it through a common decision (ibid:137). this is not an automatic process of course for biopolitical production implies ‘new mechanisms of exploitation and capitalist control […however it also] grants labour increasing autonomy and provides the tools or weapons that could be wielded in a project of liberation’ (ibid:136-37). the commons therefore becomes a project that ‘opens a new space for politics’ where to pursue the construction of a common world through creativity and cooperation (ibid:ix). this is a political project that negri in particular has pursued for some time within the operaist, or as referred to in the anglo-saxon world workerist, movement. now known as post-workerists, militants within this tradition have since the 1960s sought to engage with, and find alternatives to, what they saw as the two major forms of modern oppression, namely the state and wage labour. one important concern of the movement has been the relationship between capitalist productivity and workers’ struggles. whereas tronti (1966:89-95) for instance has argued that the latter compel capitalists to constantly devise ways of increasing labour productivity in order to extract surplus value, so that capital always reacts to labour’s inventiveness, others such as panzieri (1994:73-92) have seen this causality operating in the opposite direction, so that it is the capitalist reorganization of production processes that most often than not is capable of originating new struggles. this debate on the historical tendency of capitalist development and, within it, the relevance of marx’s labour theory of value has been central to the workerist debate and can be seen informing hardt and, particularly, negri’s project. for them, the continuous pressure that workers’ struggles have put on capital since the 1960s has led not only to changes in the composition of the labour force, which has become more flexible and precarious and registered the ascendancy of the immaterial worker. it has at the same time generated changes in the composition of capital, with the proportion of value produced by (immaterial) labour increasingly higher than that produced by constant capital (hardt and negri, 2009:132). thus, they claim, the tendency towards the hegemony of biopolitical production requires that we deal with ‘the new conditions of the production of surplus value’ as value production invests all realms of life exceeding the confines of formal work time (ibid:137) so as to be able to identify the new (post-fordist) forms of exploitation. this is the premise for the project of liberation from capital they see the multitude capable of. now this refers directly to desai’s two main arguments. the first is that hardt and negri’s misunderstanding of marx’s labour theory of value, particularly the value of knowledge, makes their argument about the importance of cognitive and biopolitical labour and production, redundant.[footnoteref:3] as she points out relying on marx’s distinction between use value and exchange value [3: marx’s labour theory of value posits that a commodity’s value is determined by the socially necessary labour-time required for its production (marx, 1976: chapter 1). ] [a]ll labour processes involve knowledge, and in this the so-called information commodities are no different except in degree. all such knowledge is social and is embodied in the collective worker and this, while making the working class as a whole more productive, in part by embodying more knowledge in some parts of it than others, by no means turns it into fixed capital. knowledge does not create [exchange] value. though it might generate ever greater heaps of use values and make labour more productive, it is not itself an intermediate good. the value of any intermediate good is only transferred to the product in being destroyed in the intermediate form and knowledge which is embodied in the collective worker is never destroyed but can be used repeatedly and for many different purposes. (desai, 2011:217) according to desai therefore, hardt and negri confuse use value (which speaks of the usefulness of a thing) and exchange value (which refers to the commensurability of things on the market) and take the sphere of circulation (of prices) for that of production (of value). furthermore by denying the possibility of ‘a general organisation of labour in society’ (ibid:220) they refuse to intervene in the latter sphere, thereby refusing to make any difference. this is connected to her second point about the ‘commons never being “everybody’s property”. rather, [she points out], the commons were [always] defined by complex institutional arrangements which provided rights to some sets of users and explicitly excluded others’ (ibid:215). i will get back to this second point and the issue she raises about institutional arrangements in the final section of the paper. for the time being i want to point out that hardt and negri’s understanding of marx’s labour theory of value is much more nuanced, although ambivalent, than what it is presented here, not only in commonwealth but also in empire (2001) and multitude (2004). they know very well that the object of marx’s labour theory ‘is not to look for an explanation of why prices are what they are and find in it labour’ (elson, 1979:123). put differently, the object of marx’s enquiry was never to theorise prices or account for ‘the origin or cause of anything’ (ibid:121), hence the weakness of arguments according to which the category of value is inadequate to account for actual prices in the market (ibid:116). rather as elson, whom they cite, argued the object was to understand why ‘labour takes the forms it does and what the political consequences [of labour taking these forms] are’ (ibid: 123). thus, it is clear to them that this is an issue of labour and its organisation: in their 1995 labour of dionysus, they point to the fact that marx conceived of the labour theory of value from two perspectives. from one, which corresponds to the tradition of the classical political economy of smith and ricardo, value is the socially necessary labour time embodied in the commodity and the law of value explains the deployment of labour power among different sectors of social production; in other words the law of value tries to explain how equilibrium is achieved when there is no centralisation or coordination of production in the chaotic world of capitalist producers. but they also acknowledge, and this is a much more fruitful line of enquiry, that in marx the labour theory of value is presented differently from classical political economy. here labour is an antagonistic feature and its relationship to value is not unidirectional. from this perspective, the unity of value is primarily identified in its relation to ‘necessary labour’, which is not a fixed quantity but a dynamic element of the system. necessary labour is historically determined by the struggles of the working class against waged labour in the effort of transforming labour itself. this means that although in the first theory value was fixed in the structures of capital, in the second theory labour and value are both variable elements. it is not sufficient to pose the economic structure of labour as the source of a cultural superstructure of value; this notion of base and superstructure must be overturned. if labour is the basis of value, then value is equally the basis of labour. what counts as labour, or value creating practices, always depends on the existing values of a given social and historic context; in other words ... [t]he definition of what practises comprise labour ...is not given or fixed, but rather historically and socially determined, and thus the definition itself constitutes a mobile site of social contestation. (hardt and negri, 1995:9) what emerges from this second perspective is their acknowledgment that for marx the law of value is not a transhistoric concept: it is rather a category meant to analyse the form of exploitation specific to capitalist production. hence its contingency is brought to full light. my point therefore is that hardt and negri know very well that the creation of value is a collective undertaking that has to do with the organisation of labour and production, and ultimately with the way we organise our social provisioning (picchio, 1992, 2009). they also know that it never made sense, except in capitalist terms, to conceive of things as commodities whose value was simply the product of factory work that could be measured on the basis of the time spent to produce them. thus, they are not really saying anything new when they point to the growing importance of ‘externalities’ to show how value always exceeds measure. in commonwealth for instance, they refer to real estate values as an example of the impossibility of measuring value according to labour time or any other ‘intrinsic’ factor, pointing to the fact that values in this sphere are determined by both negative externalities such as pollution, criminality, and traffic congestion; and positive externalities, such as presence of amenities, rich cultural life, intellectual channels of exchange and lively social interaction (hardt and negri, 2009:154-56). yet, when they say that the production of value of a commodity is no longer limited to the factory but is dispersed across society as a whole and that value has become un-measurable, they are positing this as a radical break which is highly problematic for two interconnected reasons. first because, contradicting the insight deriving from the second perspective on the law of value, they reassert the unidirectional (causal and transhistoric) link between labour and value even as, and exactly because, they state this relationship has now been broken. how, then, to account for the difference between the second more nuanced conception of value in the labour of dionysus and the more ambivalent one in their later work? at one level, this can be explained through the fascination post-workerists have had for some time with the section in the grundrisse where marx points to a stage in which the increasingly ‘scientific’ nature of production processes will pave the way to a communist future where labour time will no longer provide the measure of value and exchange value will therefore collapse: ...to the degree that large industry develops, the creation of real wealth comes to depend less on labor time and on the amount of labor employed than on the power of the agencies set in motion during labor time, whose ‘powerful effectiveness’ is itself in turn out of all proportion to the direct labor time spent on their production, but depends rather on the general state of science and on the progress of technology, or the application of this science to production. ... as soon as labor in the direct form has ceased to be the great well-spring of wealth, labor time ceases and must cease to be its measure, and hence exchange value [must cease to be the measure] of use value. the surplus labor of the mass has ceased to be the condition for the development of general wealth, just as the non-labor of the few, for the development of the general powers of the human head. with that, production based on exchange value breaks down and the direct, material production process is stripped of the form of penury and antithesis. (marx, 1973:704-6) it is by relying on this passage that hardt and negri see the historical tendency of capitalism to replace low-tech work with immaterial and cognitive labour leading to the crisis of value measurement. whether this tendency has led or is leading to the collapse of exchange value, the value that allows commodities to be commensurable on the market, is however highly questionable: thirty years ago caffentzis pointed to the parallel growth of ‘labour intensive’ and ‘knowledge intensive’ sectors, showing how ‘an enormous amount of work must be produced and extracted from the low sectors in order to be transformed to capital available for the high sector’ (1992:249). thus, tracing the connections between the two sectors led him to argue that ‘in order to finance the new capitalist “utopia” of “high-tech”, venture-capital demanding industries in the energy, computer and genetic engineering areas, another capitalist “utopia” must be created: a world of “labor intensive”, low waged, distracted and diffracted production’ (ibid). the fact that low-tech and high-tech sectors have grown in tandem casts doubts over whether or not this passage in the grundrisse can be relied upon to describe the current stage of capitalism. marx’s grundrisse might provide the theoretical fuel to the project of liberation hardt and negri want the multitude to embark on. however, positing this radical break with fordist value production refuses to attend to the important connections, including the continuities between fordist and post-fordist value, that make up our global economy. certainly, it cannot explain how the coexistence of low-tech and high-tech sectors is implicated in the production of value at the global level. similarly when post-workerists claim that, in addition to the loss of labour time as the determinate measure of value, post-fordism has seen financial markets becoming the place where value is determined (fumagalli and mezzadra, 2009:211), they are again privileging a rupture, as opposed to the careful tracing of shifting continuities with fordist value production, that does little to explain how these markets are affecting the relationship between labour, time and value. indeed their argument about the increasingly important role of financial markets finds its antecedent in weeks’s engagement with marx’s law of value (1982). weeks insisted on the latter’s historical specificity; at the same time he described it as a logic, process or a series of ‘abstract operative rules’ which comports the gradual monetisation of the inputs into production. the thrust of his argument is that this logic confronts producers with more monetary imperatives to meet, requiring them to minimise labour time as they compete with one another. although weeks does not focus on capital and share markets, the process he describes can be seen intensifying on financial markets because of the constant and instantaneous commensuration of value they allow (alessandrini, 2011). in other words, financial markets seem to point to a strengthening, rather than a weakening, of the law of value (as well as of the role of labour time) which requires much more careful exploration of the ways in which this process is made possible, including the institutional arrangements that continuously support it. the point is that the positioning of such a radical break with fordist value not only leaves these (and other) connections undertheorised but also makes the more challenging analysis of the relationship between labour and value (as articulated in labour of dionysus) devoid of theoretical and political import, that is the challenge to capitalist value through the instantiation of other processes of valorisation. this speaks directly to the second reason why i think the positioning of such a break is problematic and this is the fact that it undermines the important feminist work on value on which it relies.[footnoteref:4] indeed, the most interesting insights regarding the relationship between labour and value derive from the feminist work hardt and negri mention in passing. they acknowledge that certain lines of feminist enquiry and practice have brought into focus the different forms of ‘affective labour, caring labour and kin work that have been traditionally defined as women’s work’ so that ‘these studies have demonstrated the ways in which such forms of activity produce social networks and produce society itself’ (hardt and negri, 1995:9). however, with the exception of elson’s work which they explicitly refer to, they hardly explore the significance and implications of these studies. it is exactly this body of work that i want to focus on to show how, despite being relied upon, its radical potential has been cut short by positing a moment of rupture between the 1970s and 1980s. [4: i focus on this aspect of hardt and negri’s work because it speaks directly to the claims that ‘new communists’ make about immaterial labour and the commons and brings to full light the centrality of the category of value. this work has been the object of subsequent feminist critique, particularly in relation to the reduction of the vast spectrum of human and non human activities to the category of labour. however what makes their contribution important is their attempt to re-think the categories of classical political economy so as to challenge the unidirectional reading of the relationship between labour and value (the former always forming the basis of, and therefore determining, the latter).] immaterial labour in italian feminist debates in the early 1970s dalla costa, federici and fortunati started to assess the capacity of marxist concepts to explain women’s position within the capitalist system, focusing in particular on the distinction between productive and unproductive labour and that between material and immaterial production (dalla costa and james, 1972; dalla costa and fortunati, 1977; federici, 1980; fortunati, 1981).[footnoteref:5] while marx saw the domestic sphere as unproductive (that is, from the point of view of commodity production), they instead claimed that the production of goods and services, including prostitution, was a crucial stage in the production of surplus value: reproductive labour produced and reproduced the commodity most precious for capital, that is, labour power (fortunati, 2007:145). fortunati’s work in particular focused on the inadequacy of socially necessary labour time to provide the measure of value of a commodity. this was because socially necessary labour time does not take into account the time necessary for reproducing labour power which is not, in contrast to factory time, ‘easily’ calculable (1981:40, 81-84). thus, the separation of the process of production of commodities from that of reproduction, even though the two are indissolubly connected in producing value, is what allows capital to make huge money savings (ibid:82). [5: at issue was marx’s treatment of reproduction. for marx workers were productive, that is productive of surplus value and therefore capital, when they produced material wealth. the consequence of this was that those who produced immaterial wealth, such as reproductive workers, were considered unproductive. from this perspective reproductive work was reduced to the consumption of commodities the wage could afford and the work that went into their production so that no difference was made between commodity production and the production of the labour force (federici, 2010:1-20). federici has advanced several reasons why marx did not investigate further the role of reproductive work in the determination of value. for instance she points to the fact that until the 1870s, ‘consistently with a policy tending to the “unlimited extension of the working day” and the utmost compression of the cost of labor-power production, reproductive work was reduced to a minimum’. another reason might have been the difficulty that including it in productive labour would have posed to its measurement since it was not subject to monetary valuation (ibid:3).] the theoretical import of this work consisted of showing not only how reproductive labour produced ‘externalities’, to go back to hardt and negri’s argument about value becoming un-measurable (1995:154-55), but also why this labour took the form it did so as to reflect on the political consequences deriving from this (elson, 1979:123). the point was neither that of measuring these ‘externalities’ so to make sure that the (exchange) value of commodities reflected more accurately the (use) value of reproductive labour, for instance through more accurate accounting processes.[footnoteref:6] nor was it the socialisation of domestic labour through the development of social services and a more equal sharing of its burden as this would not have eliminated exploitation (i.e. the process through which surplus value is extracted): it would just have re-distributed it (fortunati, 1981:34). rather the point was to destroy these forms of labour as capitalist labour by creating the possibility for other processes of (non capitalist) valorisation to emerge, self-valorisation in the tradition of feminist autonomists. as fortunati puts it ‘[l]arge areas of domestic labor cannot be socialized or eliminated through the development of technology. they can and must be destroyed as capitalist labor and liberated to become a wealth of creativity... the reference here is to immaterial labor (such as affection, love, consolation and above all sex) which among other things constitutes an increasing part of domestic labor’ (1981:10). [6: other feminist political economists have since shown how accounting for the vast, albeit hidden, wealth produced by reproductive labour is important so as to show the latter’s ‘depletion’. for instance see rai, hoskyns and thomas’ work (2010).] now, the question of how to instil other processes of valorisation remains an open one and one which, as i will argue in the concluding section of this article, still confronts us today. however, already in the 1970s feminists had pointed to the fact that value is a collective undertaking that can be conceived of and measured in terms other than factory labour time. this is the first important insight deriving from this work. the second, which emerged by looking more closely at the many manifestations of immaterial labour, consisted of showing the problematic nature of sorting labour in either material or immaterial terms depending on whether it produced material or immaterial things: whilst it may be simple to make a theoretical distinction between immaterial and material labor, it is not so easy in everyday life. in practice, the two are actually closely intertwined. immaterial labor, as we have seen, often needs supports (tools, technologies) as a vehicle, well-grounded in the material. it needs to be performed in concrete contexts. but, above all, immaterial labor very often sets material labor in motion. showing one’s affection for a person means possibly setting off on a journey, buying a present or preparing a dinner, it means following an immaterial expression with concrete acts. (lorente, 2004 in fortunati, 2007:140) the fact that material and immaterial labour are distributed along a continuum of interaction whose boundaries cannot be easily demarcated led them to enquire further into the political work such boundaries were doing. indeed, rather than aiming at a more clear demarcation between the two spheres, they showed how such distinction naturalised an arbitrary division of labour between what ended up being considered productive and what did not. hence we come to the problematic nature of the current use by post-workerists of the concept of immaterial labour: by arguing that the old dichotomy between material and immaterial labour fails to grasp the new nature of (post-fordist) productive activity, they imply that the distinction existed earlier and the work of feminists, which as early as the 1970s had shown how these categories have always been arbitrary, is undermined. this is not just a matter of acknowledging someone else’s labour: these oppositions are transcended while, at the same time, being re-instated. this is clear in the distinction made by negri between the primary source of immaterial labour, the intellect, which he says in kairos, alma venus and multitudo, has acceded to ‘the status of sole producer of value’ (2003:227), and, as he and hardt put it in empire, the other face of immaterial labour which is the ‘affective labour of human contact and interaction’ (2000:290-92).[footnoteref:7] hardt and negri point to the fact that an understanding of ‘affective’ labour must begin from women’s work. however as fortunati has argued, it is not at all clear how they conceptualise ‘affects’ and in what kind of social relationships they see ‘affects’ being produced and consumed, with the consequence that women risk being reduced to the body once again (2007:147). similarly federici argues that the way in which ‘affective labour’ appears in their work risks stripping the feminist analysis of its demystifying power. it suggests that reproducing people is a matter of ‘emotions’ or ‘feelings’ while the import of the feminist work on the social division of labour, the role of gender hierarchies, and the way in which the wage has been employed to mobilise women’s reproductive work under capitalism gets lost ‘under the label of “affective labor”. that this feminist analysis is ignored in the work of negri and hardt confirms my suspicions that this theory expresses the interests of a select group of workers, even though it presumes to speak to all workers, all merged in the great caldron of the multitude’ (federici, 2008:5). [7: this is something virno, another post-workerist, re-affirms with the primacy of language and the intellect as the generic faculties of the species (2004).] indeed for hardt and negri the immaterial worker par excellence tends to be the cognitive labourer working in fashion, design, cybernetics, marketing, and research and development, while flight attendants expected to smile at customers are considered emblematic of ‘affective’ labourers. aside from the position of the ‘affective’ worker within the ‘cognitive’ workforce, their argument about the hegemonic role of the immaterial worker does not take into account the implications deriving from the contemporaneous existence of ‘labour intensive’ and ‘knowledge intensive sectors’, within and across countries (caffentzis, 1992). thus, by positing the immaterial worker as paradigmatic of the shift to post-fordism, the arrangements that constantly impose a separation between material and immaterial production are not called into question. fortunati (2003) has shown how these arrangements attempt to impose an imperial division of labour between the mind of the service economy, supposed to lead from the north because of its being rich in capital, particularly human capital, technology and know-how, and the body of the manufacturing economy supposed to develop in the south because of its being ‘naturally’ endowed with raw materials and labour. the same logic can be seen underlying current european arrangements that aim to separate the mind of finance, which needs to be supported because productive and competitive, from the body of a labouring population that can be left to bleed through cuts because corrupt and/or unproductive. and this is exactly the point: by asserting a moment of radical change that has brought about the hegemony of the immaterial worker, these categories are in the end retained and what feminists have started in the 1970s, the process of questioning how they are produced and the kind of power effects they generate, gets interrupted. the consequence is that the many complex and ever changing connections between labour and value that make up our global economy are not attended to and their power effects remain unchallenged. recognising the importance of these connections does not mean that nothing has changed since the 1970s of course. haraway in the 1980s was observing the way in which various technologies were allowing forms of domestic labour to permeate society at large (1985:65-108) while hochschild (1983) used the category of ‘emotional labour’ to look at the strategic management of emotions for social effect as an increasingly everyday labour practice. however my point is that tracing these connections and the conditions for their possibility is a much more difficult and laborious process than positing a rupture and the advent of something radically new. put simply, it is much more fruitful, although less glamorous, to ask how these categories are constantly produced, what kind of arrangements sustain them and which ones might help in undoing them. this questioning is for instance part of the feminist debate on precarity that is currently going on italy. in a 2007 special issue of feminist review, a self defined younger generation of feminists started to reflect on the limits and potential of the concept of precarity or precariousness so as to make sense of and deal with, among other things, the phenomenon often described as the ‘feminisation of labour’. this is the tendency of ‘the current organizational model of work – insecure, adaptable, spasmodic, nomadic’ to model itself on the historical modality of female work (morini, 2007:48). now precariousness is seen by some feminists as problematic because inflexible but it is also viewed as the direct result of feminists’ demands for freedom from the house, family and work. ‘inflexible flexibility’ as morini puts it, can be seen as the response of capital to the general demands by workers based on the ‘refusal to work’ so as to regain control over time. as she puts it ‘[p]ost-fordist production functioned as social and cultural criticism of the fordist model of the 1970s... today, [however], the reality with which we are faced… is not configured as a form of true flexibility but presents itself rather as a form of a growing link between existence and intelligence at work (ibid:48). while the inflexibility of today’s precariousness is condemned, its potential for liberating women from wage labour is celebrated: morini, for instance, points to the fact that in the few empirical studies that have been conducted, women do not seem to be concerned with the lack of permanent employment or open ended contracts but mainly with income. the issue for her becomes one of achieving more freedom with less insecurity (ibid:52-56). fantone, however, reflects on the fact that the new subjectivity of the ‘precari’, which morini sees as made of ‘existence and intelligence at work’, is contained within specific historic boundaries that need to be interrogated. for instance she notes how the movement originated from mainly urban areas in the north of italy where there is comparatively a low percentage of unemployment and a higher middle-class population. however, precarity has been a constant characteristic of life ‘in southern italy for many generations of women, taking the form of submerged labour with no contract, black market and illegal economies (where there is no safety and rights), family self-exploitation, characterised by no clear division between work and house chores, and informal hiring practices through familial connections that have no long term guarantee’ (2007:10). she also notes how the majority of today’s domestic workers in italy are ‘poorly paid women coming from previously colonised areas such as the philippines and somalia and more recently poland and romania’ (ibid). this, she argues, does not prevent the possibility of a feminist politics in relation to precarity but requires a shift ‘to a more complex political analysis that can address gender and reproduction, citizenship and social welfare, immigration and de-industrialisation at the same time’ (ibid:9-10). fantone’s contribution brings us back to the argument made by earlier feminist work, that is the need to be more attentive to the connections between labour and value, especially when at issue is the kind of arrangements we are advocating: when we talk of the feminisation of the economy, referring mainly to the service economies of western europe,[footnoteref:8] what forms of labour are we valorising and which ones are we devalorising, both within and between countries? and what happens when this ‘freedom’ and ‘autonomy’ comes at the expense of some other women and men’s ‘freedom’ and ‘autonomy’? when ‘flexicurity’, a word which is now part of the lexicon of the eu, is argued for because it gives us freedom from the house and the family, who is caring for reproduction? [8: this of course is not limited to europe. see for instance the special issue of the canadian journal of women and the law on the regulation of domestic workers, ‘regulating decent work for domestic workers’ 23:1 (2011) cjwl. ] these are some of the limits of a feminist politics that does not aim to trace the various connections between labour and value and such limitation is what the work i have been referring to brings to light as it attempts to instantiate alternative processes of valorisation. this is why this work has argued that it makes sense to talk about social reproduction, including care, as a terrain of struggle, a struggle over those arrangements that might be able to inject different meanings to our living together. as picchio argues this is not a matter of keeping the economic system, and our conceptions of it, as it is, demanding that it only takes into account social issues, starting with the ‘woman issue’. it is rather a question of (re)placing at the heart of political economy the concepts of bodies, minds and desires (2009:29). the task is therefore that of showing the theoretical and political contribution the feminist work on value has made and continues to make to our understanding of political economy. the next section takes up this task, which acquires renewed significance in the age of ‘sound science’ and austerity, by reflecting on the importance of the feminist challenges to capitalist value in the context of the commons debate. this brings back the issue of labour and its organisation as well as the vexed question of the possibility of a feminist engagement with the state. aiming to open up this question to more debate, i conclude by considering the potential of the recent call from feminist economists for the state to become a permanent guarantor of jobs. alternative valorisations the feminist debate on value has made an important contribution in conceiving of non-capitalist processes of valorisation. i want to suggest that one way of engaging with the commons consists exactly of carrying on with this debate and thinking about what kinds of processes might bring together what the social division of labour in capitalism has kept separate. this separation has taken place, as federici puts it, by promoting cooperation at the point of production and separation and atomisation at the point of reproduction through the house and the family (2004:24-25). the recombining she talks about is the process of making a common world, a process of becoming. it is certainly the case that the commons have never been free of power and institutional arrangements, as desai points out (2011:215), although federici shows how arrangements under serfdom were by no means more intrusive than those regulating ‘free’ women under capitalism (2004:25). however if the commons is conceived of as the terrain on which the production and reproduction of human and non-human life takes place, which is never free of power and its arrangements, it also becomes the terrain on which to promote, and struggle for, different processes of valorisation. latour and lepinay (2010:69) have recently put to us that the problem with current understandings of political economy is the belief in an economic order governed by natural laws that exist ‘out there’ and that society must discover and implement (for instance, the law of demand and offer, the law of equilibrium, and more recently the law of sound finance on which the imperative of deficit reduction is based). for them, recuperating political economy as the nexus between economy and society, two realms which we have kept separate until now, requires that we see the economy as that which is constantly constructed without any divine hand, whether the invisible hand of the market or the visible one of the state. this means getting more immersed in, and taking full charge of, the economy rather than distancing ourselves and looking for foundations in the economic order (ibid:72-74). this is exactly the contribution that feminist autonomists have made in the 1970s by showing, through their work on reproductive labour, how ‘the law of value’ has never been natural. this was not to say that it does not exist or does not produce real effects: its constant re-enactment makes it a powerful logic (see also rubin, 1972; weeks, 1982). it was rather to point to the modality through which value is actively made and measured under capitalism so as to pose anew the problem of its construction. in other words recognising that the way in which capitalist value is produced and determined is a process rather than an imperative or irrefutable logic meant confronting its contingency and contestability, and therefore beginning to explore the possibility of alternative processes of valorisation. to this end they re-worked the category of self valorisation: whereas for marx it denoted all that which is involved in the expanded reproduction of capital, they used it to indicate those labour activities which do not simply react to capital but are able to exceed it through creativity and invention (dalla costa, 1972). in their quest for the kinds of arrangements that might enable these processes of valorisation to emerge, they engaged with gabriel tarde (1902) whose work on value had argued that classical political economy ‘was at fault for the omission of affections, and especially of desire, in analyses of valorization’ (fortunati, 2007:142). picchio’s work in particular showed how, with and especially after smith, the vast spectrum of desires, passions and interests that animate human (and non-human) interaction has been reduced to only one, that is the maximisation of material wealth. once this had been posited as the principal means and objective of our economic system, a specific division of labour between production and reproduction was established to serve this purpose (1992, 2009). now it might be, as adkins (2009) has recently put, that the sexual division of labour on which the capitalist system has functioned in the past is becoming increasingly irrelevant, although the effects on women of the current trend towards the re-privatisation of the reproductive sphere complicates this assumption.[footnoteref:9] however, even as the sexual division of labour cannot be presumed and the various gender articulations that make up the social reproductive sphere need to be carefully analysed, this does not mean that the separation between production and reproduction under capitalism has become redundant. [9: for instance, it is quite interesting to see how the family tends to remain gendered even as it goes global. see safri and graham (2010). ] indeed, the task of recombining or bringing together the two acquires particular relevance today given the ferocious attack on social reproduction taking place in europe as elsewhere. the cuts to social spending are, certainly among other things, a feminist issue. this is not only because, as it has happened in the past (mcintosh, 1978; barrett, 1980) and is likely to happen now, they intervene in very intrusive ways on women’s lives, attempting to define their ‘identity’ once again.[footnoteref:10] they are a feminist issue because they remove us further from the process of bringing together production and reproduction, economy and society. now, the question of how we think of alternative processes of valorisation in this context, and the kind of arrangements that might sustain them, brings us back to the point desai makes at the end of her article when she talks about the difference between reforms and reformism: ‘the latter may or may not be part of fundamental critiques of capitalism (or patriarchy, racism or imperialism) but that would not, and historically has not, prevented a wide range of political perspectives and forces from cooperating in them’ (2011:221). more importantly, she argues, what makes a demand a reform or revolutionary depends on the historical conjuncture: ‘a modest demand for, say, cheap bread, might turn out to be revolutionary if the ruling order was unable or unwilling to fulfil it, and the political energy and organization existed behind it to inspire people to believe that if it is not going to be fulfilled it was time for people to remove the ruling order and fulfil it for themselves, and enable them to do so’ (ibid). [10: the work of the uk women’s budget group (wbg) has shown how the likely outcome is going to be the restoration of the male breadwinner model as the cuts to public services and the welfare budget will disproportionately affect women’s income, jobs and the public services they use. with regard to their income, they point to the fact that child benefit is paid almost 100% to women; also 53% of housing benefit claimants are single women. both benefits have been cut significantly in real terms and eligibility has been tightened. as for women’s jobs the cuts will lead to hundreds of thousands of women losing their job. 53% of the jobs in the public sector services that have not been protected from the cuts are held by women and the pay and conditions of employment of all public sectors workers, 65% of whom are women, are likely to deteriorate; finally taking into account cuts to public services, the groups that that ‘will suffer the greatest reduction in their standard of living are lone parents and single pensioners, the majority of whom are women’; in particular lone parents will lose services worth 18.5% and female singles pensioners services worth 12% of their respective incomes; and overall single women will lose services worth 60% more than single men will lose as proportions of their respective incomes, and nearly three times those lost by couples (wbg, 2010:2). see also the more recent findings in the 2011 report (wbg, 2001). ] the question this raises and with which i want to end, but only as a way of opening it up to more debate, is whether the state can be considered an arena, although certainly not the only one, of feminist political change. in the 1970s, feminist autonomists refused to place reformist demands on the state, particularly in relation to the socialisation of domestic labour through the development of social services that would have allowed women to work outside the house. they saw the welfare state as the protector and guarantor of the capitalist division of labour and while they strategically supported the wages for housework initiative as well as social protection and benefits, the focus was on the collectivisation of social reproduction through the creation of self-managed and alternative social services in the areas of health, birth control, abortion and the prevention of domestic violence (see dalla costa, 2002; fortunati, 2007:146; federici, 2008:9). the reason for such scepticism has to do with the tension between acknowledging on the one hand that the state is not a monolithic entity but an assemblage of social powers and, as brown has put it, recognising on the other that these powers remain masculinist through and through (brown, 1995).[footnoteref:11] brown is critical of positions that maintain the radical potential inherent in women’s involvement with the state because these presuppose a transcendental subject who simply moves from isolated to collectivised conditions as opposed to a subject who is produced by these respective conditions: ‘[t]his is because the state does not simply address private needs or issues but also configures, administers and actively produces them ...[so that] what is liberated from the private sphere may be then colonised and administered by one or more dimensions of masculinist state power’ (ibid:195). [11: brown traces these powers, which she conceives of broadly as the power to describe and run the world and the power of access to women, in four dimensions of the state: the liberal or constitutional, the capitalist, the prerogative and the bureaucratic dimensions. ] however, she also acknowledges that these powers have different rationalities, produce different effects and at times are in conflict with one another so one might assume that, by understanding how these powers operate, it might be possible to intervene in them. let us take for instance the capitalist dimension of masculinist power she examines. this is rooted in the distinction between productive and unproductive labour which, brown argues, entails women’s subordination on two levels: ‘first women supply unremunerated reproductive labour and because it is unremunerated and sequestered from wage work, most women are dependent upon men or the state for survival when they are engaged in it. second women serve as a reserve army of low wage labour and easily retained as such because of the reproductive work that interrupts their prospects for a more competitive status in the labour force’ (ibid:185). the state perpetuates these conditions in many different ways, including private property rights, regulation of marriage, sexuality, contraception and abortion and last but not least through gendered welfare, unemployment benefits and the absence of quality public care (ibid:186). now, linking this to the previous discussion about the arrangements that might enable other processes of valorisation to emerge, what would a meaningful or strategic intervention at this level look like? i am asking this question as feminist political economists are exploring the possibility of joining the call of post-keynesians for the state to become a permanent guarantor of jobs for a socially established wage and benefits (jennings, 1992; todorova, 2009). this is a different proposal from the post-war policies which aimed to guarantee full employment, particularly at times of crisis, by promoting government spending ‘on something or other no matter what’ (robinson, 1972:6). as joan robinson aptly noted in 1972 this interpretation of keynesian theory reduced employment to the act of digging and filling holes at best – but most often than not it meant expanding and strengthening the military establishment while the question of what employment, and our investment in the economy, should be for was hardly ever asked. the employer of last resort (elr) would instead be a permanent program according to which the state invests in sectors where private companies do not because it is unprofitable and this applies to vast segments of the market, so to speak, which are currently left out as pecuniary considerations are the determining factor in investment decisions. among these, kaboub mentions care for elderly members of society, public school classroom assistants, low-income housing restoration engineers, environmental safety monitors, day care assistants for elr workers, community and cultural historians, artists and musicians, and these are only examples with which to start (2007). there are different ways in which such a project appeals to feminist economists: it aims to permanently eliminate the reserve army of labour; it provides an effective floor for benefits and wages; and importantly it instils values other than the profit motive in investment decisions (i.e. what makes an investment profitable). so it might go a long way to address economic and social uncertainty and to challenge socially created scarcity. the latter is particularly important at a time when not only has unemployment reached a 17-year high in the uk (ons, 2011) but the ‘law’ of sound science on which the imperatives of deficit reduction and austerity are predicated remains uncontested throughout europe, with the only visible alternatives being represented by either a strengthened neo-liberal project or a return of economic nationalisms. in this respect, the elr challenges the very premise on which austerity measures are being imposed. in addition to this, the appeal of the program consists of the fact that it offers an opportunity to gradually redefine the meaning of work as well as that of production, therefore bringing to the fore robinson’s important question of what employment should be for. participating in the job design of the program might indeed offer the opportunity to start discussing what kind of activities and sectors we consider ‘worth’ investing in. for instance, by making apparent that care work is an integral part of the sphere of production, the program can affect the gender norms that are at the basis of the distinction between work and leisure and public (market) and private (non market) economic activities. these are norms that contribute to much occupational segregation and discrimination in terms of pay and benefits (jennings 1992; todorova, 2009:14). besides encouraging the participation of men in care activities, the design of the program can also contribute to making a whole range of valuable non-performed, underperformed or unremunerated activities emerge as remunerated ‘jobs’. thus, it goes beyond incorporating caring labour within the creation of new jobs: this aspect is certainly important in challenging the distinction between productive (paid) and unproductive (unpaid) care labour and therefore the distinction between production and reproduction. however at issue is the whole spectrum of activities encompassing the broad terrain on which the re-production of life is made possible, from child care to health care, from care for the elderly to environmental care, from restoration to engineering, from transport to housing, from manufacture to finance and so on. thus, intervening in the job design of the program has the potential of gradually eroding the boundaries between production and reproduction as well as injecting different systems of (non-pecuniary) valuation in investment decisions, thereby generating other processes of valorisation. conclusions it is clear this program remains an institution of wage labour: it is indeed, in the eyes of post-keynesians, the only way for capitalism to survive by proposing a new deal with labour. this would be enough perhaps to guard us against engaging with such kind of intervention. yet, is this the full story? is the effect of an engagement at this level only the production of more disciplined and docile workers? i wonder whether this position does not assume the same transcendental subject brown identifies in uncritical discourses supportive of women’s engagement with the state. in other words, unless we assume we exist outside the capitalist relations that make us, then we need to take into account the complexity of a process which, although initially based on wage labour also presents the opportunity to affect the concept of ‘work’ and productive activity. the consideration of such complexity is what distinguishes the elr program from the post-workerists’ call, including hardt and negri’s, for the establishment a citizenship income decoupled from wage labour. the citizenship income movement draws on the work of scholars such as gorz who have posited the need to move away from an already defunct wage society living off the ‘phantom’ of work (1999:58). articulating social relations at the level of impersonal objective necessity,[footnoteref:12] this is a society which has made people dependent on wages for their survival and social appreciation (the ideology of work as value) while simultaneously denying access to work. for gorz it makes no sense to sustain a system that ‘ensures there is less and less work and wages for everyone as the essential source of autonomy, identity and fulfilment for all’ (ibid:46). this, he argues, becomes apparent when one considers that ‘post-fordist industry is the spearhead of a thoroughgoing transformation which is abolishing work, abolishing the wage relation and tending to reduce the proportion of the working population who carry out the whole of material production to 2 percent’ (ibid:46). [12: as postone puts it ‘a characteristic of capitalism is that its essential social relations are social in a peculiar manner. they exist not as overt interpersonal relationships but as quasi-independent set of structures that are opposed to individuals, a sphere of impersonal “objective” necessity and “objective dependence”’ (1996:121). this is a system within which nobody consumes what they produce; however, one’s labour (through the wage) is used as a means to obtain the products of others.] besides the question of how such a figure is arrived at, the point is that this argument risks reintroducing the problematic distinction between material and immaterial production, as well as obfuscating the connections that make up our world economy, both problems which this article has identified in relation to the historical rupture posited by post-workerists and which the feminist work on value has challenged. this does not mean the concerns expressed by this body of work, particularly in relation to the abstraction and insecurity wage-based societies perpetuate, are not important. and the argument gorz makes, that is that efforts should concentrate on ‘distributing all the socially necessary work and socially produced wealth’ so that ‘people will be able to divide their lives between a wide range of activities which will have neither payment nor profitability as their necessary condition or goal’ (ibid:73), has much in common with the feminist project of generating alternative processes of valorisation as envisaged by the social provisioning approach to economics. gorz is aware of the need for a ‘political break’: however, it remains unclear how this is to be achieved besides the claim that strategies should not involve the creation of more ‘work’. the elr instead retains the institution of wage labour but demands that the state immediately becomes a permanent guarantor of jobs for a socially desirable income: by doing so, it begins to challenge socially created scarcity and reduces uncertainty, both things on which the wage society bases its ideological grip and power. at the same time, by intervening on the job design of the program, it has also the potential of gradually changing the meaning of ‘work’ as well as that of productive activity. thus, while it starts by retaining ‘work’, it offers in the process the opportunity to transform its meaning and delink production from the current system of (pecuniary) valuation that regulates investment decisions. these are important decisions about how we organise our social provisioning, our collective living together, and ultimately our commons. certainly much more work is needed to explore further the potential as well as the limitations of such a program. this is indeed a complex process: it is based on two of the most pernicious forms of modern oppression, that is the state and wage labour; yet it offers the opportunity to confront, while affecting, their power. the feminist work on labour and value explored in this article opens up to considering exactly such complexity, such ‘stateness’, rather that closing it down with the dualism of either engaging or rejecting any engagement with the state. the point is therefore not to consider such engagements in opposition but in a process of constant interaction with the diverse practices of self-valorisation feminist autonomists have been promoting since the 1970s, mindful of the fact that at stake for both is the generation of alternative processes of valorisation. it might seem contradictory to conceive of a ‘counter-hegemonic’ strategy that aims at instantiating a single project such as the elr program on a par with ‘anti-hegemonic’ strategies of self-valorisation that reject unity and promote more fragmented challenges to the prevailing system of values. this however does not need to be the case: indeed ‘while counter-hegemonic projects encourage the transformation of structures on the basis of an aspirational future, anti-hegemony reminds us that such a future can only remain a strategic narrative’ (cooper, 1995:141). the question is whether, and how, we can simultaneously support ‘the establishment of a new commonsense and its contestation’ (ibid). acknowledgements: many thanks to stacy douglas for organising the workshop on ‘diminishing returns? feminist engagements with the return to the commons’ held at the kent centre for law, gender and sexuality in march 2011. i have greatly benefited from the stimulating discussions with radhika desai and the other workshop participants. i am grateful to kate bedford for her generous engagement with the paper and her thought provoking comments and questions, particularly in relation to the state. i also wish to thank emily grabham, rosemary hunter and the two anonymous referees of feminists@law for the very helpful comments on earlier drafts of this article. bibliography: adkins, l. ‘feminism after measure’ (2009) 10:3 feminist theory, 323-339. alessandrini, d. ‘regulating financial derivatives? risks, contested values and uncertain futures’ (2011) 20:4 social and legal studies, 1-22. barrett, m. 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(1982) capital and exploitation (princeton: princeton university press). __________________________________________________________________________________ __________________________________________________________________________________ hunter, alessandrini, williams editorial __________________________________________________________________________________ feminists@law vol 2, no 2 (2012) editorial: why we oppose gold open access introduction the report of the uk working group on expanding access to published research findings, accessibility, sustainability, excellence: how to expand access to research publications (the finch report) was published in june 2012. the report focuses on the publication of articles in peer reviewed journals. it recommends a move to open access publishing in order to make the results of research undertaken in the uk more widely available to academic researchers, public sector and industry research users, and the general public. the model of open access publishing it advocates is so-called ‘gold open access’, involving the payment of an article processing/publishing charge (apc) by authors. in this way, journal publishers will continue to cover their costs and articles will be free to all at the point of consumption. the only issue to be addressed is the cost of apcs, and the report makes various recommendations as to how this may be covered by government, universities and research councils, especially during what is likely to be a substantial period of transition from the current situation in which journals are largely funded by subscriptions. we applaud and endorse the goal of making research more widely available by means of open access publishing. we agree with the working group that ‘the principle that results of research that has been publicly funded should be freely accessible in the public domain is a compelling one, and fundamentally unanswerable’ (finch report, p. 15). we are, however, strongly opposed to the recommendation that the model to be adopted should be ‘gold open access’ involving the payment of apcs. critiques of ‘gold open access’ support for gold open access as opposed to other open access models is not argued in the report. it is simply taken to be the norm for open access publishing, apparently based on the fact that this is the model which has been adopted by the big open access publishers such as biomedcentral and plos, and by commercial publishers, including in ‘hybrid’ journals (funded primarily by subscriptions but offering authors an open access option on payment of an apc) (pp. 32-33). however, the field of open access can hardly be described as mature, and the fact that apcs are charged by the major open access publishers may simply reflect the model that is most feasible under present market conditions, that most closely resembles the subscription model, and that best suits a narrow group of market actors. to opt for this as the long-term position would appear to be a premature judgment. our concerns about ‘gold open access’ centre on the fact that it provides only a limited version of open access, focusing on access for consumers but not for authors. we believe that while the current subscription-based system creates barriers for consumers while being generally open to authors, ‘gold open access’ will simply reverse this position, removing barriers for consumers but creating them for authors. these barriers are likely to include the following: · while the report pays lip service to the notion of making the world’s research more accessible across the uk (and presumably the rest of the world), it does not address the severe disadvantage overseas authors, particularly those from the global south, are likely to experience faced with the demand to pay uk-level apcs, whether because their institution would not be prepared to make or would not be able to afford such payments. for example, in its first three issues, feminists@law has published work from researchers based in south africa, ghana, hungary, costa rica, ecuador and colombia, as well as australia, sweden, italy and finland, none of whom would have had the capacity to pay an apc. publishing these authors makes their work available in the uk and to a global audience, and also guarantees that uk work published alongside it is widely read overseas. these benefits would not be available under a ‘gold open access’ model. the proposals in the report for research council funding to cover apcs would apply only to (some) uk authors. similarly, the stated success criteria of ‘costs and affordability for research funders’ (p. 62) and ‘costs and affordability to universities’ (p. 63) are discussed only in terms of uk research funders and universities. the uk-centrism of the report is a serious shortcoming. · even within the uk, certain categories of authors are likely to be disadvantaged. these include researchers with no institutional affiliation (mentioned briefly at p. 71), postgraduate students (for whom funding to cover apcs may not be available, thereby inhibiting their ability to enter the publication system), early career researchers (for whom apcs may represent a further psychological and/or material barrier to getting published), and researchers whose work is not funded by research council grants (who may be faced with increasing pressure to obtain grant funding in order to fund their publications). · more generally, less well-endowed universities are likely to be able to offer less to their staff in terms of support for apcs, thus inhibiting their ability to publish. the report comments on current differential levels of access to subscription journals between well-endowed, research-led institutions and smaller, less research-intensive institutions without the resources to purchase access to large bundles of titles through big deals (p. 39). it fails to acknowledge, however, the very real likelihood that under the ‘gold open access’ model, these differentials would simply be reproduced in a different form, disadvantaging authors rather than readers from those universities. · the report states at several points (pp. 9, 11, 7, 107-108) that universities will need to establish policies and procedures concerning how much funding to provide for apcs, how those funds are to be administered, and how judgments will be made about publications in journals with different levels of apcs, and publications considered to be ‘not of the highest quality’. despite exhortations that these policies should be developed ‘in consultation with staff’ and ‘in line with the principles of academic freedom’, university staff should rightly be anxious about this prospect. there is much evidence to suggest that mechanisms for the internal distribution of funding provide opportunities for various forms of discrimination, can be and are used by management as a means of disciplining staff, and are vulnerable to retrenchment in times of funding constraint. as the report acknowledges, policies will also be needed in relation to collaborative work between researchers in different uk institutions, and collaborative work with overseas authors. the transaction costs for universities of devising and implementing these arrangements are likely to be very significant, but are mentioned only in passing in the report (p. 108) and are not factored into the costings provided. further, while the report envisages price competition between journals with regard to apcs (p. 11), this eventuality seems unlikely. as has been the experience with university fees, it is more likely that a system will develop in which higher cost equates with greater prestige. indeed, there would be nothing to stop the most prestigious and highly sought after journals from exploiting their market position to raise their apcs, similar to the way in which the cost of journal subscription packages has increased under the current system. in addition, learned societies have expressed considerable alarm at the prospect of a shift to ‘gold open access’. many societies derive subscription income from journals which sustains a range of important activities within the academic community. members also see journal access as a valuable benefit, and this helps to sustain membership levels. under a ‘gold open access’ regime, journal access would no longer constitute a membership benefit and correspondingly, membership numbers may decrease (thereby reducing revenues from membership fees as well). moreover, the level of apcs that would need to be charged in order to sustain the current level of activities is likely to be prohibitive. thus ‘gold open access’ would threaten the viability both of these journals and of the learned societies they support. this issue is raised several times in the report (pp. 36, 65, 93, 110), but beyond asserting that it is important for learned societies to be able to maintain their publishing programmes and associated activities, no particular solution is provided, beyond saying that societies will need to adjust their business models. finally, one other group of journals which would be damaged by gold open access also deserves mention. these are journals which are published by commercial publishers, but where the publishers provide substantial funding to the journal editorial board derived from subscription income (in practice, from consortia deals), and the editorial board uses these funds to support a range of academic activities. this model is prominent, for example, in the law discipline, where journals such as the modern law review, journal of law and society and social and legal studies use their income to make small research grants, fund seminars and workshops, contribute to the cost of learned society conferences, and provide bursaries and scholarships for postgraduate students. journals in this category are not mentioned at all in the report, but would be in a similar position to learned societies in being likely to lose some proportion of their income, to the detriment of the various academic activities they currently support. other open access models the perceived need to move from funding journals via subscriptions to funding them via apcs takes for granted the cost of journal production and the profits flowing to commercial publishers. however, it would surely be more in the interests of authors (in the uk and internationally), consumers, universities and research funders to move to a model in which publication costs were reduced to the extent that neither journal subscriptions nor apcs were required to be paid. publication costs are high in the case of print journals and specially constructed internet platforms, and so are marketing costs where this is necessary in order to sell subscriptions. these costs are reduced dramatically, however, when publication is open access, online and uses open source software such as the open journal system (ojs), which is capable of maintaining equally high standards of presentation, discoverability and navigation. they are further reduced in the absence of editorial fees. it is notable that even under the current subscription system the crucial work of peer review is unremunerated, as is, in practice, much journal editorial work undertaken by academics. there are two available models for achieving such cost reductions. one is so-called ‘green open access’ which refers to the use of institutional repositories for staff research publications. the drawback of this model is that work published in repositories is not subject to peer review, and thus is not quality controlled in the same way as journal publication. thus, while repositories may operate as a valuable supplement to journal publishing, they cannot substitute for it. the other model does not yet have a name – but we may call it ‘platinum open access’ or ‘universal open access’. under this model, journals (such as this one) are online, open access, using open source software, hosted by universities, and run by volunteer academic labour, with reviewing and editing tasks being institutionally acknowledged and rewarded in other ways. they offer true open access, i.e. are free for consumers to read (globally) and for authors to enter (globally). the relatively low cost of server space is borne by the host institution – at considerably less cost than either journal subscriptions or apcs. this is the fastest growing sector of open access publishing. indeed, according to the working group’s report, ‘most’ journals listed in the directory of open access journals ‘are relatively new journals which have been open access from the start, many of them founded by individual scholars on tailor-made platforms [the report does not mention open source journal software], often with a business model based on voluntary labour and the use of a university’s web server free of charge’ (p. 32). in our view, this is the model that requires further investment and development. the ‘platinum/universal open access’ model would not directly address the position of learned societies reliant on subscription income. it is suggested that the valuable work undertaken by learned societies would best be addressed by direct funding of the societies by the research councils and/or by hefce, including the cost of server space and, if necessary, editorial fees to support continued journal production. this would enable their journals to become open access without sacrificing the benefits currently derived from them (including, for members, the activities they sustain rather than access to the journal itself), and at considerably less cost than that required to fund apcs throughout the uk higher education sector. in relation to non-learned society journals which also currently use subscription income for the benefit of the academic community, possible models for ongoing support of those activities might include: · contributions from higher education institutions, out of savings from library journal subscription budgets, and/or · a royalty regime for reproduction of journal content in study packs, textbooks, and any other commercial use, and/or · advertising attached to the publishing platform (such as the array of sidebar advertising and click through schemes which currently fund so much of the ‘free’ internet). the way forward the uk government has already announced that it has accepted the finch report recommendations. rcuk has adopted a policy requiring all publications derived from research council grants to be published in an open access format from 1 april 2013, and will be making block grants to universities to fund apcs, based on each institution’s research council grant income. the european research council has made a similar announcement to take effect from 2014. hefce has also indicated that it may mandate open access publication as a condition of entry to future ref exercises, and will be launching a consultation this autumn. rather than accepting the notion that open access can only be gold or green, now is a crucial time to promote a different model. ‘gold open access’ can be challenged by the development of ‘platinum/universal open access’ publishing, and universities can actively promote this model and argue for its virtues. these include much lower transition costs in the short to medium term, considerable cost savings in the longer term, the avoidance of fraught negotiations over apc policies, greater access for both readers and authors, and a solution that is capable of working effectively on a global level. __________________________________________________________________________________ 6 __________________________________________________________________________________ 1 grabham the strange temporalities of work-life balance law ______________________________________________________________________________ feminists@law vol 4, no 1 (2014) ______________________________________________________________________________ the strange temporalities of work-life balance law emily grabham[footnoteref:1]* [1: * senior lecturer in law, kent law school, university of kent, uk, email e.grabham@kent.ac.uk. this is a revised and shortened version of an article due to be published in 2014 as part of a special issue of australian feminist studies entitled ‘gender and labour in new times’, co-edited by lisa adkins and maryanne dever. many thanks to lisa adkins, donatella alessandrini, kate bedford, maryanne dever, and judy fudge for wonderful engagement and feedback. thank you also very much to the participants of the elusive equalities conference (oxford, 2012), the gender and labour in new times workshop (sydney, december 2012), the gendering labour law workshop (kent) and the gender and labour law stream of the labour law research network (barcelona) (both june 2013) for engaging and extremely useful feedback. any errors remain my own.] introduction this research paper is part of a broader project on law and time. i am in the midst of studying the time related concepts and assumptions that structure some of the key initiatives in the area of equalities regulation in the uk over the past two decades. time fulfils certain legal and political functions in equalities law and policy, establishing the parameters through which a person might claim a legal identity in order to argue a discrimination case, for example, or providing a paradigm for thinking about the allocation of care responsibilities. time-related concepts put limits on what types of law people can use and what people need to do to access rights. for these, and many other reasons, studying the temporal assumptions that structure equality laws provides rich material for understanding what we think these laws can and should do. my book-in-progress, tentatively entitled doing things with time: legal temporalities in equality projects, focuses on specific equality projects as instances of temporalised law and politics – the unpaid care burden, for example, constituted and regulated as a means of balancing time. yet, far from merely tracing how legal concepts and communities symbolise time, or how they use temporal concepts in their world-making features, i am also interested in the materialisation of time and interconnections between time, matter, form and objects in the making of law. key temporalities within work-life balance law – balance, equilibrium, and flexibility, for example – therefore become amenable to inquiry through the actions of documents and documentary practices, administrative forms, and the form of law itself in materialising time alongside and in relationship with human legal subjects. as michel serres puts it: ‘time doesn’t flow; it percolates’ (latour and serres 1995, 58). with this in mind, we might ask: how has work-life balance percolated? what role have human and non-human legal actors played in confabulating this temporal form? work-life balance has been materialised in a variety of different ways, for inconsistent and sometimes incommensurable reasons, and, many times, outside of the rational, agentic actions of sovereign legal subjects. as a form of legal (and policy) temporality, it has emerged, i argue, through specific relationships between actors (human and non-human) of different types at a range of levels. as such, the intellectual or political purchase of work-life balance, its effectiveness as a response (if that is what it is) to questions of social reproduction and gendered dynamics of work, and, more importantly perhaps, its epistemological or heuristic status, must be questioned a lot more closely as a matter of disaggregated or provisional networked relationships, connections, and agencies, rather than through the paradigm of coherent (if not wholly effective) policy and legal reform that dominates much of the literature to date. analysing the strange temporalities of work-life balance provides a way of doing this. it provides us with a means to look both at and past balance, to take balance at its word, examine its form, and watch how it circulates, but also to be aware of the strange currents and ripples it creates. as i hope to demonstrate in this paper, at the heart of present regulatory models and policy concepts is a set of understandings of time, and specifically temporal equilibrium, that have significant effects, and which are materialised in specific ways. as a feminist labour lawyer, i am concerned with analysing the technical legal measures in this area for the social relations that they assume and help to constitute. even the most mundane details of work-life balance laws and policies present rich material for understanding bureaucratic conceptualisations of gender, time and value. if, as lisa adkins argues, temporal relations now provide the key ground for feminist theorising (adkins 2009), our attention should turn to what types of temporality structure legal and policy engagements with women's working lives. legal temporalities cultural theorist elizabeth freeman defines as ‘temporal mechanisms' those social and political processes that reproduce norms of the family, citizenship, health, and work through the exercise of time (freeman 2005, 57). in more recent scholarship, freeman has expanded this into a theory of ‘chrono-normativity': what she refers to as ‘the use of time to organize individual human bodies toward maximum productivity' (freeman 2011, 3), and also as the ways in which ‘genealogies of descent and mundane workings of domestic life interlock through temporal schemes' (freeman 2011, xxii). some examples of chrono-normativity might include the supposedly ‘normal' timeline of childhood, puberty, courtship, marriage, children, and retirement, from which we all deviate to greater or lesser extent during our lives; or the time of the working day and working week, shaped through contestation over labour rights and pay; or the temporal idea, for queers, of ‘coming out', for immigrants, of ‘becoming citizens', or for offenders, of ‘doing time'. temporal mechanisms or provocations? work-life balance measures, conceived through critical feminist responses to the unequal allocation of undervalued care and the concomitant effects on women of labour market segregation, are temporal mechanisms. they challenge chrono-normativity to the extent that they challenge the hitherto ‘male' time of work: a working day facilitated by women's social reproduction.[footnoteref:2] work-life balance is also a good example of how social ideas of time have emerged through law itself: work-life balance is inherently also a socio-legal concept. unsurprisingly, however, it has also been subject to a number of critiques. despite the potential of work-life balance laws to upset norms of care and work, feminist labour lawyers have argued that these mechanisms have instead reasserted gender roles within the family and in work and reified the position of women as the key agents for performing the ‘reconciliation' of work and family life (fudge and owens 2006). legal and policy work-life balance initiatives have operated within an ideological matrix of family, household, and market relationships which is paradigmatically white (lung 2010; lewis 2000) middle to high income (williams 2005), and heteronormative, even as attempts to recognise queer family forms have become apparent on the face of some legislative reforms (conaghan and grabham 2007). in promoting ‘gender-sharing' or roles for fathers in care, work-life balance can also be positioned amongst policies which increasingly attempt to re-structure normative heterosexuality to maintain a concept of privatised social reproduction (bedford 2009). [2: children have often been required to care for adults and others, and to work for pay of various types, but their exclusion from most policy on work and care is outside the scope of this paper.] so for many, feminist scholarship and activism on social reproduction has not been mobilised in effective ways through legal and policy interventions on work-life balance, which have not sufficiently re-drawn the conceptual paradigms of labour law (e.g. conaghan 2004). but despite many feminist labour lawyers finding work-life balance to be a problematic response to gendering processes within labour law, it nevertheless has been a fact of life, it has held a certain self-evident truth in the field, and it has provided something of a ‘provocation', as kathi weeks would put it, to think otherwise about women's participation in the paid labour market (weeks 2011). materialising law and time it should be possible to hold in place this understanding of work-life balance as provocation whilst also analysing the co-constitution of legal and policy temporalities as specific, located instances of pragmatic governance or governmentality. yet the question that still remains within this kind of analysis is how these temporal mechanisms come about, how they are created. my dilemma is how to think about what time looks like and what it does, where it comes from, where it goes, when the ontological and agentic field is populated just as much by matter, objects, the non-human, as it is by humans. when agency is the domain purely of humans, then time is about history: it’s about the forward or circular movement of events or themes, it’s about epochs and narratives. as we know, this is a particular theory of agency and time, specifically it is modernity (latour 1993). as hardly needs repeating, bruno latour’s task in we have never been modern, for example, has been to provide an account of the condition of modernity and to reconstruct the separation between humans and nonhumans in order to arrive at what he terms the ‘full constitution’ (latour 1993, 14). as part of this task, latour takes on what he calls the ‘temporal framework of the moderns’ (latour 1993, 67), a paradigm characterised by the ‘arrow of time’, definitive temporal breaks, and, most importantly, the passing of time. moderns, as latour puts it, understand time passing as if it abolishes all that is left behind, yet they also want to keep, date, save, and display the past. this idea of time passing irreversibly is, as such, a technique of modernity, a ‘classificatory device’ for evacuating the work that goes into keeping the natural and the social separate (latour 1993, 73). in latour’s account, the concept of time passing requires further interrogation. furthermore, the modern approach to time, nature, and society allows them to hold in place two fields of time: one ahistorical field populated by universal and necessary things or forces of nature; the other, much more contingent field of human history, detached from things. distilling latour’s work on time down for the purposes of this paper, i think it is possible to delineate three propositions. first, time as such is not an overarching principle but the identifiable result of a provisional hooking together of elements into something that, in modern terms, looks cohesive (but which cohesiveness is always failing). second, the passage of time, no matter how real and tangible its effects, is a classificatory device, or technique, which accompanies the moderns’ purification of nature and society. third, temporalities are the result of connecting and filing, so that if we change the classification, a new temporality emerges. in order to more fully account for nonhumans, however, it also becomes necessary to focus on the sorting: we have never moved either forward or backward. we have always actively sorted out elements belonging to different times. we can still sort. it is the sorting that makes the times, not the times that make the sorting. modernism like its antiand post-modern corollaries was only the provisional result of a selection made by a small number of agents in the name of all. if there are more of us who regain the capacity to do our own sorting of the elements that belong to our time, we will rediscover the freedom of movement that modernism denied us a freedom that, in fact, we have never really lost. (latour 1993, 76) displacing the ontological split between nature and society also unmoors the idea of one overarching time and the necessity of time passing. through the metaphor of ‘sorting’, latour introduces a means of tracing the temporalities occasioned by the meetings, connections, juxtapositions of a wide range of elements and agencies, human and nonhuman. time does not push this forward. instead, out of a teeming, knotted mass of human and nonhuman connections, new temporalities emerge and act and have effects. the legal temporalities of work-life balance if time is created through a sorting process, through connections among entities, then part of any analysis should include sorting processes that we choose, for various reasons, to name as legal. as a route to balancing ‘work' and ‘life', the uk’s right to request flexible work contains much of interest for a feminist analysis of how legal temporalities are created and sustained. what does it mean, for example, that a concept of temporal ‘balance', or labour market equilibrium, lies at the heart of bureaucratic and legislative approaches to gendered labour structures? resolution: a reckonable present marieke de goede has shown how the socio-technical concept of ‘real time', central to finance capitalism, became possible partly through the development of the dow jones index, which helped to produce ideas of instantaneous adaptive change and hedgeable futures (de goede 2005). a similar ethnographic analysis of work-life balance policies and laws might trace the interaction of feminist conceptions of social reproduction, time-use surveys, sex discrimination laws and policies, and new theories of management such as tqm (total quality management) which valorise organisational adaptability and worker responsibilisation (amoore 2004), to create motivating social policy goals of equilibrium and adaptation. the confabulated logic of work-life balance, a result of many different influences, seems to be driven by a fundamental assumption that the constructed tensions of imbalance or dis-equilibrium can be resolved. this type of resolution rests on a perceived equivalence between different forms and uses of time that at least allows them to be measurable on the same scale, so that time spent on social reproduction is analogous to time spent in paid employment. feminists have long argued that time spent on care or domestic work is equally valuable to time spent in the formal economy. work-life balance policies are one logical extension of this argument: if time that has been excluded is to be included in some way, then it must be analogised. as the foreword to the recent modern workplaces consultation put it: we want to create a society where work and family complement one another. one where employers have the flexibility and certainty to recruit and retain the skilled labour they need to develop their businesses. and one where employees no longer have to choose between a rewarding career and a fulfilling home life. (bis 2011, 2) the horizon of this kind of temporality is not so much the hedgeable future that we find in finance capitalism, constructed through notions of risk, which creates a forward concept of time and then stretches into it, but an expanded concept of a reckonable present which stretches outwards and maintains an assumed equilibrium through analogised temporal modes. if ‘real time' requires instantaneous change, then work-life balance requires adaptive negotiation. the point at which this analysis has to engage with law is the point at which we assess the significance of legal technique and legal form to such an understanding of time. within the legal and policy sphere in the uk since the early to mid-1990s, work-life balance has been mobilised by the idea of empowering employees to negotiate flexible working with their employers. the current right to request flexible working in the uk's employment rights act 1996 (era) allows certain employees with responsibility for a child's upbringing, or with other care responsibilities, to make a request to alter their working schedule. under sections 80f-80i of the era, employees have the right to request, but not receive as such, a change in their terms and conditions such as a change in working hours, time of work, or place of work. it is important not to ignore the generative functions of legal techniques such as the right to request. since it has been in place, the right has created new means of sorting time within the context of employment relations in the uk, and arguably it has also created new gendered relations in the workplace. sara jain has argued that typewriters contributed to a process of heterosexualisation of workplace relations in the twentieth century (jain 2006), and i am in the process of fieldwork which aims to assess whether and how documentary practices associated with the right to request (such as filling in, submitting, and considering forms) have created new gendered and heteronormalised social patterns at work, and new genres of temporality. in other words, i am interested in the role of the flexible work request form in creating particular, gendered, social relations of time in this area. these temporalities, crucially, do not stem merely from the social interactions that flexible work requests engender, but instead are co-constructed through, and constitutive of, fragile relations between forms, people, and law. furthermore, this documentary route to achieving flexible work as a precursor to achieving balance is an interesting mix of private law and legislated right. as such, the form of law is just as interesting as the documents it generates. this particular form requires an employer to at least consider an employee’s request for a varied working arrangement, a consideration that is otherwise not strictly necessary in the contractual negotiations that surround the individual employment relationship in the uk.[footnoteref:3] in this way, uk legal mechanisms of work-life balance are themselves rich sources of information about regulatory understandings of gender, value, time, and the place of law, questions which are being asked in a range of scholarship in the fields of law, anthropology, and governance. in her recent analysis of the introduction of a new banking system in japan, for example, annelise riles refers to bureaucrats' hopes that a system based on ‘real time' transactions would responsibilise banks, leaving a new order to emerge based on ‘market practice' (riles 2011). the idea was that the new technology would encourage banks to control their risk-taking practices. this was a specifically bureaucratic vision or hope, which relied on bureaucrats' ability to see the banking system as a whole. similarly, successive groups of bureaucrats in the uk's department for business, innovation and skills (bis), and, i would argue, policy makers, many of them feminists, have created a system of delegated negotiations between employers and employees in the right to request, through which actions of autonomous and self-interested market participants are seen to create beneficial or self-correcting economic effects at the level of the labour market. i use the term ‘delegated' because the right to request flexible work does not amount to a direct right granted by legislation to receive a flexible working arrangement as such. it depends on a further step, the request, which mobilises a semi-regulated private law process in which the role of the employer is central. in other words, it seems that the right to request evidences a wish to dis-entangle bureaucratic involvement, or keep it partially away from a market which is perceived already to have self-regulating functions. as such the right could evidence an almost hayekian appreciation of the self-regulating functions of private law negotiations, happening in so-called ‘real time’ to resolve labour market tensions around the allocation of care responsibilities. [3: thank you to judy fudge for helping me to clarify this point.] recent proposed changes to the right to request have universalised the right to request and further embedded it within this logic of private ordering. in may 2011, in the midst of economic crisis and on the back of a pro-‘austerity' platform, the uk's centre-right coalition government announced a new consultation on reforming work-life balance law. entitled modern workplaces, the consultation was the government's effort to ‘create a modern workforce for the modern economy'.[footnoteref:4] it covered four main policy areas: flexible working, flexible parental leave, working time and equal pay. self-consciously aware of perceived shifts in the gendered arrangements of work and care, the consultation contained extensive proposals to change the administration of maternity and paternity leave, allowing ‘mothers' and ‘fathers' to share leave between them, extending parental leave (to comply with european union case-law), and introducing changes to the scope and administration of flexible working, amongst other things. significantly, in what might appear to be a bold and progressive move, the coalition government proposed in the modern workplaces consultation to expand the availability of the current right to request flexible work, making it available to all employees, regardless of whether they have a care obligation. these proposals are now contained in the children and families bill 2013, which is currently making its way through the uk parliament. [4: bis press release, 16 may 2011.] this could be seen as a shift to undermine the gendering of care-related requests in the workplace. in other words, it could be read as an equality move, albeit based on something akin to a formal equality model: if anyone can make a request for flexible work, then the gendering of unpaid care is apparently challenged. however, this shift is just as much to do with private law and the logic of labour market equilibrium as it is to do with shifts in conjugal work and care models. in the parliamentary debates around the children and families bill, government ministers persistently adopt the idea of flexible work as economic strategy. edward timpson, parliamentary under secretary of state for children and families, for example, put it as follows during the second reading of the bill on 25 february 2013: we believe that supporting strong families and introducing flexible working practices is key to achieving business and economic growth. a new system of shared parental leave will support business by creating a more motivated, flexible and talented work force. flexible working will also help widen the pool of talent in the labour market, helping to drive growth.[footnoteref:5] [5: hansard, commons debates, 25 february 2013, column 49.] now, this rhetoric is not new. it echoes similar rhetoric used by the previous labour governments. however, it is worthy of analysis for what it indicates about how the dilemma of unpaid care is conceived at legal and policy levels. the coalition government's rationale appears to be that flexibilising working relations, allowing employees some lee-way in determining their own working hours and working arrangements, brings talented people into workplaces, creates opportunities, promotes economic activity and assists in the creation of growth in the new economy. the logic of such a move is neatly aligned with market-oriented approaches to labour regulation, in which rational market actors negotiate their own optimum terms and conditions. this idea of the market is also infused with an understanding of social reproduction which positions the resolution of the care dilemma as a key means of promoting economic growth. the coalition’s policy extends hayek’s emphasis on the spontaneity of market order to social reproduction; the idea is to give people the freedom to resolve the contradiction between care and work and such individual flexibility will lead to economic growth. . flexibility requests: a modulated suspension of certainty? such a view of the right to request is supported by the fact that preand post-reforms, it still sets no particular temporal standards, as such, around the arrangement of working time. instead, the framework provides a space for individuated arrangements with specific, and staged, temporal qualities. the right to request process begins with an employee filling in a flexible working request form (or similar document) and submitting it to their employer. the employer must then call a meeting within twenty eight days to discuss the form, and they must make a decision about the request within fourteen days of the meeting. employers can refuse requests only for business reasons outlined in the era, for example, if the new working pattern would adversely affect quality and performance. if the employer refuses a request on incorrect facts, or for a reason that is not listed in section 80g era, the employee can make a complaint to an employment tribunal for reconsideration of the original application or for compensation. the logic of the first part of this process encourages something akin to the modulated suspension of certainty that latour perceives in his ethnographic study of the workings of the conseil d'état. latour remarks that legal processes within the conseil produce a sort of homeostasis, a sense of everything being covered ‘completely and seamlessly', unlike scientific processes which leave voids (latour 2010, 114). homeostasis evokes the ability to maintain a constant through the adjustment of other features of a system. arguably the temporal horizon of homeostasis does particular work within latour's analysis. legal processes, and hence conseillers, labour under an obligation to ensure legal predictability (or securité juridique). to some, predictability might imply a progressive or consolidating temporal narrative: certainty filters in through the ambience in the conseil, is strengthened through legal process, and then finally established in the act of judgment. a lack of certainty gives way to a relative sufficiency. but this is not how latour describes it. in fact, on latour's analysis, legal predictability happens through the fabrication of doubt and distancing in other words, through the strategic avoidance of certainty. as latour puts it, these distancing procedures are required so as to ensure that the law ‘has doubted properly' (latour 2010, 94). having suspended certainty, and indeed actively fabricated doubt, a curious completeness takes over law: homeostasis, a type of all-encompassing, self-adjusting, temporality (latour 2010, 113), produced through a multitude of adjustments and changes in pace. from the present (post-judgment) vantage point, the legal principle confirmed through proceedings at the conseil is as it has always been, despite the fact that the entire process was pursued through means of a graduated suspension of certainty. such a suspension of certainty can be seen in the process of applying for, and deciding on, a request for flexible work under the era, characterised through time periods, the exchange of documents, and the apparent open-minded deliberation of the employer. however, according to the era, the employer must then make a decision within fourteen days of the meeting. at this stage of legal proceedings, the decision is final. it either results in an entirely new contract or the reassertion of the old contract. in fact, once the new contract exists, the dilemmas that motivated the negotiations under the old contract have become impossible to mobilise legally. this is definitely not a flexible legal scheme in the normal sense of the word. the right to request only provides flexibility to shift to a new, on-going, seemingly permanent but legally indeterminate, working regime, and no guarantee, on the face of it, to shift back or shift again when required. this technical legal mechanism can only currently be exercised once every twelve months. as such, the employer's deliberation, the employee's submission to time periods and form-filling, and the all-encompassing time of the new contract all contribute to an understanding of the flexible work request as inaugurating a type of staged legal homeostasis. this is a strange and contradictory legal temporal mechanism: a right to negotiate only, for a form of flexibility which leads to a new permanent working arrangement. concluding remarks work-life balance laws and policies, themselves embedded in mutating networks of gender, labour, and value, have a range of contradictory logics and significant social effects. in the context of the insistent demands of two, perhaps three generations of feminists, for example through wages for housework demands, some might argue that the stultifying effects of aiming for ‘balance' have ensnared utopian feminist visions of re-valuing social reproduction into restrictive practices of negotiation and exclusion. those women who find their way through increasingly complex eligibility requirements to claim the right to request flexible work in uk law, for example, are met with onerous processes of form-filling, negotiation, and time periods, raising concern over the transformative potential of work-life balance laws. certainly, my own approach over recent years has become increasingly critical of ideas of ‘balance' within feminist or other social policy initiatives. scholars who are concerned with questions of social reproduction and labour regulation should be mindful of the argument that the ‘real time’ resolution model found in legal mechanisms such as the right to request flexible work are no less feminist because they are based on a logic of market-oriented solutions. those of us who might wish for more radical solutions to the unpaid care dilemma also need, first, to understand how it is that feminist conceptions of social reproduction contribute to this hybridised legal mash-up, and second, to accept, to a certain degree, that this strange legal-conceptual model is a fact, worthy of close attention on its own behalf. it is strange enough, as it is, to be worthy of considerably more research attention in terms of its legal form and temporal assumptions. if we pay this kind of attention to legal work-life balance mechanisms, we find that form-filling, negotiation, and legislated time periods are themselves constitutive of time. they create (legal) temporalities through a process akin to what latour would term ‘sorting’. as such, whilst i remain critical of legislated work-life balance projects, it remains necessary to understand their temporal assumptions and logics. the picture that emerges is confusing, involving a range of contradictory temporal mechanisms legalised homeostasis, flexibility through permanence, for example. yet by looking closely at legal technicalities, we can discern much about the conceptual logic that affects many of us through influential regulatory strategies. references adkins, lisa. 2009. “feminism after measure.” feminist theory 10 (3): 323–339. amoore, louise. 2004. “risk, reward and discipline at work.” economy and society 33 (2): 174–196. bedford, kate. 2009. developing partnerships: gender, sexuality, and the reformed world bank. university of minnesota press. bis. 2011. “consultation on modern workplaces”. department for business, innovation and skills, hm government. conaghan, joanne. 2004. “women, work, and family: a british revolution?” in joanne conaghan, richard michael fischl and karl klare (eds), labour law in an era of globalization, 53–74. oxford university press. conaghan, joanne, and emily grabham. 2007. “sexuality and the citizen carer.” northern ireland legal quarterly 58: 325–342. de goede, marieke. 2005. virtue, fortune, and faith: a genealogy of finance. university of minnesota press. freeman, elizabeth. 2005. “time binds, or, erotohistoriography.” social text 84-85: 57–68. freeman, elizabeth. 2011. time binds: queer temporalities, queer histories. duke university press. fudge, judy, and rosemary j. owens (eds). 2006. precarious work, women and the new economy: the challenge to legal norms. hart publishing. jain, sara s. lochlann. 2006. injury: the politics of product design and safety law in the united states. princeton university press. latour, bruno. 1993. we have never been modern. translated by catherine porter. harvard university press. ———. 2010. the making of law: an ethnography of the conseil d’état. polity press. latour, bruno and michel serres. 1995. conversations on science, culture and time. translated by roxanne lapidus. university of michigan press. lewis, gail. 2000. “black women’s employment and the british economy.” in kum-kum bhavnani (ed.), feminism and race, 297–381. oxford university press. lung, shirley. 2010. “the four-day work week: but what about ms. coke, ms. upton, and ms. blankenship?” http://papers.ssrn.com/abstract=1652180. riles, annelise. 2011. collateral knowledge: legal reasoning in the global financial markets. university of chicago press. weeks, kathi. 2011. the problem with work: feminism, marxism, antiwork politics, and postwork imaginaries. duke university press. williams, lucy. 2005. “poor women’s work experiences: gaps in the ‘work/family’ discussion.” in joanne conaghan and kerry rittich (eds), labour law, work, and family, 195–216. oxford university press. ________________________________________________________________________ 2 ________________________________________________________________________ 1 feminists@law, vol.3, no.2 (2013) laura fantone, 'gender and precarity in contemporary italy: labour, value and social reproduction' this is an audio recording of a lecture by laura fantone as part of feminists@law's labour, value and precarity in the age of austerity lecture series. the accompanying powerpoint slides (pdf or ppt) are designed to illustrate the lecture. it is possible to listen to the lecture either via this audio file, or by opening the ppt file and clicking on the audio symbol within each powerpoint slide. be aware, however, that the ppt file is very large and takes a long time to load, so it may be easier to listen to this audio file and view the slides separately via the pdf file. dr laura fantone is a lecturer in gender and women's studies at the university of california, berkeley. feminists@law, vol.3, no.1 (2013) emily grabham, 'passing the buck: unpaid care, precarious work and the children and families bill 2013' this is an audio recording of emily grabham's paper delivered as part of the 'families and work' theme at the slsa annual conference, university of york, 27 march 2013. the paper outlines preliminary findings from her three-year, esrc-funded project on the experiences of female precarious workers in managing work and care, focusing on legal gaps in work-life balance provision which remain unaddressed in the children and families bill. the conference theme was organised by the families and work network (fawn), and further information can be found on the fawn website. dr emily grabham is a senior lecturer in the kent law school, university of kent. genovese introduction feminists@law, vol 3, no 2 (2013) introduction: feminist jurisprudence and the question of home anne genovese the seminar 'feminist jurisprudence and the question of home', convened by dr ann genovese, was held at melbourne law school, university of melbourne on 6 september 2013, under the auspices of the institute for international law and the humanities (ilah). here, ann genovese introduces the seminar and the speakers.   anne genovese is a senior lecturer in the melbourne law school, university of melbourne, australia. genovese@unimelb.edu.au bhandar race, gender and class ______________________________________________________________________ feminists@law vol 3, no 1 (2013) ______________________________________________________________________ race, gender and class: some reflections on left feminist politics and organising brenna bhandar* these are notes from a short talk that i gave at the international socialist network meeting in london on 8 june 2013. they are a reflection of an informal discussion of some key issues facing left feminist politics and organising. a version can also be found at http://internationalsocialistnetwork.org/index.php/ideas-and-arguments/analysis/151-brenna-bhandar-race-gender-and-class. one of the speakers just noted how the organised left contingents at recent anti-fascist demos against the edl and bnp have been largely white, and that there was a need to cultivate an anti-racist politics on the left that included more people of colour. i want to suggest that one reason for this absence is the perception amongst many people of colour on the left that socialist organisations and parties have had, and continue to have a very poor track record of taking issues of race and racism seriously. taking race seriously requires more than mentioning the words ‘anti-racism’ and acknowledging that racism exists, and goes to the core of how we analyse political problems. this is what i want to focus on today. building a radical left political movement or network means taking race and racism, along with gender and sexuality (and we should also add, disability) seriously. and while there are great instances of solidarity and activism between left organisations and particular campaigns (the soas cleaners’ campaign, for instance), or in a different context, the efforts of the organisers of the historical materialism conference to account for race and gender, reflected in the stream being organised on race and capital: marxist legacies of anti-racism and the black radical tradition that explicitly accounts for black feminist activism and scholarship, and critical indigenous theory, there remain quite serious obstacles to advances being made on this front. an example of socialist feminist work that has failed to take into account issues of race and racism as a core part of its analysis of gender oppression can be seen in nancy fraser’s recent work, the fortunes of feminism: from state-managed capitalism to neoliberal crisis (2013). a panel to discuss her work and to reflect on the future of feminism was held recently in london. did the organisers of the session on the future of feminism not think it necessary to include any women of colour or scholars whose scholarship deals centrally with both race and gender? one of the panellists, in fact, mentioned at the conclusion of her remarks that race was a problem in the composition of the panel. (the session can be listened to here). this is important as it reflects a cognizance amongst left feminists that race is something that needs to be accounted for in feminist theorising. this problem of representation is complex; it is not merely about the visible representation of women of colour, although this remains a very important issue because we are all too often absent from these sorts of discussions and our points of view rendered invisible. representation however is a larger and more complicated problem because the left has not gotten very far in reconceptualising the very categories of analysis that people use to understand political phenomena, such as patriarchy. if socialist feminism(s) had reached a point where race formed a core part of its analyses, then it would perhaps not matter as much, as to whether or not the panel was all white. but chances are that one’s standpoint or epistemological framework is still determined by one’s experiences in the world. how is it, that nearly 40 years after the publication of selma james’ sex, race and class (1976), and 30 years after the publication of angela y. davis’ women, race and class (1982), race has yet to really permeate socialist feminist theorisations of patriarchy and capitalism? and here we can briefly turn to fraser’s book (although there are many others that would serve as equally valuable objects of critique), and some of the problems with her frame of analysis that doesn’t seem to account for the scholarship of black feminists, women of colour, subaltern and post-colonial feminism. the fortunes of feminism is a collection of fraser’s essays spanning the past 30 years or so. the collection is a testament to fraser’s original and highly significant contributions to the fields of feminist theory and philosophy. when it comes to issues of race, gender and sexuality, however, i am not the first person to critique the manner in which race figures (and is also absent) in her work. the chapter entitled “a genealogy of ‘dependency’: tracing a keyword of the us welfare state” (co-authored with linda gordon) analyses the “racial and gender subtexts” of the discourse of welfare dependency in the u.s. while the chapter usefully unpacks some aspects of the political development of the term dependency, including its colonial and neo-imperialist dimensions, the repetition of the “housewife, pauper, native and slave” quadrumvirate as the focal point of analysis certainly recalls the criticism of black feminists gloria hull, patricia bell scott and barbara smith encapsulated in the title all the women are white, all the blacks are men, but some of us are brave (1982). black feminists have critiqued modes of analysis that fail to consider how the categories of race, gender, sexuality, and class cannot be kept analytically distinct if one is to understand how oppression operates along these axes in an interlocking manner. in some of the later essays, nancy fraser focuses on the need for a post-industrial welfare state. in the chapter entitled “after the family wage: a post-industrial thought experiment” race disappears entirely from the discussion of waged labour and domestic work in the home. issues of income equality between men and women take no account of how race and racism operate to devalue the work of women of colour in ways that differ markedly from that of white women. in fact, “’racial’-ethnic justice” is posited as an entirely separate goal from gender justice, to be “handled via parallel thought experiments.” the experiences of women of colour as workers in and outside of the home are not accounted for in devising the analytical framework of analysis. feminists have revealed the ways in which traditional marxist understandings of labour as waged labour doesn’t account for the socially reproductive work of women. marxist feminists have also shown how theories of capitalist accumulation have invisibilised the reproductive labour of women who reproduce “the most essential capitalist commodity – labour power” (federici, 2009, p8). feminists who take race as a fundamental part of their gender analysis have taken this critique much further, deepening our analysis of the contradictory ways in which capitalist exploitation operates. as patricia hill collins has noted, black women’s relationship to both paid labour and unpaid work in the home is significantly different from that of white women: a less developed but equally important theme concerns how black women’s unpaid family labor is simultaneously confining and empowering for black women. in particular, research on u.s. black women’s unpaid labor within extended families remains less fully developed in black feminist thought than does that on black women’s paid work. by emphasising african-american women’s contributions to their families’ well-being, such as keeping families together and teaching children survival skills… such scholarship suggests that black women see the unpaid work that they do for their families more as a form of resistance to oppression than as a form of exploitation by men. (collins, 2000, p46) if time permitted, collins’ argument could lead to an interesting discussion of james’ political demand for the remuneration of work done in the home. however, the point i want to make here is that when we try to understand the way in which labour as an analytical category needs to be reconceptualised to account for women’s reproductive labour, this becomes a much more complex and contradictory endeavour when race is also a material concern. and this is really important for political organising. these debates have been going on in feminist communities in britain since the 1970s when marxist feminists identified the home and domestic work as a key site of women’s oppression, without accounting for the very different experiences and understanding that black women had of their labour and its relationship to the labour market. i would be remiss in not mentioning the one, albeit very brief mention of the work of southall black sisters by a panellist in the futures of feminism session: a brief but welcome attempt at refuting the analytical distinction between a politics of recognition and redistribution that is central to fraser’s theory of recognition. in this theory the issue of race seemed largely reduced to an issue of cultural difference or diversity. from there, it follows that race is understood as a category of identity, and on that basis, fraser critically assesses an identity-based politics of recognition (while simultaneously acknowledging its importance) as having drawn attention away from the pressing political objective of redistribution. however, in ignoring the ways in which women of colour have out of necessity integrated their claims for equality, recognition and redistribution (for it is impossible to separate these out practically or analytically when racism and sexism always-already constitute the specific form of class exploitation that one is faced with), their experiences, histories, and scholarship are rendered irrelevant. as aslan and gambetti have skilfully shown in a related context, fraser’s work has a tendency to “disregard the differences between feminist movements in their cultural, political and geographical contexts” (2011, p133). one effect of this approach (and the failure to criticise it) is to universalise the experience of white, and most often, middle class women. the word “woman” is used as though it applies to all women when it actually represents and signifies the experiences and histories of white women. this means that the experiences of black women, asian women (and, in other contexts, indigenous women) are erased or suppressed by the theories and politics of left feminisms. it means that the analyses of political problems that are being presented are partial and incorrect – because (as we know), capitalism has been forged through colonial dispossession, the atlantic slave-trade, and now, a globalised form of capitalism that depends on third world labour whose value remains fixed – to some degree – by racism and a persistent belief in white superiority. now this is not a new problem, and i can only chalk the resistance of white feminists to put race at the forefront of their understanding of patriarchy and capitalism to a few possible things. one is a wilful blindness. another is the reluctance, perhaps unconscious, to give up the many privileges that accrue to those who are racialised as white. a third is perhaps an inability to distinguish between simply declaring that racism is a problem and actually bringing a critical race analysis to bear upon their theorisations of gender oppression. and it’s clear that feminists outside of socialist and marxist organisations are doing some of this work, and in some instances, it seems to me, are further ahead on this score. one need only look to critical ethnic and critical race studies for evidence of this in academic contexts. taking account of race, gender and sexuality there is a long and varied tradition of black radical thought and marxist feminism that has sought to, in the words of frantz fanon, “stretch marxist categories” in order to account for colonialism. it’s important to recognise that the relations of exploitation established during colonialism have not ended. while formal decolonisation swept through africa and asia from 1947 onwards, contemporary patterns of globalised capitalist exploitation rely on the economic and political patterns and relationships established during colonialism. settler colonialism continues as an on-going and continuously unfolding event – in places such as palestine, canada, australia, and others, colonialism has not ended from the perspective of indigenous communities and first nations. to take another example of someone who incorporates an analysis of gender and race into her work, silvia federici has argued (drawing explicitly on earlier work of feminists like selma james) that the making of the proletariat was only possible through a capitalist system that was committed to both sexism and racism. she writes: primitive accumulation, then, was not simply an accumulation and concentration of exploitable workers and capital. it was also an accumulation of differences and divisions within the working class, whereby hierarchies built upon gender, as well as ‘race’ and ‘age’ became constitutive of class rule and the formation of the modern proletariat. (federici, 2009, p64) so we can see that the sort of analysis that we need to cultivate if we are to take race, gender and sexuality seriously is one that seeks to reinterpret and reshape our conceptual toolkit. federici has done this in relation to the category of the proletariat; cheryl harris in relation to property, gender and whiteness; historians of slavery and revolution – eric williams and c.l.r. james for instance – have done this in relationship to our understandings of how race shapes relations of labour and property; and we could go on with a multitude of other examples. when i was invited to participate in this session, an isn member mentioned that young activists turning their gaze towards feminism and anti-racism are interested in the idea of intersectionality as a method. intersectionality emerged from an american academic discourse that was aimed at making liberal legal rights frameworks a bit better at accounting for how some people do not simply suffer discrimination along one axis, either gender or race or sexuality. while intersectionality usefully opened a conversation in the north american, and twenty years later, the british legal academy about how equality law could better function, in my view its usefulness has really run its course. intersectionality is primarily a left-liberal law reform project that does little to account for class. as a discourse that is primarily academic and law reform-oriented, i don’t think that this has much to offer left political movements or radical marxist critique. having said that, a major qualification of this background to the concept of intersectionality is the work of british feminist avtar brah, who has used the term to describe a more radical and less limited method of analysing race, gender and class. i want to conclude with another example of how to re-think the concepts that we use to explain political events. stuart hall and others, in policing the crisis (1978), explores the work that “labels” do when they are applied to certain phenomena. so they look at the label “mugging” that is deployed in the 1970s to construct particular sorts of crimes as novel, and in doing so, racialise acts of theft. they analyse how the label of mugging is used to criminalise black communities and bring in harsher forms of policing and sentencing in criminal trials. what work are the labels that have been used to describe the woolwich murders doing, when we see headlines in mainstream press such as “beheaded!” or “bloody terror: islamist beheads soldier on london street!” or “blood on his hands, hatred in his eyes!”? · by interpreting this event as one that is primarily if not solely about islamic fundamentalism, what gets obscured? · what work does the label of “jihadi” or “muslim terrorist” do? what have these terms come to represent over the past 11 or 12 years? · how do these labels detract from the other factors clearly of relevance when we think about the causes of radicalisation – i.e. racism, class disaffection, and the experiences of immigrants in this country? · these were disaffected young black british men; one of whom was subject to a violent racist attack right before his conversion to radical islam. how do these facts fit into the narratives being created by mainstream media? richard seymour (2013) has written about this eloquently and incisively and so i will refer you to his piece. so to sum up, whatever priorities this network sets for taking action, for organising, for analysing and theorising, i think what is really vital is not simply using the language of anti-racism or anti-sexism. what is needed is some thinking through of how political campaigns for a living wage, or campaigns against the increasing privatisation of security and prisons, campaigns aimed at fighting increasingly draconian and punitive immigration policies, anti-austerity politics, etc and etc., need to be conceptualised in ways that take account of how capitalism is committed to and thrives off of racism, sexism and heteronormativity in all their complexity. references özlem aslan and zeynep gambetti, “provincialising fraser’s history: feminism and neo-liberalism revisited” in history of the present: a journal of critical history, vol.1 no.1 (summer 2011) 130-147. patricia hill collins, black feminist thought: knowledge, consciousness, and the politics of empowerment (london: routledge, 2000). angela y. davis, women, race and class (london: the women’s press, 1982). silvia federici, caliban and the witch: women, the body and primitive accumulation (new york: autonomedia, 2009). nancy fraser, the fortunes of feminism: from state-managed capitalism to neoliberal crisis (london: verso, 2013). stuart hall et al., policing the crisis: mugging, the state and law and order (london: macmillan, 1978). gloria hull, patricia bell scott and barbara smith, all the women are white, all the blacks are men, but some of us are brave (new york: feminist press at cuny, 1982). selma james, sex, race and class (bristol: falling wall press, 1976). richard seymour, “death by the barracks”, at http://internationalsocialistnetwork.org/index.php/ideas-and-arguments/analysis/120-richard-seymour-death-by-the-barracks. * lecturer in property law, queen mary, university of london. � hyperlink "mailto:b.bhandar@qmul.ac.uk" �b.bhandar@qmul.ac.uk�. ______________________________________________________________________ 2 ______________________________________________________________________ 1 carr feminists@law, vol 3, no 2 (2013) utopias, dystopias and the changing lawscapes of social housing helen carr this is a recording of the paper given by helen carr at the seminar on 'feminist jurisprudence and the question of home' held at melbourne law school, university of melbourne on 6 september 2013. a copy of the powerpoint presentation associated with the paper is provided in the accompanying pdf document.   helen carr is a reader in law at kent law school, university of kent, uk. h.p.carr@kent.ac.uk  sharif palestinians navigating care _________________________________________________________________________________________________________ feminists@law vol 4, no 1 (2014) _________________________________________________________________________________________________________ bodies, buses, and permits: palestinians navigating care rana sharif[footnoteref:1]* [1: * phd candidate in the department of gender studies at the university of california, los angeles. email ranasharif@ucla.edu. her dissertation research examines cultural and visual (re)productions of pregnancy and birth in the west bank, palestine. in her examination she interrogates what such images indicate about everyday life under military occupation while also asking, in what ways do women challenge, resist and produce their own cultural and visual images? i would like to thank co-editors david lloyd and brenna bhandar for their consideration, support and kindness. i am humbled and honored to be sharing my work in this issue amongst the many amazing contributors.] in may 2013, i traveled to palestine for six months to collect data for a research project that examines the cultural and visual productions of natalist images, including pregnancy and birth. during the time i spent traveling throughout the west bank and israel, i took account of the various modes of (re)production of palestinian women’s bodies. i am interested in asking first, what do cultural and visual artifacts of pregnancy and birth indicate about the materialities of occupation and second, how do palestinian women negotiate, respond to and challenge such images? one particularly graphic example i examine in my work is a series of t-shirts produced by israeli battalion members with images of pregnant palestinian women carrying captions like “one shot, two kills,” “better use durex,” and “bet you got raped.”[footnoteref:2] first uncovered in 2009 by uri blau in ha’artez, the shirts serve as a reflection on how palestinian women’s bodies become literal and figurative targets. i argue that such cultural reproductions of violence become mediums where militarization is normalized. pregnancy, from the position of the military soldier, becomes a literal target whereby deliberate violence against one palestinian woman yields the death of many more palestinians to come. [2: according to various reports, the lavi battalion produced a shirt with an israeli soldier next to the bruised body of a palestinian woman with the caption, “bet you got raped.” while reports of the shirt’s production are available, i have yet to locate an image of the t-shirt itself. the t-shirt is reported among others by adam horowitz, “racist and sexist israeli military shirts show the mindset that led to war crimes in gaza”, in mondoweiss, march 20, 2009: http://mondoweiss.net/2009/03/racist-and-sexist-military-shirts-show-the-fruits-of-israeli-militarism.html (consulted april 19, 2014). blau’s original article was published only in the hebrew-language edition of ha’aretz, march 20, 2009. ] figure 1: israeli soldiers’ t-shirts source: http://www.ifamericansknew.org/cur_sit/deadbabies.html my research in palestine documented the various ways in which all palestinian bodies, male and female, are subject to and targeted by the occupying state. in this short piece, i will focus on how gender and occupation intersect in men’s access to care. as a feminist researcher whose research has focused on palestinian women’s bodies, i am taking this opportunity to realign feminist practice to examine the ways in which all bodies are subject to the intersections of gender, race, class and power. finally, i will conclude with some reflections on how the current boycott, divestment and sanctions (bds) movement is one means of addressing the forms of power exercised over palestinian bodies living under occupation. in the space below i will be drawing on participatory observations, specifically moderate participatory observations based on research conducted in the west bank. the data comes from my own personal writings, observations and participation during my time in the region. i traveled to the west bank, israel and jordan in may of 2013 for six months where i conducted my research. on several occasions during my time in palestine and israel, i accompanied bus-rides that transported patients with chronic illnesses such as kidney disease, cancer and/or type i diabetes from the southern parts of the west bank to the augusta victoria hospital located on the southern side of mount scopus in west jerusalem [figure 2]. figure 2: journey to augusta victoria hospital source: google maps the discussion below chronicles the journey undertaken by palestinian sick bodies to receive life-saving treatment. in what follows, i will be meditating on what such journeys mean for palestinian (sick) bodies within the context of legal approval for care. drawing on my own personal accounts and online sources, i hope to illuminate the contours of medical attention for bodies rendered invisible to care. conceptually, i build on achille mbembe’s use of “necropower”[footnoteref:3] to elucidate the framing of bodies in palestine. [3: mbembe, achille. 2003. “necropolitics.” public culture. 15:1. pp. 11–40.] permission granted: despite the fact that i was really sick, it took a whole day to get the papers from the israeli authorities for my transfer. at nine o’clock the next morning, we arrived in a palestine red crescent society ambulance at one of the checkpoints outside jerusalem. the soldiers stopped us. i heard the driver talking to them, but i didn’t understand what the problem was. i was lying in the ambulance, feeling totally helpless. i, an old man, was seeking medical treatment and it seemed no one was helping me. one and a half hours later, i was finally transferred to the ambulance that had come from jerusalem to take me to the hospital. [footnoteref:4] [4: “i’m old and sick and my family can’t be with me.” http://www.emro.who.int/pse/information-resources/abu-abed.html (consulted march 2, 2014).] abu abed, 74, from hebron abu abed’s story is just one of many examples of how palestinian bodies are exposed to the israeli state by their pursuit of medical attention. while the ride-alongs i participated in were coordinated by the augusta victoria hospital, each patient was required to obtain their own legal documentation allowing them to receive treatment, and thus access israeli routes and entry into west jerusalem. the permits were given at one to three month increments, and appropriate documentation would have to be produced each time a permit application was submitted by or on behalf of a patient. the road traveled: karim and tariq,[footnoteref:5] ages 16 and 24, are brothers from hebron. both karim and tariq suffer from a disease caused by a spontaneous gene mutation called autosomal recessive polycistic kidney disease (arpkd), whereby cyst-like sacs develop on the kidneys and can (and do) accumulate on other organs as well. due to the severity of their disease, the brothers must undergo dialysis treatment every other day to ensure that their blood rids itself of potentially life-threatening toxins. both students, karim in high school and tariq a fourth-year undergraduate student at the palestinian polytechnic university in hebron, are required to leave their studies and life every other day for medical treatment at augusta victoria hospital in west jerusalem. [5: names and details have been changed to ensure the confidentiality and security of the patients with whom i travelled. ] once i arrived and settled in, i asked karim and tariq if i would be able to accompany them on their treatment trip. after making arrangements with the bus driver, they asked me to join. as a united states citizen, i am not required to apply for a permit to enter west jerusalem. by virtue of my american passport, i am automatically granted access to essentially all of palestine, including the west bank and 1948 palestine, or what is known today as israel. as a result, the coordinator and bus driver knew i would not pose a problem to their passing through any of the checkpoints and/or barriers they would inevitably encounter. it was a wednesday morning. karim and tariq had given me instructions on where to stand on the main route out of hebron and into halhul so that i might catch the bus. their sister, nuha, joined them.[footnoteref:6] it was 8:30 am when i saw the bus come up the main route. i could see karim and tariq standing near the front of the bus, motioning the driver to stop. the bus stopped, i mounted, and we drove off. [6: each patient receiving care can have one murafiq or escort to accompany them; each escort must also apply for a permit to enter israel on the basis of their family’s medical condition. such documents must also be renewed. for karim and tariq, their parents, sister and brother all had permits to accompany them on their treatment trips.] the bus was full. people, old, young, infants were dispersed and fortunately they had saved a spot next to nuha. i sat down and was instantaneously overwhelmed at the sight and sounds of the many bodies—i could not easily distinguish who was sick and who was an escort. although, i would later figure out that many of those receiving dialysis treatments, like karim and tariq, had (creatively) wrapped their forearm where the machine’s tubing attaches. karim always had his wrapped with a different colored bandana; on this day it was red. tariq never actually wrapped his forearm, but did wear long sleeve button-ups where he would cover up his left forearm, where the machine’s tubes were inserted. hebron was the first major stop, and where a majority of the patients from the southern part of the west bank came from. we continued north towards jerusalem on the main highway, and made stops in tar’umia, the dheisheh refugee camp, and bethlehem. i had already thought it was pretty crowded when i got on, so was surprised to see how many more [sick] bodies boarded. as seen in figure 2, according to google processing time, the route between hebron and the augusta victoria hospital takes at least two and a half hours, with one transfer. since the bus we traveled to the hospital in was commissioned for the purpose of transporting patients, no transfers were required, but multiple stops added additional travel time. karim and tariq make this trek at least three times a week, more if necessary. up until that moment, i was too overwhelmed by the thought of the many sick bodies, old and young, crying babies, and noises to notice that there was something wrong. we were approaching the gilo checkpoint, i think is its name. gilo is the main checkpoint between the west bank and israel. it’s basically the last stop before the patients are taken to the hospital. […] just before the checkpoint, in bethlehem, the driver stopped the bus and parked it. he left the bus and sat on the sidewalk, where he began to smoke, and quickly a flood of men from the bus surrounded him. hands up in the air, people speaking loudly, and the driver visibly distraught. i had no idea what was going on. i just looked, watched and hoped not to get in the way… at this point, the time was approaching 10:30am. all the treatments begin at 11am. tariq came up and explained to us that for each sick patient, there should be only one escort. the bus was crowded because some had brought more than one person with them. […] we sat there, the time ticked and i remember thinking naively to myself, “what, is he really stopping for a cigarette break?” after a few moments, it seemed that there was some consensus. [karim and tariq] approached the window where we were sitting and they quickly motioned to their sister and i to get off the bus. i remember thinking: “um… you guys have dialysis, where are we going? no time to sight-see in bethlehem.” more naïve thinking. […] we got off the bus. their sister and i, along with two other young men under thirty who had been outside talking to the driver and an elderly man in his sixties stood in the sun as the bus drove off. it was agreed that rather than us staying on the bus, we would continue the trek to the hospital on our own to offset the overcrowding. the eight of us walked up and down the streets of bethlehem leading to the checkpoint. the two other young men along with the elderly man were receiving chemotherapy treatment. the elderly man, abu nidal, has cancer of the brain. as he recounted his story to us and we approached gilo, i could not even begin to make sense of this particular time/space formation. after sharing his condition, abu nidal said in arabic, “i will walk and die in my land, they do this to scare us, allah is bigger than sickness [even death], they will see.” we arrived at gilo. they produced their permits allowing them to travel into israel and i showed my us passport. on the other side we took two other modes of transportation to get to mount scopus….karim was late to his dialysis. since he has a more aggressive form of pkd he has to be hooked up longer… tariq took us to the courtyard where we purchased some drinks and his sister and i sat in the courtyard while he went to his treatment.[footnoteref:7] [7: sharif, rana. journal entry. may 2013. ] when considering the “legality” of this experience, on paper it may seem like all formalities are in place: permits to travel, check, bus to travel to desired location, check—not to mention that the bus and its driver need their own approval and permits, nonetheless, check—access for loved ones or escorts, check. in fact, in an article published recently by an israeli online news source, aryeh savir suggests that the number reflected in the title indicates “a dramatic increase” in the number of “judea and samaria” arabs (not palestinians) receiving treatment in israeli facilities.[footnoteref:8] ostensibly, there is much to be celebrated in the overwhelming generosity of the israeli state in “taking care” of palestinians from the other side. while savir suggests that the number of palestinians receiving care in israeli hospitals increased dramatically, saree makdisi offers a counter-narrative, indicating that due to the separation wall partitioning the west bank from israel, specifically jerusalem from its palestinian communities, the number of palestinians living in the west bank and gaza who received care in one of the six palestinian hospitals in jerusalem decreased by fifty percent between 2002 and 2003.[footnoteref:9] in addition, augusta victoria hospital, where abu nidal, karim and tariq receive treatment, “registered a one-third drop in its patient load once tightened israeli controls over palestinian access to east jerusalem went into effect.”[footnoteref:10] juxtaposing savir’s rhetoric against my observations and existing literature, the facts of gaining access to medical attention challenge the legal premise that care for chronic illness in palestine is made available. in my summation, it is not enough to suggest that palestinians are getting treated in israel or have access to do so without exploring more concretely the processes that entails. [8: savir, aryeh. “israel hospitals took care of nearly 220,000 pa arabs in 2012.” the jewish press. july 30, 2013. http://www.jewishpress.com/news/israel-hospitals-took-care-of-nearly-220000-pa-arabs-in-2012/2013/07/30/ (consulted april 26, 2014).] [9: makdisi, saree. 2013. “a racialised space: the future of jerusalem”. in the failure of the two-state solution: the prospects of one state in the israel-palestine conflict. hani faris ed. new york: i.b. tauris. ] [10: makdisi, “a racialised space”, p. 40.] as i watched abu nidal, who receives chemotherapy at augusta victoria, walking up and down the cobble-stone roads of bethlehem towards the gilo checkpoint, i had a visceral reaction. i recall his bald scalp exposing the many scars from surgeries inflicted on him over time to treat his disease. i remember feeling disgusted. abu nidal’s life hinges on a permit that must be renewed every three months. abu nidal is, however, aware of his location in the necropolitical web created by life under military occupation. his life and death are intimately framed by the material realities of life under occupation. his having to take a two hour bus-ride, having to get off due to overcrowding, having to walk through a city and through a checkpoint, having to produce necessary legal documents and continue to his treatment center by taking two additional modes of transportation on the other side of the gilo checkpoint was not an illegal infringement of his rights; on the contrary, these are formalities that the sovereign power deploys to maintain and ensure its security and sovereignty. in accessing their medical attention, abu nidal, tariq, and karim, among the many others, occupy a singular state of exception, where their (material) bodies are always subject to what achille mbembe calls the sovereign’s territorialization, in which the occupied subject is constantly and consistently subject to “new set[s] of social and spatial relations.”[footnoteref:11] for palestinians, who must live out their everyday existence under such circumstances, their material and temporal landscapes must quickly adapt to account for the consistent inconsistencies they face. the boundaries of everyday life are rendered vulnerable to the state’s contortions, while simultaneously needing to be stitched together for the sake of accomplishing the most mundane activities.[footnoteref:12] all episodic flares of trauma are instantaneously absorbed and kneaded into the structures that produce them, ultimately acting as silent killers. [11: mbembe, “necropolitics”.] [12: in the context of the obesity epidemic in the u.s., lauren berlant argues that violence is intricately stitched into the fabric of a society; there is no “real” indication of where it ends and/or where it begins. see berlant lauren. “slow death (sovereignty, obesity, lateral agency)”. critical inquiry. 2007. pp. 754-780. ] for chronically ill palestinians, the difficulty of navigating such a fabric of violence is exacerbated by the sheer realities of their disease. abu nidal, an elderly man with brain cancer, got off a bus and continued his route by foot. in an attempt to “save time” and offer a quick fix to the over-crowdedness of the bus, his illness took second place to alleviating the material consequences of time/space distortions created by the occupation. however, for how long can he persist? how much longer will such solutions hold when one is suffering from terminal brain cancer? livia wick’s work further defines the dynamics of closures and waiting in the west bank. according to wick, waiting as a result of closures, “seems to whisper itself in and out of palestinian history. its everyday oppression produces uncertainty and insecurity.”[footnoteref:13] similarly, julie peteet has brought into focus the ways in which israeli existence is contingent upon the “stealing” of palestinian time.[footnoteref:14] loss of time, checkpoints, closures and waiting constitute the fabric of everyday life. the exceptional nature of chronic illness is made secondary when the demands of navigating an occupied time and space must take priority: someone or something has to give when a bus full of sick bodies is waiting; permits need to be filed for those seeking treatment and their loved ones, regardless of the nature of the illness. [13: wick, livia. 2011. “the practice of waiting under closure in palestine”. city and society. 23:s1. pp. 24-44. p. 34] [14: peteet, julie. 2008. “stealing time”. middle east report. 248:38. pp. 14-15.] in 2010, ‘ala’-al-din taslaq of nablus submitted an affidavit to al-haq, a palestinian human rights organization servicing the occupied palestinian territories, requesting their assistance in gaining access to medical attention in israel. in 2009, mr. taslaq was diagnosed with colon cancer and was subsequently transferred to augusta victoria to receive radiation treatment, which is not available in the west bank. in order to access the hospital, his wife submitted to the israeli health department of the civil administration (hdca) documentation in support of his application for a permit: at the [hdca office in the huwarra military camp], my wife had to wait for more than three hours in a waiting hall before any [officer] would interview her. later, an [officer] interviewed my wife for a period of less than one hour and told her that the [hdca] refused to issue a permit for me on security grounds. my wife presented all the medical reports, which confirmed my need of medical attention at the said hospital, and insisted that she receive a permit for me. at the end of the interview the dco officer gave my wife a permit, which was valid for one month.[footnoteref:15] [15: taslaq, ‘ala’-al-din. 2010. “affidavit no. 5345/2010” for al-haq. http://www.alhaq.org/10yrs/reports/testimonies/item/488-affidavit-no-5345/2010. emphasis added. ] while the legal frameworks are instituted in the west bank by the israeli military unit, coordination of government activities in the territories (cogat), hdca controls the procedural formalities for seeking such permits. in reality, a colon cancer patient is subjected to these legal frameworks each month, when only given a one-month permit. while it may not seem like too much of a problem to return, the hours spent waiting in line, filing forms, and ultimately knowing one’s life is in the hands an hdca officer, exacerbate the already trying condition of suffering from a (potentially terminal) illness. for three months, mr. taslaq’s wife continued to reapply for permission to access augusta victoria, and was given one-month permits. in december of 2010 mr. taslaq had surgery to remove a tumor and had an incision made for excretion. in february 2011, he had a follow-up appointment in order to continue with his treatment. his wife again gathered reports, requested documentation from the hospital and submitted the necessary papers in support of the permit. at this point, the hdca added an additional level to the permit-seeking formality: a palestinian office was instated, where permits would first go through the palestinian office and then be transported by the palestinian office to the hdca. mr. taslaq accounts: the palestinian [office] handed the application over to the israeli [hdca]. upon reporting to the palestinian [office] on the second day, my wife was told that the israeli side was still examining the issue from a security perspective. therefore, i lost my appointment. because an alternative treatment is not available in the west bank hospitals, my health condition has deteriorated. in the instances outlined in the pages above, the difficulty of accessing care for sick bodies in palestine is exacerbated by the material consequences of occupation. as mbembe has suggested, the necropolitical state is invested in contouring not only the parameters of life (biopower[footnoteref:16]) but also, and perhaps more aptly for the actual life of palestinians, of death. it is as though life is lived on threads. buying time, navigating space, accessing units, filing forms, waiting in lines, waiting at checkpoints are all manifestations of the lived reality of palestinian everyday life that are occluded when one considers only the “legal formalities” israel has put in place, formalities which seem to allow for access to certain spaces for sick bodies, but in fact hinder or deny every attempt to do so. [16: for more on biopower and the biopolitical state, see michel foucault. 1979. the history of sexuality: volume 1 (new york: random house); michel foucault. 1975. discipline and punish (new york: random house).] from my own experiences on the bus rides with karim and tariq to augusta victoria, supplemented by reading through documented cases and the existing literature on life under military occupation, it becomes evident that the body’s subjection to intimate spaces of violence violates what life as a cohesive entity might mean, not to mention life plagued by illness. in conclusion, the discussion above merely points out the ways in which bodies, in this case male bodies, are constantly and consistently negotiating life and death as a result of the structures of occupation. as a feminist whose work focuses on women, i feel it is important to address the ways in which both men and women are subjected to the contours of israeli occupation. as i briefly indicated at the beginning of this essay, women’s bodies have been and continue to be literal and figurative targets of occupation. what i have attempted to highlight in this short essay are the ways in which palestinian men’s bodies are also punitively targeted. in this way, the vicious realties of everyday life under occupation, from accessing health care to being pregnant, constitute a necropolitics which affects both women and men. by way of offering some means to combat the severity of everyday life in palestine, the bds movement offers a concrete practice rooted in morality and ethics to challenge and change such circumstances. on various university campuses across the u.s. and the u.k., divestment initiatives have focused on social responsibility clauses built into the structures of all universities that hold the institution accountable for where it sends its money. companies such as caterpillar, elbit systems and cement roadstone holdings are intimately linked with producing and maintaining the structures, checkpoints, blockades, walls, military equipment and buildings of occupation. as feminists have historically critiqued, challenged and fought against systems of power that render bodies accessible to state and intimate violence, bds offers a possibility to implement such an agenda. _________________________________________________________________________________________________ 2 _________________________________________________________________________________________________ 1 /docprops/thumbnail.wmf fe minists @law v ol 4, no 1 ( 201 4) _____________ _ _ ___________________________ _ _ _ ___________________________ _ _ _ _ _______________________ _ _ _ _ _ _ _ _ ____________________________ _ _ _ __________________________ _ _ _ _ _________________________ _ _ _ _ _____ 1 bodies, buses, and permits: palestinians navigating care rana sharif * in may 2013, i traveled to palestine for six months to collect data for a research project that examines the cultural and visual productions of natalist images, inclu d ing pregnancy and birth. during the time i spent traveling throughout the west bank and israel, i took account of the various modes of (re)production of palestinian women’s bodies. i a m interested in asking first, what do cultural and visual artifacts of pregnancy and birth indicate about the materiali ties of occupation and second, how d o palestinian women negotiate, respond to and challenge such images ? one particularly graphic example i examine in my work is a series of t shirts produced by israeli battalion members with images of pregnant palestinian women carrying captions like “one shot, two kills,” “better use durex,” and “bet you got raped.” 1 first uncovered in 2009 by uri blau in ha’artez , the shirts serve as a reflection on how palestinian women’s bodies become * phd candidate in the department of gender studies at the university of california, los angeles. email r anas ha rif @uc la.edu . her dissertation research examines cultural and visual (re)productions of pregnancy and birth in the west bank, palestine. in her examinati on she interrogates what such images indicate about everyday life under military occupation while also asking, in what ways do women challenge, resist and produce their own cultural and visual images? i would like to thank co editors david lloyd and brenna bhandar for their consideration, support and kindness. i am humbled and honored to be sharing my work in this issue amongst the many amazing contributors. 1 according to various reports, the lavi battalion produced a shirt wi th an israeli soldier next to the bruised body of a palestinian woman with the caption, “bet you got raped.” while reports of the shirt’s production are available, i have yet to locate an image of the t shirt itself. the t shirt is reported among others by adam horowitz, “racist and sexist israeli military shirts show the mindset that led to war crimes in gaza”, in mondoweiss , march 20, 2009: http://mondoweiss.net/2009/03/racist and sexist military shirts show the fruits of israeli militarism.html (consulted april 19, 2014). b lau’s original article was published only in the hebrew language edition of ha’aretz , march 20, 2009. davies feminists@law, vol 3, no 2 (2013) home and state: reflections on metaphor and practice margaret davies this is a recording of the presentation given by margaret davies at the seminar on 'feminist jurisprudence and the question of home', held at melbourne law school, university of melbourne on 6 september 2013. a copy of the full paper of which this presentation is an abbreviated version is provided as an accompanying pdf.   margaret davies is a professor at flinders law school, flinders university, adelaide, australia. margaret.davies@flinders.edu.au   the neo-constitutionalism of the latin american left: the case of the resistance front of honduras mendoza the neo-constitutionalism of the latin american left ______________________________________________________________________ feminists@law vol 2, no 1 (2012) ______________________________________________________________________ the neo-constitutionalism of the latin american left: the case of the resistance front of honduras. breny mendoza[footnoteref:1]* [1: * professor of gender & women’s studies, california state university, northridge, usa. breny.mendoza@csun.edu ] in the last years we have been hearing a lot about a ‘turn to the left’ in latin america. the talk has primarily been about countries like venezuela, ecuador, and bolivia, and also about argentina, brazil, uruguay, and paraguay. they are given as examples of countries undergoing deep socio-economic, political, and cultural transformations. honduras did not make it on to the list, not until recently with the coup d’état of june 2009 and the mass resistance movement that formed in its aftermath. its adherence to the boliviarian alliance for the americas or alba in 2008 passed unnoticed, as much else that had been happening in the country for decades. this in part explains why the coup sent shock waves throughout latin america. there has been a lot of contradictory commentary about the coup in honduras in terms of what it means for the social experimentation that has been taking place in other countries. does the coup mean that we are entering “neo-golpismo” or an unstoppable chain of coups in the region that will restore us hegemony and destroy the “socialismo del siglo xxi”? or perhaps the contrary, the global rejection of the coup in honduras demonstrates the political muscle that the new leftist regimes have developed and reveals the weakness of us power in the region. others interpreted the coup in honduras even as a coup against the us president obama, as his early reactions to the coup revealed some fissures between the presidency and the pentagon. for some (particularly the right-wing in the us) obama himself could be seen as part of the turn to the left in the western hemisphere, as the first african-american president in the us to be seen en par with evo morales, the first amerindian president in latin america. and yet as more us-backed coup attempts have come after honduras, most recently in ecuador (and there were some before, before obama, like venezuela and haiti) a few ecuadoreans expounded a new meaning of the coup by shouting “we are not honduras” to their own golpistas or coupmakers, identifying the coup in honduras perhaps as a disgrace that can only happen in the tiny “banana republic,” but not in their own backyard. putting these interpretations of the coup aside for the moment, the eruption of the resistance movement of the people of honduras into the political field did raise some eyebrows and question marks. the scenes of fearless impoverished people, women and men alike of all ages and races, confronting tanks and soldiers for almost 200 days in a row and still doing it today came as a surprise not only to political analysts but to hondurans themselves. as a result, the resistance movement in honduras has increasingly gained more attention. the way the resistance movement against the coup apparently barged into history makes it, however, somewhat difficult for the external observer trying to discern what kind of social movement it actually is and what the coup d’état represents for hondurans. of course, it is still too early to say anything definitive about the resistance movement in relation to its internal dynamics and its political project (it is very much still under construction), as well as about its potential to enact similar transformations to those achieved by other social movements in south america. and even in the latter case, as we well know, how one views the success of the so-called turn to the left and social movements in other countries is still a matter of debate. in any case, perhaps it is necessary to say at the start that my comments on the resistance front of honduras are of a very provisional character, impressionistic, and intended as a political reflection and less as a theoretical contribution. i should also add that my view of the movement is very limited by my condition as a honduran expatriate, and it is also influenced by my identification with feminists in resistance (a honduran coalition of feminist organizations and individuals that have united to resist and organize against the coup). thus it is a view of a partly outsider, partly insider. perhaps the words of a well-known honduran playwright, rafael murillo selva, can help us begin to understand the meaning of the coup and the resistance movement in honduras better. he tells us: “the eruption of the national front of popular resistance is the most relevant cultural event of our supposed republican life, only comparable to francisco morazán’s struggle to keep central america united (in the 19th century)…the emergence and formation of the resistance front in all corners of honduras is like a high intensity earthquake that leaves no structure standing. this earthquake has broken the ideological apparatus that has shaped our values, belief systems, and customs. our codes are changing. in this sense, resisting is change, and change involves transforming ourselves deep inside…we have acquired a new sense of everything, of doing politics, practising religion, education, work, family, sex, love, art, science, sports, communication…we are building nothing less but a counterhegemonic culture! bertha caceres, a leader of the civic council of popular and indigenous organizations (copinh) sums it up in a sentence. she says: ‘the coup created the resistance front and the resistance front has changed our way of life.’” at another point in the conversation, murillo selva adds, “the coup has allowed hondurans for the first time to feel a sense of belonging and enabled us to draw our own path (to the future). we have rationally and emotionally become aware of our historical being and are now more able to connect to other processes occurring in the region. appropriating our history gives us a sense of a higher purpose in life that goes beyond our personal lives. this explains why the murders of hundreds of resistance members have not caused fear, instead they have served to reenergize and keep the struggle going.” like many others in the resistance front, murilla selva ends by mentioning the almost million and a half signatures that the front has been able to collect to call for a constitutional assembly. he raises hopes for “a new constitution that creates a new social contract that is more kind, just, more humane, participatory, inclusive, dignifying, more accepting of our diversity in unity, communitarian, less vertical etc.”[footnoteref:2] [2: (my translation) http://www.redaccionpopular.com/content/honduras-rafael-murillo-selva-cultura-en-resistencia.] i have cited murillo selva’s words at length because perhaps like no other, he has been able to capture what many have called the renaissance of honduras and describe the structure of feelings that characterizes the lived experience of those engaged in the resistance movement. the euphoria one senses in his words resonate with many descriptions of other social movements in the region. his assessment of the deep transformation that is taking place at the level of consciousness of the masses seems to integrate honduras into the political/cultural map of the alleged shift to the left that is taking place elsewhere in the region. no longer excluded or separated from the context of struggles of latin america as it had been in the past, in the ‘70s and ‘80s when other central american countries were engaged in guerrilla warfare and as honduras was being used by the us as the counterrevolutionary platform, honduras appears now to have intensified her communication and interaction with other movements in latin america, revealing her “sentido de lo latinoamericano,” that is, showing what she shares with other ethnic groups, regions, or nations (escobar, 2010, 5). one can say then that honduras has joined latin america in the struggle against colonial/modern capitalism. she too has turned to the left or she too would have become decolonial. that is, she has begun entering that third political space that creates a form of politics that interweaves social movements and unorganized masses of people who together shape a new political culture, independent of political parties, and the traditional ideologies of the left and right. if we, on the other hand, accept nelson maldonado-torres’ description of the decolonial turn as the horror that the excesses of colonization provokes in the colonized, then hondurans participating in the resistance front are probably expressing a decolonial attitude also (maldonado-torres, 2008). they are reacting with horror as they experience the genocidal reason of internal and external colonization with its daily dosage of state violence, the daily hemorrhaging of the resistance front, dispossession of the livelihoods of the poor, and the complete illegality of the ruling regime. the resistance front and their sympathizers are asking simply for a new beginning that is, in their own words, anti-capitalist, anti-neoliberal, anti-oligarchic, anti-imperialist, anti-racist, and anti-patriarchal. that so many feel this way after the coup and that these words are part of the new political discourse of the many social movements that comprise the resistance movement indicates that social movements are ready to undertake new alliances among themselves to create a counterhegemonic bloc and a new logic of power to transform society. but honduras enters this process of building a counterhegemonic bloc in a different international context than that in which the left in south america was able to take control of state power. it makes its appearance at a moment when the project of the left has begun showing its limited capacity to decouple from the logic of neoliberal global capitalism and as one has begun to doubt seriously the capacity of the state to make the structural changes that are necessary to transform society. the resistance movement in honduras takes the stage when the decolonial turn in the south american bloc, led mainly by indigenous movements, is being already singled out by some social movements as “andinocentric” or as the project of re-indianization of society collides with some strands of feminism and other ethnic groups: that is, as internal contradictions begin to appear. the resistance front in honduras also occurs at a high point in the crisis of capitalism, and at a moment when the declining us empire turns its attention towards latin america and attempts to re-militarize the whole region (golinger, 2009).[footnoteref:3] but perhaps most importantly, it comes into being as the hegemonic bloc in honduras has closed ranks like at no other point in history, and as the transnational ultra-rights of the world extend their helping hand.[footnoteref:4] this political conjuncture is very challenging for the national resistance popular front and it certainly puts in question the possibility of it taking state power any time soon---as it said it wants to do. but it also provides a great opportunity to revise the strategies and political models used by others to bring about social change. [3: see also http://www.visionesalternativas.com/militarizacion/index.htm two years after the coup the us has opened two new military bases in honduras (la mosquitia and guanaja).] [4: in the aftermath of the coup, honduras received many visitors (politicians and businessmen) from the ultra-right from countries like the us, spain, colombia, and venezuela. some of them made tv appearances and organized seminars. the state’s tv channel screened a spanish documentary for several months that depicted the regimes of chavez and morales as fascist. much has been said about the collaboration of alvaro uribe of colombia, otto reich, a cuban american, and pedro carmona of venezuela in the planning of the coup. ] the following is a reflection on the choices made to date by the resistance front in terms of their strategies and political models. i also reflect upon the tensions that exist between the mostly male leadership of the resistance front and the feminist movement, and on what feminists themselves need to do to articulate a feminist agenda inside the resistance front. the politics of the national resistance popular front and the problem of the constitutional assembly the resistance front has borrowed much of the language of social movements in other countries like venezuela, ecuador, and bolivia. it has redeployed concepts such as the refoundation of the nation and decolonization to shape its own politics. the front also uses many of the same strategies that have been used in these countries. thus it has chosen as its main strategy the refoundation of the country through a constitutional assembly that elaborates, with the direct participation of the people, a new constitution. this new constitution, presumably, will be free from the coloniality of power that has ruled our social life since the conquest, will transform deeply the social relations based on gender, race, class, and sexual oppression that evolved from coloniality and the capitalist order, and will return sovereignty to the people. as with the other so-called decolonial processes of the region, much is expected of a new magna carta. in honduras it appears sometimes that it has become the mantra of the resistance movement. to date, writing a new constitution is the sole strategy and is what defines or constructs the political philosophy of the movement. the magna carta would not only re-codify the social in the writing of a set of laws and thus become something like a social justice scripture; it would incarnate the new social contract that brings about decolonization, as it would be written from the basement of society, and not from its heights as in the past. basically, it would write decolonization into law. it would restore the freedoms stolen from the colony that had become reserved only for the colonizers (internal as well as external) and make them the law, make them the new reason of state. the state, then, as in other countries of the latin american left, is visualized as the main actor and the constitution is seen as the main vehicle for the refoundation and decolonization of society. i suspect, though, that the constitution, being primarily a legal document, is attributed social powers that it probably is not able to deliver. this is something of which there is awareness, but more so at the grass-roots level than at the top level of the national leadership which may see in the constitutional assembly a political opportunity for themselves. at the ii encounter of the resistance front for the refoundation of honduras in march 2010, some of the delegates representing the different provinces (or departments) reminded those present that the constitutional assembly was not merely a legal issue; in fact, they noted that this attempt to build the constitutional assembly was a way of negating the priority of the juridical, and that ultimately the goal is to develop practices that are external to the state and that lead to its abolition. so there is clearly an awareness of the limits of the constitution already and a desire to build a society not constrained by the framework of the state in some sectors of the resistance front. yet reforming the constitution has a particular urgency in honduras not only because the existing constitution has been used to preempt any meaningful participation of the people in shaping the life of the nation, but also because the constitution was used as a prompt to execute the coup. from the oligarchic point of view (of the golpistas), the coup was meant to preserve the integrity of the constitution; the coup represented a way to solve a constitutional crisis brought about by the attempt of zelaya to ask the population if they wanted a constitutional assembly. the de facto regime of micheletti put in place after the coup was deemed a “constitutional succession” to legitimate the coup. so the constitution is at the center of the dispute here. in honduras legal discourses and constitutional legalese became absolutely central to instantiating and legitimating the coup, and the constitution assumed a pivotal position in the battle of the resistance front to obtain power. i am not a legal scholar, but i think there are a few things one can observe about the centrality of law to the execution of the coup, and the fetish character that the constitution seems to have in honduras. it has this character for the right, certainly, but also, to some extent, for the left as well, as long as it remains the sole strategy of the resistance movement. the use of the law to garner sovereign power, either to create legal guidelines fabricated for the occasion, i.e., to usurp power in the case of the coup or to reconstruct the power of the people by writing a new constitution in the case of the resistance front, is at the heart of this struggle. the coup revealed for me at least two things in relation to what i would like to call the perversity of the law. first, that the local oligarchy and the us pentagon could wield their power by securing a form of governmentality that was lawless and unaccountable, that is, by suspending the law and effectively replacing it with military codes, yet all the while doing this in the name of the law. the coup and the nullification or derealization of the law inflicted an injury to the sovereignty of the people that is considered by the majority of hondurans to be unbearable. furthermore, the legitimation of the coup later by sham elections meant that the state attained an indefinite power that can now be used to suspend and fabricate the law at will. a logical conclusion is that the only way to recover the sovereignty of the people is through the reestablishment of the rule of law through a new constitution. this is the conclusion the resistance movement has drawn. it must recreate the law by writing a new constitution. the problem though is that the oligarchy considers the constitutional assembly outside of the purview of its own power, an illegality. they have created a rhetoric that justifies their raw power in the name of legality and constitutionality. this sounds nonsensical but that is the logic of the state of exception. the oligarchy circumscribes the domain in which political speech and political subjectivity can be identified only with itself. it believes it has the prerogative of power and will not accept any questioning of this presumption. in their eyes, manuel zelaya rosales’ alliance with the social movements of the poor and his attempt to call for a constitutional assembly represented a grave transgression that could only be met with a coup and a state of exception or the suspension of all law and the oligarchic assumption of absolute sovereign power. but on the other side of the political spectrum, the constitutional assembly is thought to recuperate the sovereign power back to the people. the constitution would create the necessary condition to express the political agency of the people. the constitution is used tactically too, as the constitution would establish the legitimacy of the resistance front within a legal framework that would be ensconced in state form. maintaining the state form could make the resistance front redeemable to others in society that stand in opposition—the law would make it right, even when it may imply a normative reorientation of politics. it would call for a new political game in town, one in which the resistance front becomes the most important political contestant. so the coup and the suspension of the law has made the resurgence of the sovereignty of the people ever so urgent, but it also has put in place the rules of the game that the resisting, opposing forces must use to gain power. the law is all about power, state power to rule over a population. secondly, the coup unveiled the plasticity of laws by making palpable how the law can be used to break the law and how easy it is to contort the law. more than ever, the law revealed itself as a tactic or an instrument to heighten the power of the state, but curiously enough, at the moment of its suspension. by using legal discourse and legal tactics, and military tactics to justify the coup, the state form that emerged from the coup became a state that is undone; a state that is disarticulated into a set of repressive powers that exist outside of the apparatus of the state itself. thus paramilitary special forces, organized crime, and us military bases now form the real branches of the state and are the sites of political power for the local oligarchies. that is why hondurans experience the coup and its aftermath as a total collapse of the legal system and have been overcome by a sense of total defenselessness. one could say that honduras subsists today in an extra-legal field (this can be seen also by the non-recognition of the coup regime by the international community, its expulsion from the oas, and its pariah position in international bodies) and that the coup state of president lobo is a state form that relies on extra-legal power. it is a state that can only survive by the conflation of law and violence, which is why it is not surprising that the last supportive move the us state department made towards honduras was to provide more police and military aid (knowing very well that these resources are being given to the perpetrators of most of the human rights violations that have occurred since the coup). ironically, it would seem then that in countries ruled by deep-seated social injustices and overt conditions of coloniality of power like honduras, legalism, law enforcement, and constitutionalism provide the best platforms to suspend the law and disenfranchise oppressed people. this may explain why the resistance movement has chosen the constitution as its sole strategy, but this is also why we need a new configuration of power and a new theoretical framework, a revision of the models of thinking and exercising power that can break the empire of law in its current form. curiously, the magna carta widely viewed as the most important document in a democracy evolved from the same legal traditions and political cultures from which the left and decolonialism seeks freedom. decolonialism purports to transcend liberal and representative democracy in favor of direct democracy and to recover local traditions of coding the political (dussel, 2008). i am not sure if recovering the political forms of liberal and representative democracy that have historically ensured the rule of the powerful is the best way or if direct democracy is best served through constitutions. this means that i am not necessarily arguing that the front’s strategy of re-writing the constitution is a bad choice. i hope i have made myself clear enough. my point is merely that we should not expect too much from a constitution or a legal document codified in writing, in spite (or perhaps because) of the hopes placed therein by national-level leaders of the front. perhaps it is relevant to remember that constitutional traditions have been used to inscribe exclusion, even those that have been written as part of emancipatory processes (like the us constitution that excluded blacks and women). constitutions as documents that enact the (re)foundation of the nation (or nation-building processes) can and have re-codified colonialism in creative ways. this has happened even in the most recent constitutions passed in countries undergoing the turn to the left. so it is important to ask who masters the process. it is important to ask the feminist question: can the masters’ tools dismantle the masters’ house (lorde, 1984)? can the constitutional assembly dismantle oligarchic power? one would say that the difference of today’s conception of a decolonial constitution is that the constitutions would emanate from the people themselves and not from constitutional lawyers and political parties of the ruling class. the people would not delegate their powers to a separate political body, a political body that is separated from the community. political bodies would be embedded within and constituted by the community, and a process would be established guaranteeing that it is the community that dictates the content of the constitution. this is the meaning to the term “poder constituyente”, a process whereby the delegates of the people in charge of writing the constitution would obey, in an unmediated form, the power of the people. or, as the zapatistas and decolonial intellectuals might have it, leaders enact change by “mandando obedeciendo” (ruling by obedience). but if this is the case the political process of generating the constitution is more important than the document could ever be. instead of being a petrified codex that regulates social relations, the constitution should be regarded as an unfinished product, fluid, always subject to change, always negotiating the unfixed character of the social. the constitution cannot be an end in itself, but should be more a means to arrive at the power of the people, a way to build popular power that resides at the level of the community and not at the level of the isolated juridical individual or atomized citizen that participates in an election to cast a vote and gives up her or his own power to a political body that stands for and above her or him. but, most important, i think the constitution should be an open book without margins or limits, always finding the gaps, the cracks, the spaces to negotiate, to transform, to transgress, to transcend the juxtaposition of different and antagonistic social positions that always are there, that always are part of the complexity of the social. the constitutional process should be neverending, always a process, never a book in the hands of politicians and lawyers and state institutions. it should be a civic process always belonging to the people, never leaving the community, simply there as a process, always helping us to deal with the tragic situation of making incompatible points of view (the oligarchic point of view, the imperialist point of view, the feminist point of view, etc.) where no concession or compromise seems to be possible because they all claim a social reason, somehow comprehensible, apprehensible, negotiable, recognizable, reconcilable. if we are to reexist socially or recodify our social relations, what is irreconcilable must be accounted for, must be dealt with. social justice cannot be decreed. i think ‘the community’ or the notion of ‘the people’ needs some reflection at this point, because it seems as if the irreconcilable is already included, or that ‘the community’ is ‘the community minus the irreconcilable.’ it would seem that the irreconcilable is outside of the community, and therefore is indigestible or impossible to metabolize. first, we must make a stop and think of the concept of ‘the people’ as used by the resistance front and many other social movements of the left. the concept of the people seems to presuppose a counterhegemonic bloc (or a community of resistance, always a counterhegemonic bloc) that has already harmonized the internal contradictions based on gender, race, class, and sexual differences, or at least be so far along in the process that the counterhegemonic bloc that emerges in history as ‘the people’ represents a community of resistance that has become indivisible (particularly towards the external irreconcilable). it has understood the universality of all struggles even as they express themselves in particularities. it understands that the social suffering of women and lgbt people is as unjust as that of the indigenous peoples, garifunas, peasants, union activists, etc., or vice versa. in other words, the counterhegemonic bloc would have unlearned the habit of creating hierarchies that value some oppressions over others or that deny their existence completely. it has developed social technologies that arrest the development of differences inside the counterhegemonic bloc that divide the people. in feminist terms, the people or the counterhegemonic bloc will have learned to think in terms of the intersectionality of the coloniality of power: that is, understood the way external and internal colonization converged historically to create systems of power that act simultaneously and determine each other to create exclusion and subordination in some, and privilege in others. it must have concluded that just as the idea of race was essential to divide and debase us in the process of colonization and to help construct social class in the colonial/modern capitalist order, so too was the creation of gender and heteronormativity. the counterhegemonic bloc will have, in other words, made intersectional politics its logic of power to preempt phallogocentric and heterosexist coding in the constitutional process as in the codex itself. it will have thought the ways to preempt mestizaje or any racial construction from becoming the hegemonic norm that discriminates against the indigenous peoples and the afro-descendent (and other ethnic groups that make up the nationality like arabs, chinese); but it also has begun to think more creatively about how to conjugate the diversity or the mestizaje that evolved from colonization without having to revert to ideas of authenticity or essentialist and romanticized ideas of the pre-colonial past that serve to create new differences, new dualities, and new hierarchies and exclusions between the indigenous (or pueblos originarios) and the non-indigenous peoples. of course this concept of the people or the counterhegemonic bloc as deployed by the resistance front (largely taken from the popular left and the decolonialism of dussel)[footnoteref:5] may be presupposing too much (dussel, 2008). to demand a coherent discourse or a feminist understanding of the way power is constituted and the way it complicates the formation of counterhegemonic blocs free of internal contradictions is to ask far more from the present political process and its transitional character than it can provide. but it should enter the debate more and more as tensions build in certain sectors of the resistance movement. [5: the concept of the people is central to dussel’s philosophy of liberation and politics of liberatiion. feminists have found his use of the concept of the people too male biased. see mendoza (2010a).] feminists in resistance are a case in point. feminists in resistance form part of the executive and political committees of the front and they have made several attempts to have their agenda included in the vision that the front slowly constructs in their documents and public declarations. yet their viewpoints are systematically omitted and their contributions silenced. in honduras this is important, as women compose the majority of the front and have become a special target of the terror of the state. six women are killed in honduras on a weekly basis. as i write these pages, feminists in resistance reconsider if their efforts would be better used outside of the front. tensions between feminism, governments, and left social movements are to be found throughout latin america. for instance, some feminists resist the notion of gender complementarity used by many indigenous movements, and question the validity of concepts such as lugones’ ‘coloniality of gender,’ arguing that presupposing that gender did not exist in the pre-colonial past bypasses the gender oppression existing today. indigenous movements and others critique the urban, white-mestizo dominance of feminist movements, and the staunch liberalism of gender equality advocates who are seen as too devoted to legal reforms, or who have become too institutionalized. all these contradictions counter the internal cohesion presupposed by a unified concept of the people and the counterhegemonic bloc. a unified concept of the people or the counterhegemonic bloc does not necessarily recognize all forms of social suffering that occurs inside of it, even though this is necessary to achieve a most just society. but it must also deal with that other irreconcilable, that external other: the hegemonic bloc, the oligarchic power, the imperialist bloc that can have the face of a woman as well as the face of a man, the face of a black man as well as a white man, the face of the working class as well as the wealthy, the face of the indigenous as well as the mestizo, the face of the queer as well as the heterosexual. we cannot elude this. the contradictions live within us and we must find a way to understand them, unlearn them, undo them, make them part of the constitutional process. quijano and others have claimed in the recent past that we in latin america have already developed new forms of social existence that are free of domination based on race, ethnicity, and even gender, albeit in incipient form (we are still learning) (quijano, 2007). we have produced new communal ways of living by creating new political systems, based on an understanding of freedom and autonomy of the individual as expressions of our social diversity and solidarity. we are learning to decide democratically what we want to produce using modern technologies wisely; expanding notions of reciprocity in the distribution of labor, goods and values etc. of course this very powerful and audacious way of describing latin america contrasts with another reality that co-exists with all this social experimentation: feminicide, increased homophobia and transphobia, organized crime, the highest crime rates in the world, violent gangs, human trafficking, mass migration etc. in honduras, as said, six women are killed each week, and according to the united nations the country has the highest crime rates in the world with 82 murders per 100,000 inhabitants (unodc, 2010). venezuela, a leader country in the “socialismo del siglo xxi” has also one of the highest crime rates in the region. so experimentation with new social practices that have the capacity to reverse the coloniality of power run parallel to ongoing senseless, and sordid, violence in everyday life. this demands that we see these new social practices in their full-blown context and complexity. in the particular case of the feminists in resistance in honduras, we know it will not do to simply insert articles in the new constitution that contain a feminist agenda to end violence against women, gender wage gaps or the like. before that can ever happen, we will have to develop political methodologies that train feminists and non-feminists alike to see the particular issue of gender oppression as a universal question—to reveal what the particular struggle of women has in common with all the other struggles, and to persuade others that the fight against the patriarchalism that operates in all dispositives of power is inescapable in the strategies of all the social movements that compose the resistance front. feminists will have to create a politics of alliances with non-feminists. it will have to go beyond our limits. many of the politics of the left have failed to understand the dialectic between universality and particularity. the men of the left have often appropriated universality as they self-appoint themselves the universal norm of all struggles, excluding and denying the feminine and the feminist and, in the act of doing so, erasing their own particularity. feminists themselves participate in their exclusion by articulating their social condition in a language of particularism and thus repressing their own universality. these positions of men and women cancel out mutually and allow that unjust relations of gender, class, race and sexuality reproduce ad infinitum. political alliances in these circumstances are difficult to generate (mendoza, 2010b). but embracing a politics of intersectionality as part of the core strategy of the resistance front might help begin tackling the contradictions at the heart of the counterhegemonic bloc. the politics of intersectionality might be a good strategy to guide the constitutional process. not doing so might doom us to failure or simply enact a parody of power that will bring us back to zero. references escobar, arturo. 2010. 'latin america at a crossroads', cultural studies, 24: 1, 1-65. online publication date: 12 january 2010 http://www.unc.edu/~aescobar/text/eng/escobar.2010.culturalstudies.24-1.pdf dussel, enrique. 2008. twenty theses on politics. duke university press: durham, nc. · · golinger, eva. 2009. us military aggression against venezuela. blog post from 21 december 2009. available at: · http://tonyseed.wordpress.com/2009/12/21/u-s-military-aggression-against-venezuela-escalating · · lorde, audre. 1984. sister outsider. the crossing press feminist series: boston. lugones, maria. 2007. ‘heterosexualism and the colonial / modern gender system’, hypatia, 22: 1, 186-209. maldonado-torres, nelson. 2008. against war: views from the underside of modernity. duke university press: durham, nc. mendoza, breny. 2010a. ‘la epistemologia del sur, la colonialidad de genero y el feminismo latinoamericano’, in aproximaciones críticas a las prácticas teórico-políticas del feminismo latinoamericano, vol. 1. yuderkys espinosa miñoso (coord.). en la frontera: buenos aires. mendoza, breny. 2010b. ‘reflexiones teóricas para un movimiento feminista de la no-violencia’, centro de estudios de la mujer-honduras: tegucigalpa, honduras. quijano, anibal. 2007. ‘des/colonialidad del poder: el horizonte alternativo’. available at: http://praxisdigital.wordpress.com/2011/01/22/descolonialidad-del-poder-el-horizonte-alternativo-anibal-quijano/ unodc. 2010. homicide statistics. available at: http://www.unodc.org/unodc/en/data-and-analysis/homicide.html. ________________________________________________________________ 16 ________________________________________________________________ 1 book review welsh book review ______________________________________________________________________________ feminists@law vol 3, no 2 (2013) ______________________________________________________________________________ peter squires and john lea (eds), criminalisation and advanced marginality: critically exploring the work of loïc wacquant, the policy press, bristol, 2012, 272 pp, £70 isbn: 978-1-44730-001-4 (hb) lucy welsh( in this edited collection peter squires and john lea assemble a series of papers which originally formed part of the symposium on advanced marginality that took place in 2009 at the university of brighton. the book uses a number of themes to develop wacquant’s best known work on theories of marginality, paying greatest attention to his most famous works, urban outcasts: a comparative sociology of advanced marginality (2007) and punishing the poor: the neoliberal government of social insecurity (2009). while is it is clear that the contributors to this book are broadly persuaded by wacquant’s work, the themes used serve to expand the theory of advanced marginality into areas that have been somewhat neglected – including issues of agency, resistance and attempts to re-focus the issues away from the north american penal state. the authors have therefore used a significant range of examples – from markus-michael müller’s examination of policing and penology in latin america to denise martin and paula wilcox’s analysis of women and the uk welfare state – to push the boundaries of wacquant’s work. the contributors do not necessarily disagree with wacquant’s interpretation of neo-liberal state-craft as producing a disenfranchised precariat section of society who are, to an extent, at the mercy of state authority. however, the book is successful in highlighting areas such as resistance and agency which require further analysis to understand the relationship between the centaur state which is ‘liberal at the top and paternalistic at the bottom, which presents…a caring visage toward the middle and upper classes, and a fearsome…mug toward the lower class’ (wacquant, 2010: 217), and the citizens it is said to produce. lynda measor’s chapter on cultures of resistance and gender is particularly adept at examining the way in which wacquant has presented ‘a picture of the “assistantial” classes as a deprived people flattened by brutal circumstances that fix them in place. they are a colourless, uniform group’ (2012: 135). her empirical work serves to highlight the micro-level relationships that enabled ‘welfare mothers’ (measor, 2012; 143) to mobilise resistance to their ‘othering’ (measor, 2012: 143). measor notes how, via small acts of insubordination, the marginalised can begin to speak and to challenge socio-political power. measor’s piece also provides an example of what appears to be another theme in this work – the use of empirical work to support wacquant’s ideas. this enables the contributors to identify tensions and contradictions in neo-liberal penal policy and means that the work is undoubtedly rooted in social science methods of analysis. for example, lynn hancock and gerry mooney note the ways in which the mass media fetishises the ineffectual precariat as the cause of social breakdown via television programmes such as the fairy jobmother, while squires considers the relationship between marginality and geographically located violence. the book is also theoretically informed by, for example, john rodger’s examination of the de-civilising process through a wacquant-ian lens and müller’s examination of the ‘particular’ and the ‘universal’. thus the book brings together both theoretically and empirically informed work to broaden the understanding of theories of advanced marginality. this book comes at a time when the credibility of neo-liberalism as an ‘ideology’ is coming under increasing scrutiny yet, aside from a relatively brief discussion of peck’s (2010) analysis of the practices of the left and right hands of the state (in which the left part of the state believes that the right does not understand and has no real interest in what the left is doing), the concept of neo-liberalism as a distinct political agenda is given relatively little attention. however, at the heart of the work, one gets the sense that the key theme is resistance – of highlighting some of the contradictions brought about by self styled neo-liberal practices which may serve as a basis for testing the ‘ideology’ as a whole. personally, wacquant’s analysis of how recent political practices have served to segregate and discipline the precariat class is persuasive. this book demonstrates how that understanding of state agencies’ practices beyond penal authorities acts to reinforce the segregation of those who lack social mobility, but also notes pockets of resistance among the segregated groups. that said, there are, perhaps, greater issues at stake which merit further consideration. the book makes certain assumptions about the very existence of neo-liberalism and the role that the academy has in exposing its practices which ultimately reinforce class based divisions. bell (2011) notes how wacquant assumes that punitiveness is inherent in neo-liberalism, while also acknowledging that social welfare expenditure has actually increased alongside spending in relation to criminal justice in recent years. bourdieu (2001), of whom wacquant was a student, has noted the role of the academy in the gradual circulation of neo-liberal ideas via journals, such that those ideas came to be taken for granted, and were taken up by the media in processes that he describes as ‘symbolic inculcation’ (2001: 29). this, in turn, gave neo-liberalism its sense of inevitability. one begins to wonder if, rather than highlighting the effects of so-called neo-liberal policies as happens here, a wholesale review of the very assumptions made about what characterises neo-liberal practice is required. as bourdieu says: one of the theoretical and practical errors of many theories…has been failure to take account of the power of theory. we must no longer make that mistake. we are dealing with opponents who are armed with theories, and i think they need to be fought with intellectual and cultural weapons (2001: 53). again, however, bourdieu assumes passivity on the part of those subject to the inevitability of neo-liberal theory and practice. the concern remains however that, by looking to effects rather than deconstructing the theory itself in the way that those such as peck (2010) and dean (2009) are doing, attempts are being made to clarify neo-liberalism and thereby inadvertently strengthen its status as an ideology. there can be no doubt that this book synthesises a range of materials to demonstrate processes of marginalisation that have occurred in a number of settings, and does so in a stimulating, theoretically informed and empirically sound way. wacquant’s own work is persuasive and the contributions to this volume only add to the ways in which his broad principles can be applied across a number of different social settings. the greatest strength of this book seems, to me, to be that its focus on processes of marginalisation brings issues of class into focus – and thus acts as an example against the concerns of those such as sveinsson (2009) that class has become a neglected area of study. references bell, emma. 2011. criminal justice and neoliberalism. basingstoke: palgrave macmillan. bourdieu, pierre. 2001. acts of resistance: against the new myths of our time. cambridge: polity press. dean, jodi. 2009. democracy and other neoliberal fantasies. communicative capitalism and left politics. durham nc: duke university press. measor, lynda. 2012. loïc wacquant, gender and cultures of resistance in squires, peter and lea, john (eds) criminalisation and advanced marginality. critically exploring the work of loïc wacquant. bristol: the policy press. peck, jamie. 2010. zombie neoliberalism and the ambidextrous state. theoretical criminology 14: 104. sveinsson, kjartan (ed). 2009. who cares about the white working class? london: runnymede trust. wacquant, loïc. 2007. urban outcasts: a comparative sociology of advanced marginality. cambridge: polity press. wacquant, loïc. 2009. punishing the poor: the neoliberal government of social insecurity. durham nc: duke university press. wacquant, loïc. 2010. crafting the neoliberal state: workfare, prisonfare and social insecurity. sociological forum 25(2): 197. ( phd candidate, kent law school, university of kent, uk. e-mail: l.welsh@kent.ac.uk ______________________________________________________________________________ 4 ______________________________________________________________________________ 5 feminists@law vol 11, no 2 (2023) _______________________________________________________________________________________ alisa zhabenko babushkas _______________________________________________________________________________________ feminists@law vol 11, no 2 (2023) _______________________________________________________________________________________ babushkas between lesbian-headed families and the russian state: making an intelligible model of extended mothering alisa zhabenko[footnoteref:2]* [2: * doctoral candidate, gender studies, university of helsinki, finland. email alisa.zhabenko@helsinki.fi. this article was written during my time as a researcher in gender studies at the university of helsinki as a part of the academy of finland-funded project ‘contrasting and re-imagining the margins of kinship’ (1 september 2016 31 august 2020, grant number: 297 957, dir. antu sorainen). i am grateful to the corekin scholars, with whom i worked in close contact while writing this article: antu sorainen, heidi härkönen, anna moring and anna avdeeva. i also want to thank tuija pulkkinen, j jack halberstam, thomas strong, elisabeth l engebretsen, davina cooper, didi herman, paul boyce, ulrika dahl, joanna mizielinska, vanessa l fuller and anna heinonen for their insights and comments. i am grateful to all these scholars and research communities for providing a supportive environment to my work. ] abstract this article focuses on a significant kinship character, babushka, the grandmother, in russian lesbian-headed families. based on an original empirical multi-method study, the research analyses the building of relationships with grandmothers in lesbian families in contemporary russia. as the core element of russian kinship – marriage – is missing from this kinship scene, blood relations between the biological mother, the maternal grandmother, and the child seem to become a central, although a highly complex element, in building supportive relationships in lesbian-headed families. grandmothers from the non-biological mother’s side remain less visible in everyday negotiations and decision-making than biological grandmothers. the argument here states that blood relatedness becomes meaningful in situations where the grandmother’s role in lesbian-headed families is recognised and challenged in the officially anti-lesbian state context. extended support mutually provided by grandmothers and their lesbian daughters creates an intelligible model of female-maintained family in current russia, even when the legal landscape (i.e., the enforcement of the ‘anti-gay’ legislation in 2013) is not in the favour of such families. consequently, babushkas become a “shield” between the state and the lesbian families as they provide a socially and culturally legit “traditional family” surface, required for survival in the state which promotes women’s reproduction as a core value in the society. keywords lesbian families, kinship, grandmothers, queer parenting, russian mothering introduction: legal repression and lesbian families in contemporary russia in this article, i open a discussion on the role of grandmothers within lesbian-headed families in russia under the recent oppressive societal and legislative changes, on their place in the communication between lesbian families, the legal sphere, and the state after the enforcement of the so-called anti-gay laws in 2013 (see below for details) as well as in the broader context of the larger history of russian family developments. i am looking at how the current alliance of lesbian mothers and grandmothers is attached to and becomes seen by the russian state as an intelligible, culturally rooted model of the so-called female-maintained family (buvinic and gupta 1997) with extended mothering, where babushka – the russian grandmother figure – is providing crucial help for the mother, sometimes along with another female kinfolk. this transformation influences the visibility and legitimacy of lesbian-headed families, providing a certain “shield” from the anti-lesbian state and from the negative societal attitudes against lesbian-headed families in russia. however, the transformation from an independent lesbian family to the complex alliance with grandmothers did not happen without obstacles inside the discussed union. it connects to the broader history of the extended family in russia, in particular to extended mothering within the russian family history (e.g., rotkirch 2004), to female-maintained families, and to the drastic legal, political and ideological changes during vladimir putin’s autocratic regime, along with the strong support from the highly influential (socially) russian orthodox christian church. i will further explore the relationships of grandmothers in lesbian-headed families, based on my original empirical research in russia. in doing so, i will give examples from my data on how the relationships between lesbian mothers and the babushkas are organised and imagined by different parties, what the building of these bonds requires and consists of, and what strategies lesbian mothers apply to coordinate grandmaternal care in their families as smoothly as possible. i will conclude by discussing the disturbing situation of such “outlaw” families and the “chosen” kinship in an oppressive post-socialist legislative and social context where the actual parenting must rely on legitimate kinship roles in order to survive. in these situations, i argue that the blood ties between the biological mother, the child, and the biological grandmother may become a strong argument for hierarchies as who counts as a proper relative, or from whom family support is primarily expected. russian law, kinship and the babushka russian law operates around kinship by drawing on the category “kinship by origin” that is stated in the article 1147 of russian federation civil code (rfcc)[footnoteref:3] (kirichenko 2007: 25). this category in rfcc extended the category “kinship by origin” from only “kinship by blood” to “kinship by social origin” which kirichenko defines as “the bond emerging owing to the origin of people which has not biological but social character” (ibid: 25).[footnoteref:4] [3: russian federation civil code (part 3) from the 25th of november 2001 № 141-fz (eds. from the 18th of march 2019), article 1147, clause 1: “in case of inheriting by the law the adopted person and his/her offsprings from one side and the adoptive parent and his/her relatives from other side equate to relatives by the origin (blood relatives)” (rus: ”при наследовании по закону усыновленный и его потомство с одной стороны и усыновитель и его родственники с другой приравниваются к родственникам по происхождению (кровным родственникам)”).] [4: however, kirichenko (2007: 23-24) claims that the contemporary russian law (and society) attaches importance only to those bonds that take place in practice. she calls this “biological-volitional kinship. kirichenko follows palastina (1973), who states that to establish the kinship of a child, its biological relatedness to the mother and the father is taken as proven if they are married. if they are not married, then the child’s relatedness to the father is established through biological understandings of kinship, that is, relying on the validation of the mother (to prove his paternity). this validational character of relational bonds appeared in the 1995 russian family code, clause 3, article 52.] to open the grounds for my discussion on the complex support and communication relations of lesbian mothers and babushkas in their families and between the russian state, it is important to note that while the russian word “babushka” literally translates as grandmother, the research shows a bigger variety of meanings and reference fields of babushka in russian families. for example, sternheimer (1984) claims that babushka in the soviet union could either be a grandmother, a child minder, or a housekeeper. to contrast and to further complicate this view, shadrina’s (2019: 66) recent work discusses the babushka as a resourceful female kin identity category in russia, arguing that the social position of the babushka has “institutionalised expectations and norms in relation to older women in russia”. this refers, among other issues, to the provision of help for young mothers, as well as the care of grandchildren. my discussion is not only about the complexity of cultural or social attitudes and expectations around the babushka in lesbian-headed families, but also inherently related to an important recent change in the russian legal landscape. by this, i refer to the 2013 enactment of the russian federal law on “propaganda of non-traditional sexual relations among minors” (known in the english-language media as the “gay propaganda law” and the “anti-gay” law[footnoteref:5]), that bans the represention of a positive image of lesbians and gays to minors, and therefore making the raising of minors in lesbian families potentially illegal (see zhabenko 2019). [5: article 6.21 federal law no. 195-fz of 30 december 2001: ‘code of administrative offences of the russian federation’ (as amended on 12 february 2015) [rus: федеральный закон от 30 декабря 2001 г. no 195-фз «кодекс российской федерации об административных правонарушениях» (действующая редакция от 12 февраля 2015 г.) (see also johnson 2015).] after the so-called “anti-gay” law had passed on the federal level in 2013, for a long time, lesbians were very worried about their families and future reproductive decisions. they thought that this law would work against them because they were (or would be) raising minors in their families, and thus potentially seen as ‘guilty’ for influencing the positive representations that these minors would gain on the “image of lesbians” (zhabenko 2019). this means that since the initial shock, the 2013 oppressive legislation has continued to influence the lives, perceptions and future expectations of russian lesbian parents. further, after the 2013 law change, and significantly because of it, it has been a common feature amongst russian lesbian mothers to continuously consider immigrating to europe, the united states or canada (zhabenko 2019). after a period of a more liberal atmosphere from the early 1990s to 2010s, a turn towards more anxiety caused by this 2013 oppressive legislative turn was evident among those russian lesbian mothers that i worked with while conducting fieldwork between 2010 and 2017 on russian lesbian mothers. in light of my field research experience, it seems fair to say that russian lesbian mothers rapidly moved ‘back to the closet’ following the 2013 anti-gay law enforcement (zhabenko 2019). my interviewees became much more cautious in terms of their willingness to share any family information in the context of the increasing social hostility towards lesbian families in russian society. they were also more worried than before the 2013 law about dealing with and renegotiating their everyday family contacts with the outside world, particularly in relation to the role of the non-biological mother in situations such as regular visits to the paediatrician or picking up their child from school. what is more, the 2013 change in the legal and social climate around lesbian families in russia impacted the parental families of lesbian mothers. in this sense, the law also placed babushkas in lesbian families both socially and practically in an ‘illegal’ position, since they could have been thought to participate, in the law’s terms, in the “spreading of homosexual propaganda amongst minors” if they openly helped their lesbian daughters to raise their minor children. in this way, through the existing russian kinship patterns, that is, through the culturally intelligible and assumed grandmaternal support model in woman-maintained families, the 2013 law came to concern a much larger group of women kin folks in russia than just lesbian mothers – in particular, middle-aged and elderly women with lesbian daughters.[footnoteref:6] in this precarious situation, the significance, status and position of those grandmothers who did not have a blood connection or a legal bond with their grandchildren, also became an important – and so far under-researched – issue.[footnoteref:7] [6: for clarification: russian women give birth quite early, approximately at the age of 20 to 25 years old (scherbakova 2017); consequently, the babushkas that my interviewees referred to were at their 50s.] [7: in this article, i am following the ethnographic and queer/feminist scholarly works of sarah franklin (2013) and jenny gunnarsson payne (2016) and their discussion of blood connectedness as biogenetical connectedness. franklin (2013: 292) notices that ”blood continues to be a paradigmatic substance for kin connection in europe.” in my own research, my interview-partners did not talk about “blood”, but expressed the blood connection implicitly as the relatedness that matters: they used the word “relatives” (rodstvenniki) and assumed that a biological mother is a person who gave birth and conceived from her own egg.] russian family constellations through a late-soviet historical perspective during the soviet era, elderly people occupied a symbolical function as mediators between what was perceived as a ‘traditional society’ and the soviet union with its radical project of modernisation (lovell 2003). given the highly intense political changes in the soviet period, expectations towards and the (self)presentation of babushkas in the soviet union shifted. not unlike the discussion about the reference field of the term babushka in modern time has many diverse views, also research on the role of babushkas after the revolution provides us variegated views. for example, romashova (2015) claims that in the 1920s and 1930s, the women who were active as babushkas during the early soviet period were considered by the state as emancipated and somehow rebellious. to contrast this, tiainen (2013) and kelly (2007) state that the role of babushkas was quite the opposite: they were the providers of traditional and conservative social values. generally, the discourse on the babushka changed before the second world war because of the needs of the new soviet state under stalin’s regime: stalin’s revised family policy required babushkas to assume a role as active family members and family care providers. during the mid-soviet era, influenced by the pension reform of 1956 (baskakova and baskakov 2001), babushkas also became the providers of financial help: their pension money was used for young families’ needs, which in rural areas was often the only money available. the role of the babushka thus became an important part of the state’s professionalised stance, a part of the official discourse, and a supportive tool for installing the “working mother” gender contract (romashova 2015; clarke 2000; shadrina 2019). this ‘contract’ meant that the stalinist soviet state expected mothers to combine their working duties with parenting (temkina and zdravomyslova 2003). the shortage of housing in the 1950s and 1960s influenced on the stabilisation of the extended families living arrangements: babushkas often lived together with their children and grandchildren and were involved in the everyday family care duties (shadrina 2019; semenova and thompson 2004). later khrushchev’s housing reform radically changed the housing situation: between 1972 and 1979, the number of young couples who lived with their parents declined by almost eight times (šlâpentoh 1989). however, in the early 1980s, still 41% of babushkas cared for their grandchildren under 3 years old, and 61% helped their children with domestic chores (šlâpentoh 1989, 170; ruzhzhe et al. 1980: 53, 57). the former nuclear pattern of the russian family that started in the 1930s was “the side product of stalin´s industrialisation and related tendencies of the individualisation of private life” (rabzhaeva 2004: 93). as such, some household types were separated, although the care and economic networks remained (or returned to be) shared between households according to the blood logic of kinship. this appears to represent a steady trend, since the level of co-residence remained quite high in russia: in mid-2000s, around 30% of all households were multigenerational (prokofieva 2007). this trend correlated well with the official neo-traditional ideological turn in russia and with the growing state propaganda of “traditional values” (pecherskaya 2013; pronkina 2016; sorainen et al 2017). the trend towards the denuclearisation of russian families (zaharov and churilova 2013) indicates a return to extended families, given that different generations of relatives are once again becoming tightly connected, even if their households are separate (however, see avdeeva in this issue on how certain russian heterosexual resourceful families choose mothering tactics which suggest a simultaneous reversal of nuclerisation). in this context, russian grandmothers continue to provide practical help as well as important care and support of different kinds to their daughters’ families. specifically, they stay with the children to give the mothers some free time; they help with some parenting duties and at times also support their daughters’ families financially (sorainen et al. 2017). generally, in the sphere of russian motherhood, there exists a shared cultural memory and a collective understanding about the history of how to distribute care-related duties between the members of extended families. grandmothers in recent soviet history served as the almost primary caretakers and the exclusive childrearers in the family, since mothers worked, and many fathers were absent (semenova 1996). but if we think about the expected participation of men in the family, we have to keep in mind that the “absent father” has a long history in the context of the soviet family (kon 2003; klecina 2009; khitruk 2013).[footnoteref:8] the term “absent father” in russia refers to a father who was not practically involved in a child’s everyday life or who lost contact with his child(ren) following divorce (klecina 2009). an absent father, thus, implicitly refers to a man who has no psychological nor social contact with his child(ren). kon (2003, 271) adds to this definition a pedagogical incompetence of fathers, as well as a disinterest and an inability of a father to parent, particularly in terms of caring for babies and small children. despite the variegation of its definitions, the concept and history of the absent father in russia diminishes the pressure to have a father in the family. [8: more about the influence of absent fathers on russian families and mothering, see avdeeva in this issue; for more information on the topic of contemporary fatherhood in russia, see lipasova (2016).] grandfathers have also not represented active caregivers under the cultural tradition whereby men in russia might have served as the primary breadwinners in the family, but still stayed away from the actual childcare (lipasova 2016). also, since the liberation era, the early 1990s, grandmothers remained more involved in caring for grandchildren than grandfathers in russia, given the cultural tradition and legacy of the intergenerational female-maintained family, working mothers, the insufficient state day-care system, and men’s high rate of alcoholism-related mortality (utrata 2008, 2015; saburova et al. 2011). parenting practices in russian extended families, thus, have a long history of being run by women of different generations – that is, by mothers and grandmothers, and sometimes also with the help of other female kinfolks. as noted above, lesbian-headed families as families with matrifocal connections (see härkönen in this issue) enjoy a degree of cultural and social legitimisation through the repetition of or a certain attachment to the socially recognised care practices, which involve only mothers and grandmothers in the family. the russian state also positively views and recognises the sharing of care relations between the mother and grandmother in the family, a model that enjoys societal visibility. within this framework, relationships with grandmothers in russian lesbian-headed families are the most crucial area of negotiation regarding support and assistance in everyday parenting. however, the perception of what forms the grandmother’s legitimate role in the care of children has shifted throughout history, along with significant contingencies related to other political and discursive developments in family values and reproduction in russian society. grandmothers, lesbian mothers and the state in general, russian society, including during the post-soviet era, has a long history of extended families with divergent relationships and care constellations within it. a rich literature exists on this family type and the kin relations attached to it (golod and klecin 1994; semenova 1996; rabzhaeva 2004; vishnevskiy 2008; sivak 2018). the specific russian historical construct – a legacy of a family that is not nuclear but run intergenerationally by women – influences the current social, cultural, and legal conditioning of lesbian-headed families who needed to construct new survival strategies under the oppressive law in russia. extended mothering in russia is a culturally and socially legitimate practice where grandmothers and their daughters parent together (rotkirch 2004). the idea of intergenerational mothering includes transmitting family and parenting values from generation to generation and implies the reproduction of a tradition between women (harper & ruicheva 2010). it is noteworthy that ‘extended mothering’ and ‘intergenerational mothering’ represent slightly different concepts: while extended mothering refers to mothers and grandmothers parenting under the same roof together, intergenerational mothering refers to a more general idea of handling over the knowledge, experience, and practical resources from a grandmother to a mother, aiming to help the mother with parenting. from the state’s point of view, russian babushkas, together with their lesbian daughters, officially represent and fit the cultural and historical family form of female-maintained families, which provides extended intergenerational mothering. however, to this background, putin’s autocratic and patriarchal state incorporated its official “traditional values” ideology (sorainen et al. 2017) together with the 2013 “anti-gay” legislation to encompass extended female-maintained families.[footnoteref:9] as a result of these two integrated state ‘desires’ – the wished-for existence of exchanging care between reproductive women and supportive babushkas, and the social disapproval of lesbian mothering that is socially entailed as a part of “homosexual propaganda” reaching children (zhabenko 2019) – the culturally valued women’s tasks of mothering and grandmothering get linked to the historically and socially approved model of extended mothering in lesbian-headed families. however, grandmothers face confusion and even difficulties in building relationships within their lesbian daughters’ families, which lack legitimate cultural roots and are legally or societally not fully supported. [9: in his address to the federal assembly in 2013, putin stressed the importance of protecting “traditional values”. his speech referred to the protection of the traditional family, the “true values” (istinnie tsennosti) of human life, and religious life, among others. the same year, the ‘anti-gay’ law passed at the federal level. the key term for this move, duchovnie skrepi (spiritual bonds) was introduced already in putin’s address to the federal assembly in 2012, in the context of preserving the national identity, when he referred to the characteristics of the spiritual order of the nation, the “moral compass,” or the “spiritually moral foundation of society” (zhabenko 2019).] in the contemporary, legally, and socially largely ‘anti-lesbian family’ scene of russia, with the existing extended female-maintained family model, grandmothers may come to occupy an ambiguous position as an important support for parenting but also as crucial intimate transmitters of cultural and traditional values in society. in this role, they are mobilised (and perhaps mobilise themselves) as gatekeepers for their lesbian daughters – who run lesbian-headed families where minors are reared – into an apparently adjusted role in the russian society. one background aspect for this complex constellation is that the russian state does not provide sufficient day-care services to working mothers (chernova 2010). at the same time, women’s salaries remain lower than men’s. thus, the state obviously counts, much in the same manner as it did during the late soviet period, on the grandmaternal help and also on their pension money within families (sorainen et al. 2017; baskakova & baskakov 2001; clarke 2000). babushkas and coming out: methodologies of research because of the extreme sensitivity of the topic in russia, following the enacting of the above-mentioned 2013 legislative changes, i needed to rely on a multimethod approach in my study. as noted above, in the wake of the mentioned “anti-gay” changes in the legal landscape, lesbian mothers became extremely wary of providing any information about their families, even to known and trusted researchers in the field in russia. the topic of the grandmaternal support was not the primary focus of my initial research on lesbian motherhood in russia, but it came up later during the analysis of the 50 interviews that i collected for my dissertational project. this article includes material from 15 interviews where the topic of the involvement of babushkas in lesbian families was discussed. the main corpus of interviews was collected in metropolitan russian cities with lesbian women aged between 23 and 56 years who raised children in same-sex families.[footnoteref:10] [10: most of my interview-partners had a university education, salaried jobs, and were financially independent. whilst the understanding of ‘class’ in russia remains the subject of discussion (levinson 2008), my interview-partners could, roughly put for the limited space of this article, be considered middle-class mothers (maiofis & kuklin 2010; shpakovskaya 2015).] all interviews were anonymised during the analyses, and i am using pseudonyms throughout this article. interviews were collected with oral agreement from my interview-partners. interviews and questionnaires were anonymised with a special care to ethical guidelines provided by the european research council to protect the interview-partners and myself as a researcher in a sensitive and politically contested field. neither names nor private information were mentioned in the transcript. transcripts were made entirely by myself, following the agreement with my interview-partners. analysing materials for my research i have been engaging in sophisticated discussions with the existing literature on lesbian kinship, parenting and motherhood, queer temporalities, queer law and international politics. narrative and in-depth interviews were analysed by multiple close readings, a thematic reading, and narrative analyses. during the analyses of the came up topics i noticed that the discussion on their parental families with my interviewees typically began immediately after the issue of ‘coming out’ was raised (and vice versa). here, ‘coming out’ also represented an important issue as the topic of the grandparents’ involvement and coming out emerged as closely connected in these interviews. the additional data from the two online surveys that i conducted in 2013 helped me to construct a wider picture on contemporary russian lesbian families’ expectations on grandmaternal care, although i will not directly refer to the survey results in this discussion.[footnoteref:11] however, it is important to note that the survey data shows that lesbian mothers primarily rely on their parents and friends for support and care: 75% of the respondents received help from their parents with parenting; 35% also relied on their friends for help. [11: the first online survey, “attitudes towards the ‘anti-gay’ legislation in the russian queer community,” with 1800 respondents, was conducted in october 2013. the second online survey was dedicated to the contemporary needs of lesbian families and was conducted in november 2013, with 94 respondents. in both surveys, the recruiting of respondents was completed with help from russian activist organizations, whereby surveys were advertised through activist channels. the surveys consisted of 50 and 30 questions, respectively. all data were analysed using the spss system. given the sensitivity of the information and the identity of the survey respondents, ensuring the anonymity of the survey participants was of a great importance. ] to contrast my findings with another post-socialist country with an increasingly hostile anti-queer attitudes, it is noteworthy that mizielinska’s (2015: 64) study of polish lesbian families’ relationships with their parental families, shows that in over 50% of the cases, the parents of the respondent, the other biological parent, and the partner's parents knew about the lesbian mother’s family situation. according to mizielinska’s (ibid) findings, if the lesbian mothers needed support and wanted to rely on their networks, they primarily sought help from their parental family; biological grandmothers turned out to be the second most helpful persons, after one’s partner (spouse), as almost half of the respondents turned to them for financial assistance (48%) or during illness (44%). this situation suggests that grandmothers are rendered as gatekeepers to support and care in the wider (oppressive) post-socialist societal context than just in russia (see also härkönen on grandmothers’ extended care role in contemporary cuba, in this issue). most of the participants in my own study “came out” to their mothers already during the reproductive process. if they were not ‘out’ before, they would inform their parents or closest relatives about their sexuality or about their family type during the process of conceiving, pregnancy, or the first immediate days after giving birth. their coming out depended on the expected, desired, and needed caregiving and the financial support they initially wished to receive from their parental families. disclosing the ‘truth’ about their reproductive and family strategies was, thus, exchanged for the wished-for resources that the parental family – in particular, the grandmothers – could provide to them in their newly constructed family situation. studies on grandparenting in lesbian families a significant amount of research has focused on family relations with grandmothers in heterosexual families in the international field. such studies have analysed their involvement in parenting, kinship building and intergenerational communication (rosenthal 1985; hagestad 1985; arber and timonen 2012; glaser et al. 2013). there is also a vast amount of research on the grandparenting of children conceived from donor sperm (fulcher et al. 2002; beeson et al. 2013; nordqvist and smart 2015). fewer studies have examined the communication and involvement of biological and non-biological grandmothers in lesbian-headed families. however, there are some studies that focus on the relationships between grandmothers and their lesbian daughters and children raised in lesbian-headed families in various countries. for example, patterson (1998) who studied the contact between the children of lesbian families and their grandparents based on materials from the united states, claims that children raised in lesbian-headed families were more in contact with the grandmother of the biological mother and her other blood relatives than with the grandparents and relatives from the non-biological mother’s side of the family. additionally, gross (2009) researched relationships between children raised in lesbian-headed families, and their social grandparents – that is, the grandparents from the non-biological mother’s side – in french lesbian families. gross’s (ibid.) findings highlight a negative influence from the “heteronormative matrix”, i.e., the cultural pressure to privilege the biological connectedness of relationships between grandparents and children, concluding that both the grandparents and the children in lesbian-headed families were more willing to invest in relationships with their blood relatives than in ‘social’ or non-biological kinship ties. furthermore, nordqvist (2015: 497) analysed how parents in british lesbian families “do kinship” with their grandparents, and suggested, that “in some families, new (lesbian) relationalities become intelligible insofar as they fit with the ‘old’ kinship thinking.” more specifically, nordqvist (ibid.) seems to suggest that genetic relatedness and traditional notions of belonging, and connectedness play a crucial role in the “non-normative” families headed by lesbian mothers. hence, in all of the above-mentioned studies, the ‘choice’ of kinship was made favouring biological grandparents and other blood relatives. these studies were conducted at different periods of time, within different legal, national, and cultural contexts regarding same-sex marriage and reproduction. patterson (1998) conducted her research amongst planned lesbian families living in the san francisco bay area in the 1990s, at a time when such families were supported by society and the community.[footnoteref:12] the research was, however, conducted several years before the state of california voted to legalise same-sex domestic partnerships. gross’s (2009) research was carried out following the legal recognition of same-sex couples in france (in 1999), but before the recognition of same-sex marriage.[footnoteref:13] nordqvist (2015), for her part, conducted her research under legislation that recognised same-sex marriages and parenting in the united kingdom.[footnoteref:14] [12: in total, 92% of patterson´s united states research participants were white, educated and had a high family income.] [13: in gross’s sample from france, 88% of the respondents had a university education.] [14: overall, 85% of nordqvist’s united kingdom study participants identified as white british, and 77% had a higher education.] by contrasting these three works, each of which is regionally, historically, and legally somewhat different, i seek to highlight an important argument. even if the level of recognition, the political situation, and the geographical location (the community-supported early 1990s in the utmost liberal state in the united states, california; the pre-legality france; and the after-legality britain), are relatively divergent, the findings across these three works were similar. in all the studies mentioned, the grandparents’ biological relationships to their grandchildren played a crucial role in establishing care and attachment bonds in the family. i contribute to this previous literature through my novel analysis of the significance of strategies to cope with different grandmaternal relationships in russian lesbian families under legal oppression, albeit in the specific cultural context[footnoteref:15] of extended female-maintained families and an oppressive post-socialist state’s legal and social framework. [15: arguably, the context of mothering in the post-soviet and even the wider european post-socialist space is quite homogeneous (as we saw above in the polish case, studied by mizielinska), especially since the soviet family policy was extended to all those countries that were included into the soviet union. ] in the margins of official kin in russia in what follows, i turn to the position of lesbian mothers in russian society. i do so to better understand these complex family configurations around biogenetical relatedness, in particular grandmothers, and their recognition as formative of and for ‘kinship’ within lesbian-headed russian families. the number of lesbian families in russia has grown since the decriminalisation of homosexuality in 1993, and since the further political changes towards liberalisation (zhabenko 2014). during one period of liberalisation, from the mid-1990s through the 2013, more information about lgbtq lives and family formations became available through information flows and the growth of internet access and travel.[footnoteref:16] this period significantly influenced the choices of russian lesbian mothers, including their reproductive choices: the access to artificial reproductive technologies as well as to new knowledge about different family types that came from outside of the russian borders, influenced on the decision of more lesbians to initially and / or openly build lesbian families together. in contrast, the previous generations had reproduced and raised children either in heterosexual marriages or had assumed the legitimate single mother position in society (zhabenko 2014). however, the ideological and official turn towards neo-traditionalism under the 2013 oppressive law influenced the move in lesbian families to head back to the ‘closet’ in russia (ibid.). this resulted from the need for russian lesbian mothers to look for support from their relatives and parental families rather than from the community, as society and the law, turned a cold eye on them. [16: on the liberalisation of the lesbian and gay movement in 1990-2000s in the wider european post-socialist space, see also renkin 2007, 2020.] simultaneously, non-biological mothers in russia do not enjoy any rights to children born into their lesbian relationships, even when such children are planned together; instead, by law, all rights and official responsibilities fall on the biological mother (zhabenko 2019).[footnoteref:17] this situation, in itself, is nothing new, since the precarious position of non-biological lesbian mothers in many european countries, northern america, and australia has been researched and campaigned against from the 1980s to the current day. nevertheless, the legal reform to equalise the rights of both mothers (or plural parents) in queer families still has not been completed in all of the so-called ‘liberal’ countries. for example, hitchens (1986) showed how a concern emerged in the united states in the 1980s regarding the non-biological mother having no legal connection to the child unless she adopts or is allowed to marry her partner legally. moreover, should the couple ever separate, it was unclear what this separation would mean for the relationship between the non-biological mother and her child. this meant that the absence of any rights for the non-biological mother prevailed, and, therefore, practically absolute rights lay in the hands of the biological mother alone. any possibilities for sharing parenting rights and responsibilities had, therefore, be negotiated, agreed upon and designed at the family level beyond public, social, or legal services. the outcome of such negotiations, thus, ultimately always depended upon the biological mother's views on motherhood in general, and on the power balance and parenting issues between the lesbian mothers in each lesbian family specifically. similarly, the legal situation in which russian lesbian families currently raise minors leaves non-biological mothers particularly vulnerable. the cultural and social context is, of course, somewhat different. [17: article 145 of the family code of the russian federation, comment 3 claims that the custody of minors is established in the absence of their parents, adoptive parents, deprivation of parental rights by the court. there is no possibility to establish the custody rights of a child who has biological and/or legal parents.] in russian lesbian-headed families, according to my data, the non-biological mother is usually presented as a godmother, a sister, or a distant relative of the child. such kinship tactics in russian lesbian-headed families have, arguably, been applied as strategies to gain at least some cultural and social recognition for the co-mother, in the situation where the increasingly dominant rule of the ‘official’ family discourse in the country was introduced by putin, and strongly supported by the russian orthodox church. more specifically, the tactic of referring to the non-biological mother as the godmother is enabled by not only the models of extended and intergenerational female-maintained families, but also because the institution of godparenting exists in russia not only inside the religious borders – though quite influenced by it – but also within the culture in general (muravyeva 2012). nowadays, one can become a godparent even without a special church ritual, just by being named as such by the family. this symbolically refers to a special closeness to the parents of a child. for example, in my sample there is one lesbian family from moscow who lived in separate flats on the same floor in an apartment building. they were in a long-term relationship, and both had biological children, but their children did not know about the intimate relationship between their mothers. they were both godmothers for each other’s children and called their daughters “godsisters”, thus establishing a kinship connection that is recognised socially and culturally, but not legally. queer/y/ing babushkas in russian lesbian families as noted, lesbian mothers in russia are not only left alone with their parenting duties in society, but also targeted by an oppressive law. since no marriage rights exist for lesbian families, their unions do not count as part of the legal kinship system. in this situation, biological grandmothers as legally recognised blood kin represent the most important and persistent external relationships and care resources. following the distinction between the biological mother as the sole bearer of legal rights and duties, and the non-biological mother without any externally recognised rights or duties to the child, a distinction could also be made between the grandmothers’ position in the family and society, in reference to whether they are from the biological or the non-biological mothers’ side. the cultural and social expectations of family support are extremely high for biological grandmothers and remain low or less visible for non-biological grandmothers. the wider cultural meaning of babushkas influences the distinction keenly given to the perceived importance of blood relations here. for example, nina, a non-biological mother to three children born into a planned lesbian family in saint petersburg, highlighted the power of this cultural assumption regarding the importance of biogenetical kinship hierarchies: “not everyone understood their role. the relatives of the biological mom thought that they came first and that the co-mother followed them.” in other words, biogenetical relatedness as the argument for power was imposed by the biological mother’s relatives to create hierarchical divisions inside the lesbian family, in a situation where the two mothers, nina and her lesbian partner, had mutually agreed to equally share parenting duties. for nina’s partner’s relatives, however, it was the ‘blood claim’ which reassured the actual parental family agreement as it was not only the grandmother, but other relatives from the biological mother’s side as well who attempted to put such a claim for kinship hierarchy. yet, according to my data, the non-biological babushkas quite often intensively participate in care and support practices in russian lesbian-headed families. however, biological mothers often feel hesitant about whether the non-biological babushkas would actually accept their grandchildren (or themselves) as part of their “real” family. for example, alina (a biological mother from saint petersburg) reflected on her experience as follows: “karina’s [alina’s partner, i.e., the non-biological mother] mom helped me when i went to the russian far east. i lived in her family’s home. however, i think that karina’s mom does not view us as a family but thinks that i am karina’s pregnant friend.” alina was frustrated because her partner’s mother treated her as an honoured guest, but not as an actual member of her family. alina had expected to receive recognition and more attention from the future grandmother of her child, but her partner’s mother did not treat her as the mother of her future grandchild, but as a friend of her daughter’s. in another case, the non-biological babushka, who was intensively involved in the parenting of her grandchild apparently dreamt that she had adopted the biological mother of her grandchild. polina, the biological mother, the partner of nika, said: nika’s mother had a dream in which she met with my mother, whom she had never met, and told her, ‘if you do not need your polina, let me adopt her. let me have two daughters.’ well, all these years it was that way: i felt like a second daughter to her, and our child is 100% her grandchild. this non-biological grandmother’s dream narrative, transmitted to me by polina, the partner of the dreamer’s non-biological daughter, provides tools to understand how some non-biological grandmothers seek ways to cope with the fact that their grandchildren are not blood-related and not ‘legal’, and that their own role as grandmothers are not legally recognised. even when recognised and appreciated as the grandmother by both lesbian mothers, and when intensively participating in the lesbian family’s parenting practices, non-biological grandmothers tend to continue to feel insecure about their status in contemporary russia. in this example, this grandmother found the dream world as a route to try to prefigure her social recognition in a complex situation. that is, she dreamt about a framework where both mothers could be her own children. we could ask whether this dream wish also served as a way to hide the socially unapproved sexual dimension of her daughter’s family, or if it served as a means to offer more grandmaternal protection by dreaming about rendering all parties her own legal children, and in that way, imagining a version of the family which would fit the existing model of the intergenerational or extended female-maintained family. interestingly, another biological mother from saint petersburg, katerina, provides a case whereby the biological grandmother began participating in childcare only after her daughter’s (the biological mother’s) divorce from the non-biological mother of children. katerina explained that her mother claimed katerina’s new partner as her preferred “child”: babushka [katerina’s mother, the child’s grandmother] did not participate before, but now she participates. babushka very much likes galya [the new girlfriend, the lesbian ‘stepmother’], and i suspect that galya is similar to my own babushka [katerina’s grandmother]. galya works near my mom and brings her food.... babushka visits the philharmonic hall with galya once a month. several days ago, babushka literally said that galya is her favourite “daughter”, even though babushka is homophobic. galya was a stepmother in a lesbian family, where the child was planned with the biological mother’s previous same-sex partner. the biological mother, katerina, claimed that her mother did not like her previous partner and even influenced their decision for separation. paraphrasing the previous case, the dream route of building a kin relationship with the non-biological mother, the biological grandmother of katerina’s child viewed the successor of the non-biological mother as her daughter’s new partner by likening her to her own biological daughter. moreover, this “adoption” of the lesbian daughter’s new partner allowed the grandmother to step in and assume a stronger role in the parenting practices of this lesbian family where there was a more complex situation than just the daughter and the initial non-biological mother. we are, thus, dealing with an interesting set of dreams and prefigured or imagined “legit” categories in terms of cultural kinship positions and family models, as claims to grandmothering in lesbian-headed families in the context of an oppressive state and female-maintained extended family model legacy.[footnoteref:18] [18: it needs to be mentioned, however, that the daughter-in-law is often (if agreed) called a “daughter” in russia – but usually only in the context of the heterosexual marriage and its in-law system.] all in all, according to my data babushkas quite often finally end up helping russian lesbian mothers with care and everyday parenting support, but in divisive ways, within the challenging legal, cultural, and social setting. at the same time, russian lesbian mothers have different expectations from biological and non-biological babushkas. for instance, they expect biological babushkas to provide practical and/or financial support whilst non-biological babushkas more often merely provide recognition of their position as members of an intergenerational/extended female-maintained family. lesbian mothers and babushkas: societal expectations in the narratives of the russian lesbian mothers in my study, the grandmothers of their children were not only unambiguously positive figures, but also often considered troublemakers because they were seen as coming with a ‘baggage of prejudice’ against their lesbian daughters. for example, masha, a biological mother from saint petersburg, says: i instinctively want to protect her [her daughter] from society by not telling anyone about my sexual orientation. most likely, my parents will feel differently about her and about myself [would they learn about her sexuality]. it will be worse i am sure, because they strongly dislike any relationships except family relations… i had problems telling them that i was getting divorced [from her previous husband]. i cannot imagine telling them that i am a lesbian. masha described her expectations regarding a strong prejudice towards her non-normative family relationships; not only towards her current lesbian-headed family, but also towards her divorcing her previous husband and the father of her child. she fears opening up about her identity to her parents even though they both intensively participate in grandparenting and support her career and other activities. thus, asking for parenting help and care from their own mothers makes many russian lesbian mothers feel a pressure to be ‘normal’, to fit into the social expectations that come from their parents or from other parental relatives. this pressure to gain more acceptance, and, in that way, to secure more support, may even extend to their habitus or personal aesthetics. for example, lyudmila (from saint petersburg), a non-biological mother, and a butch woman in her mid-30s, explained that she needed to change her wardrobe to appear more feminine when visiting her parents: “i used to visit my family once a year, a trip that was very stressful for me. once a year i had to change all my clothes, so i took some decent clothes that would not make my mother protest.” the outcome of such pressures (no matter whether real or imagined by the lesbian daughter, or both) leads some russian lesbian mothers to refuse accepting support from their grandparents or from other relatives. not everyone who experienced the pressure to appease heteronormative ideas and attitudes from the blood kinship framework accepted it. in doing so, they could also redefine the desired grandmother role in their own terms. for example, one of my interviewees, polina (the biological mother of a child in a planned lesbian family from saint petersburg), explained this by refusing to allow the biological babushka to impose her heteronormative views on her lesbian-headed family via the provision of caregiving. in her case, the non-biological grandmother was also available, granting polina the resources to refuse: “for some time, my mother visited us and our child had two grandmothers. but, at some point, we realised that it was uncomfortable for us because she again took this position of giving us instructions.” eventually, polina ‘cut ties’ with the uncomfortable relationship with her mother. however, this was only a partial cut since the biological grandmother was allowed to visit her grandchild from time to time. this situation mimics the result that utrata (2015) described in her research on the grandparenting relationships in single-mother families in russia. drawing on hackstaff (1999), utrata (2008: 2) notices that “the conflicts between single mothers and grandmothers do not take place within a divorce culture” and “…when conflicts do flare up, they typically lead to cutbacks in support rather than divorce.” the biological babushka will keep returning to her lesbian daughter’s (current) family. however, the baggage that grandmothers are feared or perceived to bring with them into the lesbian-headed families does not entirely depend on sexuality. sivak (2018) mentions ‘the baggage’ in her research on grandparental involvement in parenting amongst russian heterosexual mothers. in her study, grandmothers brought the “baggage of negative childrearing practices” (ibid). this illustrates that the grandmothers’ expertise is more widely constructed as troublemaking for russian mothers (see also avdeeva this issue). by refusing to receive this unwanted baggage, mothers wish to protect and legitimise their parenting style and prove that they can be ‘good’ mothers on their own (sivak ibid.; may 2008). zdravomyslova (2009) argues that the younger generation generally questions the legitimacy of the babushka’s role, since this role provides more authority for the older generation in the family. but, in lesbian-headed families, this legitimate authority of the babushka also serves to bridge between the illegitimate family type, the autocratic state, and the increasingly disapproving society. assuming a new status as a mother in the russian kin system provides biological lesbian mothers the opportunity to prove to their parental family and the state that they are productive members of a family and of the society, and thus meaningful and important russian citizens. the state has required the maternal status of women since the soviet period, whereby motherhood was and remains a state-supported responsibility to counter the demographic crises (chernova 2010; vishnevsky 2009). this represents a proper “traditional value” and a part of the citizen’s duty, both historically and currently (stella and nartova 2015; pecherskaya 2013). therefore, russian lesbian biological mothers are highly motivated to gain recognition from their own parental family as well as from the non-biological grandparents. in this quest, however, they often question their ability to act ‘normally’ in everyday situations as ‘good’ respectable mothers in society (moore 2011), because of their non-normative and unaccepted identity and sexuality. here, they highlight the internal dilemma of trying to be ‘themselves’ vis-à-vis trying to please their parents by requiring, and at least partially accepting support, sometimes even for starting, and often for maintaining, their families in a hostile social and legal situation. overall, russian lesbian mothers most often come out to their parental family in order to receive help for childcare and parenting, primarily expecting this from each mothers’ own biological mother. while biological babushkas are expected to intensively participate in parenting practices, they are not always granted assumed trust. even if the biological babushka does not agree with her limited role as described by the lesbian family, she usually remains in the child’s life as a high-ranking bloodkin member. simultaneously, the non-biological babushkas use divergent tactics and strategies to look for similar high-ranking relationships, including dreams and existing cultural images and models. other relatives from the biological mother’s side sometimes try to manipulate the hierarchical divisions inside lesbian family relationships in the name of blood relatedness to sideline the non-biological mother’s position. these complex kin relations suggest that even in a context where the law is against lesbian parenting and the ‘nuclear’ lesbian-headed family alone is insufficient to protect its members, blood can and will be claimed as a privileged access point to the family support network. these factors are also important in legitimising biological grandmothers’ family roles in intergenerational kinship and care constellations. the socially intelligible and culturally rooted babushka’s authority became the ‘bridge’ to legitimise the illegal and invisible lesbian-headed families as legit female-headed families based on extended mothering in the eyes of the state and the society. therefore, the ‘baggage’ of authority becomes a differently negotiable issue in russian lesbian families than in the heterosexual families. on the one hand, lesbian mothers want to defend their progressive and non-normative families; but on the other hand, the legitimate authority of the grandmother becomes a ‘shield’ between the russian anti-lesbian state and the increasingly pro-traditionalist society. conclusions: successful strategies for survival in lesbian-headed families in the legally and socially oppressive society the 2013 ‘anti-gay’ legislation in russia endangered lesbian mothers who are raising minors in their families, and negatively influenced the attitudes toward lesbian mothers in russian society. grandmothers in russia are not provided with a stable cultural model of the lesbian-headed family with an intelligible and legitimate babushka’s role in it, and the 2013 legal move made their position even more precarious. babushkas in lesbian-headed families could not receive legitimisation through society, culture, or law, and non-biological babushkas could not relate to lesbian-headed families biogenetically. in this complex legal and cultural context, some grandmothers seek to establish the kinship connection with the non-kin mother in the lesbian-headed family via ‘revealed’ dreams, or other imaginary or prefigurative narrative strategies. for example, they may claim the lesbian stepmother as their daughter or dream about adopting the non-biological mother, although this is legally impossible in russia. extended mothering and the involvement of babushkas in caring arrangements represent a wider cultural model of female-maintained families that is an intelligible type of family rooted in russian cultural history. the state understands female-maintained families as a source for the reproduction of new citizens. thus, lesbian-headed families, if they do not claim rights as specific types of families, become a family form that is ’desired’ by the state if it fits the existing models of intergenerational and extended female-maintained family that the state can control. in the new edition of russian constitution from 4 of july, 2020, the new fourth comment to article 67 was added. in this comment, children are claimed as the state´s asset and the state promises to take parental responsibilities over children without custody.[footnoteref:19] the new edition of the russian constitution highlights that the russian state aims to become a “parent" and relaxes certain penalties in a situation that suits the state’s parental role: for example, in the case of extended, female-maintained families where the ‘missing’ father´s position could be replaced by the state. this idea that all families should be heterosexual nuclear families is rather patriarchal, and families run only by women could be seen as somehow deficient. [19: article 67, clause 4 (4 july, 2020): ”children are the most important priority of the russian state policy. the state creates conditions to support the comprehensive spiritual, moral, intellectual, and physical development of children, raising their patriotism, sense of nationhood and respect for seniors. the state provides the priority of family education and therefore takes the responsibilities of parents to children who were left without custody” (rus: статья 67, пункт 4 (4.07.20): «дети являются важнейшим приоритетом государственной политики россии. государство создает условия, способствующие всестороннему духовному, нравственному, интеллектуальному и физическому развитию детей, воспитанию в них патриотизма, гражданственности и уважения к старшим. государство, обеспечивая приоритет семейного воспитания, берет на себя обязанности родителей в отношении детей, оставшихся без попечения). http://duma.gov.ru/news/48953/ (accessed 2 june, 2022).] but, still, in the contemporary society, a family with two women raising children creates suspicion. in that situation, the babushka becomes a mediator between the lesbian family and the society: her involvement in the caring arrangements converts the lesbian families not supported in the russian society or law (if minors get raised in lesbian family) into culturally understandable female-maintained families. such families thoroughly answer the state´s request for traditional families, investing into the model that was inherited from the soviet period, when women ran the private family sphere and men were often not occupied in family duties, or even present. therefore, in this situation, where the biogenetical kinship is represented as female-maintained families in three generations, the babushkas become a ‘shield’ between the lesbian-headed families and the russian state. nevertheless, such family support relations are not easy for any of the actors: neither for the lesbian mothers nor for the babushkas involved. in lesbian-headed families, where there are two mothers, also two diverse babushkas are usually or potentially present: from the biological mother’s side and from the non-biological mother´s sides. considering that babushkas from the non-biological mother´s side are not biogenetically connected, they are searching for ways to relate to their new position in the family that is not culturally supported nor historically recognised. for example, non-biological grandmothers have to create strategies to connect themselves to the children of their daughters’ families. on the one hand, biological mothers, in some cases, seek recognition and support from non-biological grandmothers, to gain resources and wider kinship connections for their children in the hostile society and in the absence of other supportive communities. this happened particularly after the 2013 law made many lesbian-headed families to go back to the closet, and to not disclose their family situation to people outside of their family. on the other hand, lesbian mothers are not ready to sacrifice their way of life, identity, or sexuality, which is why sometimes the negotiations with babushkas proceed with multiple troubles.  in all this, lesbian biological and non-biological mothers alike are often willing to negotiate the everyday practises of their parenting because they depend on receiving support and care from both babushkas in russia. however, their expectations – and resistance – vary depending on the manner of babushkas in terms of how normatively they would like to rule, and what other resources are available. research results from the european and united states scholars (patterson 1998; gross 2008; nordqvist 2015) show that children generally communicate more with their grandparents and relatives from their biological mother’s side of the family. whilst these studies were conducted at different periods and under varying legal contexts related to same-sex marriage and parenting rights, the results reveal that blood kinship comes to matter in intergenerational care constellations in lesbian-headed families. also in russia, biological grandmothers came to anchor the cultural tradition of childrearing and to legitimise their authority. this authority corresponds to the ‘traditional values’ ideology that the russian state began transmitting recently in society. for this reason, and given the generational gap, lesbian mothers sometimes negatively perceived the legitimacy of the required grandmaternal authority in their families, as it was seen to bring the ‘baggage’ of heteronormative prejudice into their families and life. however, once exchanged for family support, this ‘baggage’ of prejudice and authority creates a connection between the lesbian family and the society. it may eventually help lesbian mothers to cope and build successful strategies for survival as lesbian-headed families in the legally and socially oppressive contemporary russian society. meanwhile, the social 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reproductive choices of lesbian-headed families in russia: from the last-soviet period to contemporary times. lambda nordica, 19 (3–4): 54–85. zhabenko, alisa. 2019. russian lesbian mothers: between “traditional values” and human rights. journal of lesbian studies 23 (3): 321–335. _______________________________________________________________________________________ 2 _______________________________________________________________________________________ 2 _______________________________________________________________________________________ 2 chunter feminists@law, vol 3, no 2 (2013) women and homelessness: winning and losing in the welfare state caroline hunter this is a recording of the paper given by caroline hunter at the seminar on 'feminist jurisprudence and the question of home' held at melbourne law school, university of melbourne, on 6 september 2013. the powerpoint presentation associated with the paper is provided in the accompanying pdf document.   caroline hunter is a professor at york law school, university of york, uk.  caroline.hunter@york.ac.uk conaghan gender and the idea of labour law __________________________________________________________________________________ feminists@law vol 4, no 1 (2014) __________________________________________________________________________________ gender and the idea of labour law joanne conaghan[footnoteref:2]* [2: * professor of law, university of bristol law school, uk, email joanne.conaghan@bristol.ac.uk. ] the production and reproduction of immediate life … is … of a twofold character. on the one hand, the production of the means of subsistence, of food, clothing and shelter … on the other, the production of human beings themselves, the propagation of the species. the social institutions under which men of a definite historical epoch and of a definite country live are conditioned by both kinds of production… (engels 2010/1884, 35). every society has some sort of division of tasks by sex (rubin 1997). the sexual division of labour is a widely recognized phenomenon which, anthropologists tell us, occurs in some form in virtually all societies. given such apparent universality, it is tempting to assume that the social allocation of tasks by sex is a reflection of biological difference, to conclude that the sexual division of labour arises naturally and inevitably from the brute facts of human existence. certainly, this is the assumption which underpins many of the classic analyses of women’s social position, for example, engels’ origin of the family, private property, and the state (2010/1884) or mill’s the subjection of women (1869). the tendency of such analyses is to locate the causes of gender inequality in the conditions of primitive human existence suggesting an egalitarian solution that neatly aligns with processes of human evolution and civilization. and yet, this supposed correspondence between equality and evolution is far from assured. as juliet mitchell wryly observes, ‘no primates distinguish between the sexes as assiduously as humans do’ (1984, 84). the determining influence of human biology on the social organization of work is cast into further doubt when one considers the enormous variation in the gendered allocation of tasks in any given society (levi-strauss 1971, 347). put simply, while a gender division of labour is a common feature of social organization, the particular forms that division takes will be temporally and spatially bound. given the historical specificity of sex-based systems of socially organized labour, what can we say about the relationship between a sexual division of labour and socially constituted sex difference? again anthropologists tell us that while labour is not the only significant site of the social construction of sex roles – the kinship system, for example, is widely regarded as central in this respect (levi-strauss 1971) – the social organization of work is nevertheless strongly implicated in the social constitution of sex/gender (rubin 1997). there is clearly an interconnection between how we understand gender roles, attributions, and relations and how we approach the allocation of socially necessary tasks. this is manifest not only in the material realities of people’s lives in which men and women must learn to navigate the structural and relational constraints imposed by deeply gendered working arrangements but also in the realm of socio-cultural and/or symbolic expression where gender and labour often coalesce in processes of value and meaning conferral, making labour a signifier of gender and vice-versa. thus understood, gender and labour interact symbiotically to mutually constitute and reinforce one another. with such a degree of co-dependence, one might expect gender to feature prominently in labour law, that branch of law which purports to govern labour relations. indeed, one might anticipate that the near universal incidence of a gender division of labour would register as a factor of significance in the context of labour law analysis and theorizing. remarkably though and outside the field of feminist labour law scholarship (see fudge 2013), gender has remained conspicuous by its absence from labour law as a category of analytical worth. it plays no (formal) role in the constitution and mapping of the discipline and makes no (acknowledged) conceptual contribution to the core analytical frame. from the perspective of labour law scholarship, gender is part of the empirical reality upon which labour law acts but it is not a defining or determining part. it is to be found in the bricks and mortar of labour law, not in the overall architectural design. granted labour lawyers are far more aware of gender issues today than they once were. major changes in the economic and political landscape in recent decades have, inter alia, brought about seismic alterations in the gender composition of employment, contributing to the ‘feminization of work’ and exposing the interdependence of the productive and reproductive realms in constituting and maintaining the necessary social arrangements to support economic activity. a normative ideal premised upon a sexual division of labour which comprises a male breadwinner and female caregiver has been forced to give way to new and unstable configurations of work and family in order to satisfy the voracious appetite of post-industrial capitalism for flexible labour. the pursuit of policies of labour market activation directly targeting women in a period of intense welfare retrenchment has rendered all too visible the traditional reliance of workplace arrangements upon a social infrastructure in which the bulk of caring work is carried out by women in the home. the assumption that work and family occupy separate and autonomous realms which collide only in the context of ‘choices’ exercised by individual women seeking to access the labour market has been revealed to be untenable as the pursuit of ‘family-friendly’ strategies has moved from the margins to the mainstream of regulatory and policy agendas (conaghan and rittich 2005). how have these developments impacted upon labour lawyers’ understanding of their field? at first glance, not a lot. persistent calls by feminist legal scholars (see, for example, conaghan and rittich 2005; busby 2011; james and busby 2011; fudge, mccrystal and sankaran 2012) to redraw the boundaries of labour law to take proper account of unpaid caregiving work appear for the most part to have fallen on deaf ears. there is no evidence of a great rush by labour lawyers to confront the implications of social reproduction for the conceptual coherence and normative legitimacy of their field although there is a widespread acknowledgement that the field is in the midst of a conceptual and normative crisis (davidov and langille 2011, 1). there is also recognition that the traditional boundaries of the discipline are under serious threat (arthurs 2011) and that those boundaries are the product of historical circumstances, possessing limited general applicability (weiss 2011, 43). surely this is a prime moment for labour lawyers to take the concerns of feminists seriously: to think through the implications for the discipline of reconceiving labour in terms which really do reach ‘beyond employment' (supiot 2001) to encompass, inter alia, the significance and implications of unpaid care work for the regulatory field as a whole. such an approach would arguably bring into better focus the social foundations upon which work is organized, the drivers and imperatives which shape the regulatory agenda, and the normative stakes to which current developments in the world of work give rise. take, for example, the pursuit of labour market activation policies, now a central plank of social and economic policy at both the national and supra-national level. activation policies call into question the foundational underpinnings of labour law in a number of respects. while labour law has traditionally focused on the employer-employee relationship, activation makes the relation between the citizen and state the central policy and regulatory focus. similarly, while labour law has been typically conceived in collective and conflict-based terms, the rhetoric of activation is heavily reliant upon ideas of individual responsibility and social cohesion. in addition, activation policies cannot help but erode the boundaries which have contained labour law, both as a field of regulation and as an academic discipline, by bringing into direct consideration spheres of social activity such as the family, and spheres of legal regulation such as social insurance,[footnoteref:3] which have not until recently been on the labour lawyer’s radar. the expectation at the heart of activation ideology – that everyone should engage in paid work – simultaneously reveals and disrupts the gendered social arrangements for the provision of care which have hitherto underpinned legal and social constructions of the world of work and the role of a complex nexus of gender, work and care in the constitution and maintenance of labour law’s conventional boundaries is rendered visible just at the point when its continued viability is in serious question (conaghan 2009). [3: the inclusion of social insurance within the discursive parameters of labour law is, and arguably always has been, a matter of debate. in launching the discipline of labour law in the context of the weimar republic, founding father hugo sinzheimer, considered social security law to be an ‘ inseparable part of labour law’ (weiss 2011, 44). his position notwithstanding, the idea of labour law which eventually took form in the twentieth century was for the most part tied to the employment relationship. in recent years however, labour lawyers have begun to recognize the need to take broader account of labour market regulatory mechanisms, including welfare-to-work and other activation strategies (see in particular deakin and wilkinson 2005) although the gender implications of this proposed broadening of the field have not been fully recognized. ] if labour law as a discipline is in crisis and if the foundational implications of a sexual division of labour for labour law are coming more and more clearly into view, why do more labour lawyers not take up the gender baton offered by feminists and run with it? and why, in particular, do so few scholars directly confront the challenge posed by feminist calls for labour law to take better account of unpaid caregiving? the contemporary field of scholarship displays an ecstasy of angst about the idea of labour law, its purpose(s), function(s), and future direction. speculation about the ‘death’ of labour law has been rife since at least the late 1980s (ewing 1988; see also davis 2002). there has been a surfeit of projects devoted to ‘redefining’ labour law (mitchell 1995) or ‘transforming’ it (conaghan, klare and fischl 2002); to redrawing its boundaries and objectives (davidov and langille 2006); and generally to speculating about its future direction (ryan, barnard and deakin 2004). among the most influential recent contributions to this now rather long-running debate is a collection of 25 essays edited by guy davidov and brian langille in which the ‘very idea' of labour law is subject to extensive examination (davidov and langille 2011). that this question is on the table attests to the depth of the crisis of identity which labour lawyers currently experience, eliciting what can only be described as a ‘back to basics’ soul-searching exploration of the field. this interrogation of labour law fundamentals includes questions such as: what is labour law? what is it for? how do we justify its existence and operation? or, as the editors of the collection ask at the outset: ‘is the idea of labour law a timeless one, an outdated one, or … a new idea whose time has now come’ (davidov and langille 2011, 2). to which i would add a further question which, while not generally explicitly articulated, is nevertheless present in some of the essays (see in particular fudge 2011) and in others lurks unacknowledged in the discursive interstices of the text. it is this: has the moment arrived to embrace a new, significantly more expansive ‘imaginary for labour law’ (fudge 2011, 135) which is capable of recognizing and encompassing the regulation of social reproduction? to answer this question, let us return for a moment to the alleged crisis of identity with which labour law is said to be afflicted. the nature of that crisis is perhaps best expressed in harry arthurs’ opening chapter in the davidov and langille collection: is labour law, he asks ‘a legal field with arbitrary but variable boundaries and non-inherent content or purpose' or does it possess 'a distinctiveness, coherence, and even ... functional and conceptual autonomy' as arthurs, among others, would like to believe (arthurs 2011, 15). in other words, is ‘labour law’ simply a convenient tag we attach to an indiscriminately arranged collection of regulatory mechanisms pertaining to the world of work or does it exist in some more fundamental sense – as a coherent and unified field with its own internal aims and purposes? arthurs’ conclusions on this matter are ambivalent, acknowledging at one and the same time both the historical specificity of labour law: ’labour law’ is labour law because within a particular configuration of historical circumstances we choose to apply that particular taxonomical label to a body of rules, a cluster of professional practices, and a field of scholarship (ibid, 16) and its uniqueness and importance: labour law is different from other legal fields … [it] is neither non-law nor a mutant form of law, but law incarnate, an experiment in social ordering that reveals the true nature of the legal system in general (ibid). this ambivalence is echoed by many of arthurs’ co-contributors as well as by other labour lawyers reflecting upon the current state of things. at its heart lies a deep affection for the discipline which may make it more than usually difficult to let go of the past and move on. while recognizing the lack of correspondence between the conventional model of labour law and the new external realities of working life (mitchell 2010), while accepting the current inadequacy both of the core conceptual tools of the discipline (expressed in the primacy of the contract of employment) and the traditional normative underpinnings (the inequality of bargaining power between capital and labour), there remains a widespread commitment among labour lawyers to upholding what hugh collins once described as ‘the vocational character’ of labour law (collins 1989), to ground the discipline’s legitimacy in some virtuous pursuit by retaining its close historical connections with ideas of social justice and economic democracy (see e.g. langille 2011; deakin 2011). the gloomy alternative is to accept, as alan hyde does, that labour law can no longer serve ‘as a source of inspiration’; rather must be regarded (horrific thought) as no more than ‘a technical branch of regulation, like securities or banking’ (hyde 2011, 96). fortunately, hyde’s loss of faith is not widespread and considerable effort is now being devoted to ensuring that labour law remains tied to some nobler calling. as langille boldly pronounces, ‘labour law has always had, and always will have, a theory of justice’ (langille 2011, 102). approaches here tend to take one of two possible paths. on the one hand there are those who seek to hang onto a ‘basic idea’ of labour law (goldin 2011), to articulate ‘a generalizable core’ which holds true for ‘the regulation of work relations in all types of capitalist economy' (dukes 2011, 57), to embrace, in other words, a notion of labour law as transcendent (davidov and langille 2011, 2). on the other hand there are those who concede – albeit to varying degrees – that the old conception no longer has purchase, that new analytical categories are required (freedland and kountouris 2011a; 2011b) and new normative bases in need of articulation (arthurs 2011; langille 2011; collins 2011). these concerns – about the utility of core concepts and the adequacy of normative foundations – also pertain to questions about the scope of labour law, about where its frontiers should lie. few labour lawyers contend that the boundaries of labour law, as traditionally expressed in an industrial pluralist model of the working world, still hold. there is something close to a consensus that the boundaries must widen, but to include what and subject to what limitations remains undetermined. the challenge to labour law’s traditional boundaries has come from a variety of sources. most notably, there has been a marked decline in most developed industrialized counties of collective worker organization and supporting regulatory mechanisms, along with the corresponding rise of individual, largely statute-based approaches to workplace justice (hepple 2011, 39-40). ‘labour law’ has thus expanded to include an increasingly complex array of legislative provisions concerned with allocating individual rights and responsibilities. another significant factor in labour law’s expanding boundaries has been the advent of globalization, inter alia, prompting the decentring of the state and the rise in prominence of supra-national forms of regulation (arthurs 1996). yet again, the decline of standard employment and the rise of new forms of flexible working which lack the formal characteristics of subordination traditionally associated with the contract of employment but which can be every bit as (if not more) exploitative have forced labour lawyers to rethink the centrality of the employment relationship both in a theoretical and policy context and to develop new, more encompassing conceptualizations of ‘personal work relations’ (freedland and kontouris 2011b). additional pressure significantly to widen the scope of labour law has come from the increasing intersection of labour and migration concerns as well as the widespread adoption, already noted, of labour market activation policies. in the latter context, labour law has become repositioned as a market-focused mechanism in which its primary goals have become more explicitly aligned to market objectives. inevitably informal labour markets have also caught the attention of labour law scholars so that the implications of a working world operating outside the scope of formal regulation are now being explored (caruso 2002). interestingly, the more labour law moves away from standard employment relationships and the more it ventures into the territory of unregulated, precarious work, the more likely it is to encounter working arrangements in which gender is a feature of significance. the plight of domestic workers, the ramifications of global care chains, the ambivalent status of sex workers, the problems presented by human trafficking, and the outsourcing of sweated labour from developed to developing countries – these are all contexts in which the distributive stakes for workers are significantly mediated by gender roles and relations. it is therefore no surprise that they have come within the vision of labour law largely as a consequence of gender-inflected interventions (see, for example, mundlak 2005; sankaran 2011). what all this portends is the potential dissolution of labour law as an autonomous field of regulation as the once solid lines which separated it out from criminal law, social security law, immigration law, international human rights law, and even family law begin to fade. it is no wonder labour lawyers are in such a state about boundaries. how in such circumstances, speculates brian langille, does labour law ‘carve itself from off from the rest of the legal world? how do we know what issues are labour law issues, what materials to read, what subject matters go on the syllabus?’ (2011, 102). of course as labour law expands in ever-increasing circles, the problems, as langille goes on to observe, are more than just practical and logistical. what must also be confronted is whether or not there is anything, normative or conceptual, which can be said to unite labour law as a field of scholarly endeavour; anything to make it whole and/or to render it coherent. at which point we return to the values and allegiances which mobilize labour law scholarship. as richard mitchell observes, ‘our loyalty is surely to labour as a class, not to “labour law”’ (2010, 20). what does this mean in the context of the new social and empirical realities which characterize the world of work? taking otto kahn-freund’s famous pronouncement as the normative starting point, namely that: ‘the main object of labour law has always been, and we venture to say always will be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship’ (kahn-freund 1977, 6), the question currently being confronted is whether, and to what extent, labour law has moved away from this core constituting narrative and what, if any alternative legitimating discourse, might serve in its place (see, in particular, langille 2011). to this there have been a number of responses. again, arthurs’ survey of the terrain provides one of the most insightful accounts of how things stand. he identifies three possible answers to this critical question. in one vision, labour law is reconfigured as part of a broader schematic of fundamental human rights (arthurs 2011, 23-24); in another it is reconceived as a facilitating worker empowerment through the accumulation of human capital (ibid, 24-26). arthurs’ third and final response to the question of what should constitute the animating purpose of labour law is that that purpose should remain unchanged, that is, that labour law should continue to ‘enable workers to mobilize to seek justice in the workplace and the labour market’ (ibid, 27). although arthurs does not formally express a preference for one or other of these visions, his brief attempt to sketch out new approaches to worker mobilization and his oblique warning against breaking the ‘connection to quotidian workplace relations’ (ibid, 29) suggest that his heart at least lies with retaining labour law’s originary aims. at the same time, arthurs accepts that whichever route the discipline eventually takes, things can never be the same: ‘in each of these three new possible instantiations’ he remarks ‘labour law may well lose some of its unique character’ (ibid). clearly the extent of the loss varies. reflecting upon the merits of reconceiving labour law as a branch of human rights, arthurs rightly notes the radical implications of this move in terms of decentring the capital-labour relationship and erasing the particularity of work-based disputes (ibid, 24). collins too is sceptical about the prospect of recasting labour law within a universal human rights framework (2011). arthurs’ second vision of labour law in terms of the development of human capital is taken up by brian langille who deploys amartya sen’s ‘capabilities’ approach (sen 1999) to articulate a new normative framework for labour law based on the idea of maximizing human freedom. according to langille, the ‘old’ framework premised upon the structural inequality of the employment relation is ‘out of date’ (2011, 105). he attributes the anxiety that labour lawyers currently experience to their attempts to hang on to old ways of thinking, recommending sen as a form of ‘therapy’ to cure them of their neuroses (ibid, 109). what this entails, langille continues, is acceptance of an account of labour law as a means of regulating ‘human capital deployment; its motivation is both the instrumental and immediate end of productivity and the intrinsic and ultimate end of the maximizing of human freedom’ (ibid, 115). not all labour lawyers are as keen on this therapy as langille. his fellow editor, davidov, takes the firm view that labour law is and should be about protecting workers from the vulnerabilities to which work relations can give rise (davidov 2007; 2011). other scholars too rush to the defence of the originary narrative (or some version thereof), denying the need for any radical change of normative orientation. of particular significance here is the status of the traditional rallying cry ‘labour is not a commodity’ which has not only served as a core political underpinning for the labour movement but has also been invoked as a primary justification for legally instituted worker protection (collins 2003, 1-26). how does the adoption of this principle impact upon the demarcation of labour law as a field? clearly, it is expressive of the kantian imperative to treat men as ends not means; in this sense, it is consistent both with a human rights approach to labour law and with an idea of labour law based on human dignity. it is also consistent with an idea of labour law conceived in terms of facilitating worker mobilization. however, does it also suggest that the limits of labour law lie at the outer boundaries of paid employment? if the concern is with labour as a commodity, does that not preclude a conception of the field in which formally non-commodified labour, for example, housework, is included? some scholars would say yes. for example, manfred weiss premises his argument against a change in the core paradigm of labour law on precisely this point (2011, 46). weiss goes on to insist that 'labour law is not to be misunderstood as a tool to compensate the position of the weaker party everywhere' (ibid, 49) and furthermore that ‘labour law should not be mixed with law for other subsystems of society which all do have their specific patterns of regulation. labour law should not be misunderstood as an overarching category for all cases in societies where the needs of the weaker parties to be met’ (ibid, 56). one way of reading this is as an obliquely couched critique of feminist arguments in favour of bringing unpaid care work into the ambit of labour law. this reading is supported by weiss’s insistence that ‘employment’ should be understood ‘in its broadest sense’ (ibid) and by his inclusion of ‘family law’ within the subsystems from which labour law is necessarily to be distinguished (ibid, 49). other labour law scholars however seem more open to the possibilities of bringing unpaid care work carried out in the home into their field of vision. harry arthurs, for example, sees it as pertaining to issues of worker mobilization. he argues that ‘in response to innovative forms of worker mobilization, labour law scholarship will have to extend its reach to all policy domains that influence work relations or labour market outcomes’ and that in this context, that reach should encompass ‘all non-participants whose activities impinge on the dynamics of labour markets, including unemployed workers, workers in the informal sector, and workers engaged in the non-waged tasks of social reproduction’ (arthurs 2011, 27). similarly, brian langille, in embracing an account of labour law anchored by a principle of maximizing human freedom, comments: this is an account which is much deeper and broader than the old received wisdom about the scope and purpose of labour law … if we see labour law as underwritten by the idea of human freedom, we not only have a set of reasons for traditional labour law – but also for non-contractual approaches to work relations (informality, for example) and for other non-traditional labour law subjects (unpaid work, education, child care, and so on (langille 2011, 114). langille also argues that the prevailing understanding of ‘labour is not a commodity’ is too narrow and has been unnecessarily confined by its close association with the idea of inequality of bargaining power (ibid, 106). instead langille argues for an expanded understanding of the non-commodification principle positively linked to the idea of human freedom (ibid, 111). in both the analyses of langille and arthurs, the sphere of social reproduction is brought within the field of labour law’s vision, albeit for different reasons. for langille, the normative re-orientation of labour law around human freedom means that matters relating to the structuring and deployment of human capital, including capital required for social reproductive tasks, move to centre stage. for arthurs, the concern is less with human capital (although he does acknowledge this as a possible normative underpinning for labour law), but with developing new forms of worker mobilization which reach beyond the formal confines of the ‘workplace’, thus reflecting the changing realities of the working world. even manfred weiss, although sceptical about the need for any radical redrawing of labour law’s boundaries, recognizes the gendered aspects which characterized traditional working arrangements and at least some of the gendered implications presented by current developments. he observes: ‘the male “breadwinner” model belongs to the past. balance of work and family obligations thereby, has become a serious problem’ (weiss 2011, 46). thus, notwithstanding his insistence that labour law should not be misconceived as a mode of regulation which encompasses any and all kinds of vulnerability arising in the context of work relations, questions relating to the gendered allocation of labour have moved within the realm of weiss’s contemplation. slowly but surely, perhaps less with a bang than with a whimper, mainstream labour law is beginning to take cognizance of unpaid work. of particular significance here is noah zatz’s contribution to the davidov and langille collection. in ‘the impossibility of work law’, noah zatz (2011) finally picks up the gauntlet tossed into labour law terrain long ago by feminists and for the most part lying idly in a corner gathering dust. in so doing, zatz is among the first non-feminist-identifying labour lawyers directly to address the question of whether and to what extent labour law should include ‘nonmarket work as an object of study and regulation’ (ibid, 234). while the overall thrust of his argument leans against such inclusion, or at least against a reconceptualization of labour law within the broader parameters of a homogenized ‘work law’, zatz’s analysis is particularly useful in highlighting the link between the collapse of labour law’s traditional boundaries and an increasing willingness among labour lawyers to consider the full range of work relations, including those which operate in non-market contexts. at the same time, zatz is adamant that differences between distinct kinds of work relations and the varied institutional settings in which they arise are of core analytical and policy significance. it is for this reason that he argues against ‘… any uniform system of work regulation. different forms of work must be treated differently’ (ibid, 248). zatz’s analysis has much to commend it. however, there is a risk here of misstating or misunderstanding the nature of the concerns expressed by feminists about labour law’s scope and content. the object is not to make a case for the inclusion of unpaid work within the parameters of labour law based upon some aristotelian equation of like for like. in arguing that the notion of ‘work’ does and should encompass unpaid caring labour carried out in the home, the aim is not to erase all distinctions between different kinds of work relations and the different institutional contexts in which they arise. rather the point is to recognize and map their connections, to acknowledge and take proper account of their conceptual, ideological, and regulatory interactivity. judy fudge encapsulates this well in the following remarks: disciplinary boundaries are both ideological and conceptual, and there are compelling ideological and conceptual reasons for expanding the scope of labour law to include all of the regulatory dilemmas that any attempt to govern the labour market must confront (fudge 2011, 136). this is not a recipe for a fully homogenized ‘work law’ nor is it a demand that labour law scholars put aside the key values and concerns which animate their discipline. it does however challenge us all to think more imaginatively and reflectively about what those values and concerns entail. as fudge goes on to point out: in societies that value paid employment as the primary path to ‘citizenship’, treating unpaid care work, the socially necessary labour predominantly performed by women, as a matter of social or family law, reinforces the idea that such work is not only a woman’s natural role but also that in the social hierarchy it is of lower value than paid employment (ibid). at the same time, there is more at stake here than ensuring a more gender egalitarian legal and regulatory framework though that of course is important. what is and has been extensively argued by feminist labour lawyers is that our field of scholarly endeavor cannot be properly grasped or interrogated, our values and goals cannot be adequately pursued or satisfactorily realized, without paying attention to gendered aspects of the social organization of work and to what engels identifies as the ‘twofold character’ of processes of material subsistence (engels 2010/1884, 35). what would a labour law which recognizes that negotiating the work /family boundary is central to the regulatory challenges dictated by current economic and social conditions look like? how do we go about constructing the tools and techniques needed to navigate a working world in which key assumptions about the nature and operation of that world which have long informed our rules and grounded our theories no longer apply? this is not simply a question of ensuring a better match between labour law and the ‘external’ realities it purportedly governs. as freedland and kountouris (2011b), among others, point out, law does not just regulate the world of work, it constitutes the categories and concepts through which we see and interpret it. thus, the emergence of the contract of employment at a particular time and place as a category with legal consequences has contributed to the construction and reification of an ideology of work relations in which that particular form is privileged. similarly, the traditional reliance of labour law upon a discursive frame which insists upon a sharp distinction between paid and unpaid work not only facilitates the ideological privileging of productive over reproductive activities but, in the context of current labour market policies in particular, renders us virtually blind to key normative and distributive stakes. in a recent review of freedman and kountouris’s much acclaimed monograph, the legal construction of personal work relations (2011b), sandra fredman and judy fudge demonstrate how freedman and kountouris’s efforts to articulate a new legal classificatory system which captures the ambiguity, variety, and temporality of personal work relations provides a far better conceptual schema for recognizing the gendered particularities of labour market arrangements and the structural and distributional implications thereof (fredman and fudge 2013). the construction of a new labour law imaginary then is already well underway. once we accept, as it appears most labour lawyers now do, that the conventional parameters of the discipline are contingent and historically defined; once we acknowledge that the way in which we have traditionally conceived the field is but one possible way, so that we open ourselves up to other possibilities; and once we recognize that all this disciplinary self-realization is occurring at a time when the supposed separation of productive and reproductive activities is rendered increasingly fragile and permeable as a consequence of wide-ranging, far-reaching, economically-driven changes in the organization of work, the case for incorporating social reproductive concerns into labour law will no longer have to be made. it will have become self-evident. references arthurs, harry. 1996. labour law without the state. 46 university of toronto law journal 1-45. arthurs, harry. 2011. labour law after labour. in the idea of labour law, ed. by guy davidov and brian langille, 13-29. oxford: oup. busby, nicole. 2011. a right to care? unpaid work in european employment law. oxford: oup. caruso, bruno. 2002. immigration policies in southern europe: more state, less market? in labour law in an era of globalization, ed. by joanne conaghan, richard michael fischl and karl klare, 299-319. oxford: oup. collins, hugh. 1989. labour law as a vocation. 105 law quarterly review 463-484. collins, hugh. 2003. employment law. oxford: oup. collins, hugh. 2011. theories of rights as justifications for labour law. in the idea of labour law, ed. by guy davidov and brian langille, 137-155. oxford: oup. conaghan, joanne, fischl, richard michael, and klare, karl, eds. 2002. labour law in an era of globalization. oxford: oup. conaghan, joanne and rittich, kerry. 2005. interrogating the work / family divide. in labour law, work and family, ed. by joanne conaghan and kerry rittich, 1-16. oxford: oup. conaghan, joanne. 2009. gendered aspects of activation policies: the limits of welfare to work. foundation of law, justice and society (http://www.fljs.org/content/gendered-aspects-activation-policies-limits-welfare-work). davidov, guy. 2007. the (changing?) idea of labour law. 146 international labour review 311-320. davidov, guy. 2011. re-matching labour laws with their purpose. in the idea of labour law, ed. by guy davidov and brian langille, 179-189. oxford: oup. davidov. guy and langille, brian, eds. 2006. boundaries and frontiers of labour law: goals and means in the regulation of work. oxford: hart publishing. davidov, guy and langille, brian, eds. 2011. the idea of labour law. oxford: oup. davis, dennis. 2002. death of a labour lawyer. in labour law in an era of globalization, ed. by joanne conaghan, richard michael fischl and karl klare. oxford: oup. deakin, simon. 2011. the contribution of labour law to economic and social development. in the idea of labour law, ed. by guy davidov and brian langille, 156-175. oxford: oup. deakin, simon and wilkinson, frank. 2005. the law of the labour market: industrialization, employment, and legal evolution. oxford: oup. dukes, ruth. 2011. hugo sinzheimer and the constitutional function of labour law. in the idea of labour law, ed. by guy davidov and brian langille, 57-68. oxford: oup. engels, friedrich. 2010 (originally published 1884). origin of the family, private property and the state. london: penguin classics. ewing, keith. 1988. the death of labour law. 8 ojls 293-300. fredman, sandra and fudge, judy. 2013. the legal construction of personal work relations and gender. 7 jerusalem review of legal studies 112-122. freedland, mark and kountouris, nicola. 2011a. the legal characterization of personal work relations and the idea of labour law. in the idea of labour law, ed. by guy davidov and brian langille, 190-208. oxford: oup. freedland, mark and kontouris, nicola. 2011b. the legal construction of personal work relations. oxford: oup. fudge, judy. 2011. labour as a ‘fictive commodity’: radically reconceptualizing labour law. in the idea of labour law, ed. by guy davidov and brian langille, 120-136. oxford: oup. fudge, judy. 2013. from women and labour to putting gender and law to work. in the ashgate research companion to feminist legal theory, ed. by margaret davies and vanessa munro, 321-329. farnham: ashgate. fudge, judy, mccrystal, shae, and sankaran, kamala, eds. 2012. challenging the legal boundaries of work regulation. oxford: hart publishing. goldin, adrian. 2011. global conceptualizations and local constructions of labour law. in the idea of labour law, ed. by guy davidov and brian langille, 69-87. oxford: oup. hepple. bob. 2011. factors influencing the making and transformation of labour law in europe. in the idea of labour law, ed. by guy davidov and brian langille, 30-42. oxford: oup. hyde, alan. 2011. the idea of the idea of labour law: a parable. in the idea of labour law, ed. by guy davidov and brian langille, 88-97. oxford: oup. james, grace and busby, nicole, eds. 2011. families, caregiving and paid work: challenging labour law in the 21st century. cheltenham: edward elgar. kahn-freund, otto. 1977. labour and the law, 2nd ed. london: stevens & sons. langille, brian. 2011. labour law’s theory of justice. in the idea of labour law, ed. by guy davidov and brian langille, 101-119, oxford: oup. levi-strauss, claude. 1971. the elementary structures of kinship. boston: beacon press. mill, john stuart. 1869. the subjection of women. london: longmans, green, reader and dyer. mundlak, guy. 2005. recommodifying time: the working hours of ‘live-in’ domestic workers. in labour law, work, and family, ed. by joanne conaghan and kerry rittich, 125-156. oxford: oup. mitchell, juliet. 1984. women the longest revolution: essays on feminism, literature, and psychoanalysis. new york: random house. mitchell. richard, ed. 1995. redefining labour law: new perspectives on the future of teaching and research. university of melbourne: centre for employment and labour relations law, occasional monograph no 3. mitchell, richard. 2010. where are we going in labour law: some thoughts on a field of scholarship and policy in process of change. monash university: workplace and corporate law research group, working paper no 16. ryan, louise, barnard, catherine, and deakin, simon, eds. 2004. the future of labour law: libor amicorum bob hepple qc. oxford: hart publishing. rubin, gayle. 1997. the traffic in women: notes on the political economy of sex. in the second wave: reader in feminist theory, ed. by linda nicholson, 27-63. new york: routledge. sankaran, kamala. 2011. informal employment and the challenges for labour law. in the idea of labour law, edited by guy davidov and brian langille, 223-232. oxford: oup. sen, amartya. 1999. development as freedom. oxford: oup. supiot, alain. 2001. beyond employment: changes in work and the future of labour law in europe. oxford: oup. weiss, manfred. 2011. re-inventing labour law. in the idea of labour law, ed. by guy davidov and brian langille, 43-68. oxford: oup. zatz, noah. 2011. the impossibility of work law. in the idea of labour law, ed. by guy davidov and brian langille, 234-255. oxford: oup. __________________________________________________________________________________ __________________________________________________________________________________ 19 jeremy c bradley book review __________________________________________________________________________________________________________________ feminists@law vol 3, no 2 (2013) __________________________________________________________________________________________________________________ lisa downing, the subject of murder: gender, exceptionality, and the modern killer (university of chicago press 2013) cloth $75.00 isbn: 9780226003405 published may 2013 paper $25.00 isbn: 9780226003542 published march 2013 e-book $7.00 to $25.00 isbn: 9780226003689 published may 2013 jeremy c bradley[footnoteref:1]* [1: * jeremy c bradley holds lectureships at the london school of business and finance and at glion institute, switzerland. jeremycbradley@jeremycbradley.com.] because the lives of the wicked should be made brief. for the rest of us, death will be a relief. we all deserve to die![footnoteref:2] [2: ‘epiphany’ from sweeney todd (stephen sondheim, composer).] the epigraph is a lyric taken from sweeney todd: the demon barber of fleet street. a well-known musical turned film, sweeney todd tells the story of one benjamin barker who seeks revenge rather indiscriminately by slitting the throats of his barbershop clients. a thoroughly engaging if graphic story, todd embodies a typically modern view of what murderers look and act like. his skin is pale, his eyes a deep hue, he is well-spoken and mild mannered, except when using his razorblade to slash a victim. at the same time, he is the person ‘no one would expect to be a cold-blooded killer’ and his accomplice, mrs lovett – who disposes of the bodies by mincing them into pies – is the more-or-less idealised version of the doting maiden. she is eager to settle down, to spend a life with mr todd, who completely ignores her on his quest for revenge. while fictional, sweeney todd is emblematic of general perceptions about the murdering subject. on the one hand, the murderer is seen as the ‘boy next door’ – kind, gentle, and unassuming. that is until it comes to light that actually the man living next door is a murderer. then the conversation changes: ‘there was always something a bit odd about him’; ‘i never felt comfortable around his property’; ‘he gave me the creeps’. as lisa downing points out in her brilliant new book the subject of murder, this discourse is important as it essentially ‘others’ the murderer. for if the murdering subject is seen as ‘different’ than ‘us’ despite the initial reactions about him being ‘seemingly average’, we can construct murderers as exceptional, aberrations not like the rest of us. part and parcel of her methodology, downing reflects on foucault’s argument that a murder defendant’s behaviour is made to retrospectively correspond with his identity as a criminal (8). the aim of the narratives about the subject – whether in the form of legal testimony or in the form of a story as with todd – is to show how the defendant resembles the crime and fits the profile.[footnoteref:3] the use of the masculine pronoun here is important, for as many feminist legal scholars point out, liberal conceptions of law have painted the picture of the ‘rational’ person as an autonomous, rugged man ‘geared toward maximizing his self-interest effectively, efficiently, and expediently’.[footnoteref:4] this is evident in legal standards such as the ‘reasonable man’ which position rationality akin to masculinity; and as downing shows, women who murder are often treated particularly harshly or as though they were not really female at all (102). in what follows, i review downing’s book with particular emphasis on the theoretical and practical attention she draws to the relationship between gender and murder. [3: michel foucault, abnormal: lectures at the collège de france 1974-1975 (graham burchell trans, verso 2003) 19-20.] [4: rosemarie tong, ‘feminist perspectives on empathy as an epistemic skill and caring as a moral virtue’ (1997) 18/3 journal of medical humanities 153, 154.] i. nineteenth century europe downing begins the first section of the book with a case study of pierre-françois lacenaire (1803-1836), ‘a murderer, forger, and thief, a dandy, and a poet’ (35). lacenaire is a particularly interesting subject because of his infamy as a criminal hero. the words ‘egoism’ and ‘individualism’ recur in connection with lacenaire (43) and suggest a tension that is felt in the murdering subject. this conception of the murderer as ‘artist’ is one that downing traces throughout lacenaire’s ‘career’ and indeed throughout the discourses on a number of murderers throughout the nineteenth and twentieth centuries. laced to this discourse is the equally enigmatic, if slightly more palpable, act of suicide. ‘if killing (oneself or the other) takes on the status of a conscious rejection of the status quo, it seems that it was ripe for appropriation as both a heroic and an aesthetic act’ (46). this is complicated in lacenaire deliberately dubbing his execution a suicide. lacenaire himself articulates it in the following way: a man alone against all others, but a man strong and powerful in his genius, rejected by society since the cradle, who has sensed his power and who has employed it for evil; a man who has studied everything, understood everything in depth; a man who would give his life twenty times over to repay a kindness; a man who feels wrong without being able to express it, but whose soul is no stranger to anything beautiful or noble; a man, in sum, who, while despising his peers, has to do more violence to himself in order to arrive at evil than many who have achieved virtue.[footnoteref:5] [5: pierre-françois lacenaire, mémoires de lacenaire avec ses poèmes et ses lectures (monique lebailly ed., albin michel 1968) 95.] downing’s concern here is with the degree to which lacenaire emerged as a subject rather than an object of discourse about criminality (52). permitted to define himself, lacenaire constructs a singular and consistent narrative whereby he grants himself autonomy by the very act of murdering. media accounts of the day were polarised: many praised lacenaire as an artist, while some others demonised him as a symbol of dangerous revolution and radical romanticism. in any event, the accounts granted lacenaire a sense of uniqueness and individuality (54-5). a few years after lacenaire’s ‘suicide’, another prominent murderer would rise to fame. but her case (and indeed her identity) would be treated very differently than lacenaire’s. marie lafarge (1816-1852) was found guilty of poisoning her husband and sentenced to life imprisonment, despite widespread doubt regarding the evidence used to convict her. as with lacenaire, lafarge’s case intrigued the media. one newspaper reported that a government could keep its people from unrest if it provided ‘a firework display every evening for the masses and a lafarge trial every morning for the educated classes’.[footnoteref:6] unlike lacenaire, however, lafarge was treated very differently by virtue (vice?) of her gender, even though she worked perhaps harder to create an autonomous identity, producing 6,000 letters, countless articles, two volumes of memoirs, and a three-part book entitled heures de prison (54). [6: edmond and jules de goncourt, les homes de lettres (charles demailly) (e dentu 1860) 151.] downing argues that it should come as no shock that lafarge felt the need to write so prolifically (62). without a public defence or an identity as a ‘criminal hero’, lafarge would have felt compelled to defend herself and her innocence. unfortunately, her attempts would mostly be in vain, the discourse on femininity generally labelling women who committed crimes as hysterical and unfeminine. an article appearing more than a decade after lafarge’s death from tuberculosis sums up the sentiment: [a] woman’s crime, a feminine crime, has something particularly odious and more perverted about it. women kill more readily for revenge, and therefore they bring to their killing a sort of refinement. and the female poisoner has a thirst like a drunkard – with this difference – she pours her drink down the throats of other people.[footnoteref:7] [7: georges claretie, ‘femmes criminelles’(23 july 1994) le figaro.] as downing points out, such descriptions paint ‘the woman criminal as more wily and deceitful than the male’ (69). it is assumed that lafarge would profess innocence because ‘of an innate feminine deceptiveness, not because in a cultural climate in which femininity bore the burden of signifying passive, gentle, maternal care, the acceptance of one’s own nonconformist violence would result in a monstrous self-identification that was ontologically impossible to assume’ (69). i would also argue, in line with martha nussbaum, nicola lacey,[footnoteref:8] and anthony trollope, that we think about why women commit crimes in the first place (assuming that lafarge was guilty). surely some of them do so for the ‘normal’ reasons – greed, anger, jealousy, and insanity – but do they also do so as an act of subversion, to ‘raise themselves above the quagmire of what we call love’?[footnoteref:9] if this were true, it would certainly explain why female criminal behaviour has been sanctioned so much more strictly than male. [8: see: jeremy c bradley, ‘the public intellectual finds her public: martha c nussbaum’s philosophical interventions’ (2013) 14/1 international public management review 57.] [9: anthony trollope, the way we live now (chapman and hall 1875).] downing picks up on this line of thought in her case study on jack the ripper (72). this chapter is particularly engaging as downing takes a non-traditional view in discussing the still unidentified jack. as with lafarge and lacenaire, it can be argued that the widespread press surrounding the ripper case led to its infamy (89). but rather than focusing on the gender and occupation of jack’s victims (women prostitutes), downing suggests that a focus on the gender of the murderer is more important to elucidating the social dynamics. it is the male subject who is ‘commonly culturally encouraged to identity as transcendental, [an] agentic subject, and to find heroism in an idea of freedom enacted at the expense of an “other”’ (94). in the few cases where the sex killer is a female (two of which will be discussed below), ‘public condemnation wholly replaces the jokey, hero-worshipping discourses provoked by the cases of male rippers’ (94). ii. twentieth century anglo-america downing does well to argue that the creation of the female murdering subject is culturally (and therefore normatively) different than that of the male. while there may be general disgust as to the crimes of both, public disgust is magnified with the female. seen to be shirking her role(s) as woman and all that comes along with that, the female subject is often treated more harshly – this is true not only in public perception but in actual criminal sentencing procedures as well (153). nowhere is this more evident than in the case of myra hindley (1942-2002). hindley, along with her partner ian brady, enacted the moors murders between 1963 and 1965 near manchester. the victims were five children between the ages of 10 and 17. as with the other subjects examined in downing’s book, the media took a keen interest in the case. the crimes were reported in nearly every english-language newspaper in the world,[footnoteref:10] not least in part because of the ‘concatenation of circumstances’ that brought together a ‘young woman with a tough personality’ who had been ‘taught to hand out and receive violence from an early age’, with a ‘sexually sadistic psychopath.’[footnoteref:11] [10: duncan staff, the lost boy (bantam press 2008) 7.] [11: malcolm macculloch as quoted in staff, ibid, at 294.] the dominant narrative of hindley as a ‘monster’[footnoteref:12] has also been retold outside media reports and legal proceedings. children living in england in the late 1960s and throughout the 1970s were advised not to stay out too late playing in the streets lest ‘myra should get them’.[footnoteref:13] this view of hindley as a bogie (wo)man, as well as the more potent media and political forces, ignore the possibility that hindley was, in at least some ways, a victim in her own right. the dominant narrative further denies any conceptual possibility of hindley’s redemption or rehabilitation (133). but what if myra hindley had not met ian brady? would she still have turned out to be england’s most notorious serial killer? furthermore, had she looked ‘ordinary’ in her mug shot would the same revulsion be felt against her? the perceptions of hindley having violated traditional gender role stereotypes are countered by a narrative of her as a victim of both her upbringing and of brady’s influence (118). on my view, a promising response to violent crimes such as hindley’s is to flip the script on the standard narrative of victim and perpetrator, in order to disrupt the ‘woman-as-victim’ paradigm. this paradigm, while certainly useful in many respects, draws a strict line between those who commit crimes and those who are the victims of such crimes, making it difficult to talk about cases like hindley’s that seemingly defy these roles (122). the ability to see hindley as both a victim and a perpetrator may make it more palpable to consider the influence her family, brady, and the media had on her. in this vein, research on the role of victims in oppressing other victims might be particularly useful and downing’s book is an effective starting place. [12: b morrissey refers to the ‘monsterisation’ and ‘mythification’ of the stories told about hindley in: ‘crises of representation, or why don’t feminists talk about myra?’ (2002) 16 australian feminist law journal 109.] [13: as told to the author in personal interviews and as reported in claire valier, theories of crime and punishment (longman 2001).] but what of the ‘traditional’ male murdering subject in the contemporary age? are there derisive myths surrounding him? downing examines this possibility in a case study of dennis nilsen (1945 –). nilsen proceeds along a continuum similar to that of lacenaire and lafarge by conceiving of himself as an artist. this is a striking thought because it underscores the codification of murder within western culture. it is assumed that the experience of killing is one that cannot be easily represented. while a number of books, films, paintings and the like seek to depict murderous scenes, few do so with the viewpoint of the murderer firmly in mind. nilsen breaks this third wall by constructing his own works of art in a way that calls forth a cultural dialogue on homosexuality, love, lust, and blood (136-44). a gay man himself, nilsen would attract his victims at bars in the soho neighbourhood of london, taking them home and then murdering them. he would clean the bodies and take photos of his victims, whom he claims to have found both erotic and beautiful. as downing argues, there are important repercussions for patriarchal society in nilsen’s crimes and the depictions of them (145). linking nilsen’s crimes to ‘the homosexual’ reinforces a gendered and homophobic stereotype of the abnormal, sexually aberrant gay man. similarly, myra hindley’s sexual relationships with women whilst she was in prison have been the subject of much discourse. these narratives ‘of the exception and of the monstrous, projected on to the figure of the killer, are used to shore up the comforting façade of social normality. the use of these discourses keeps the majority righteous, and isolates the deviant few’ (145). a further act of public isolation occurred in the case of aileen wuornos (1956-2002) whose victims were men that had attempted to or succeeded at raping her whilst she worked as a prostitute. downing contends that wuornos’ particularly harsh treatment by the media and by the general public (her ‘story’ about killing rapists is generally doubted, for example) can be attributed to class and gender norms which would demonise not only wuornos’ identity as a prostitute, but also her sexuality in her personal life – she was a lesbian. as one of the few women to be sentenced to death for her crimes in recent years, downing questions the assumption that the courts treat women more leniently. her research shows, in fact, that women’s punishments are considerably more punitive in violent female homicide cases ‘especially when the murdering woman can be seen to flout blatantly other cultural expectations of femininity’ (153), a point that is no doubt reflected in myra hindley’s case as well. that feminists have been slow to jump to the defence of either wuornos or hindley is of particular concern here. those that do evaluate the cases through a feminist lens tend to do so with the idea of the female murderer as a victim of abuse and patriarchy. while elements of this surely exist, downing argues that there is unwillingness on the part of many feminists to accept women’s capacity for violence. downing’s position here is an odd conundrum given the rhetoric of anti-essentialism where women ought to be seen free of generalised and overarching identity characteristics (163). as i mentioned in relation to the hindley case, seeing female violent offenders as both victims and agents may be a way forward, a point that downing does pick up on later in the text. this reversal in treatment of violent offenders can potentially disrupt the ominous message inherent in claudia card’s statement on wuornos’ sentencing: ‘the message to other women is clear: violent women are abnormal, criminal, and will not be tolerated.’[footnoteref:14] [14: claudia card, ‘review of lynda hart, fatal women: lesbian sexuality and the mark of aggression’ (1995) journal of the history of sexuality 150, 52. ] the final chapter in downing’s book (168) is an expose on child killers in the twentieth and twenty-first centuries. while the chapter in itself is interesting and informative, i found it ultimately the weakest in the book. downing is right to point out that non-adult murderers are dealt with especially severely, at least in the public perception, but the cases she uses to demonstrate this point (columbine in particular) do not seem to me to be as gripping or compelling from a feminist standpoint as do the others. this could be in part because i grew up in the united states at the time of such incidents, where we constantly lived in apprehension that a fellow classmate might blow up or shoot up our school at a moment’s notice. perhaps this is downing’s point – the child killer has been constructed in such a way as to be feared before he even emerges. all-in-all, downing’s book is a timely and relevant examination of the roles public perception, the construction of class and gender norms, and the socio-political, play in shaping our understanding of and response to murder and murderers. by de-othering the murderer, downing offers a startling conclusion: perhaps we all have the innate capacity to kill. if so, what does this say about the way we punish those who have crossed that line? acknowledgments thanks to rufus knight-webb for sharing his thoughts on the subject of violent crime with me. i also owe a debt of gratitude to the kent centre for law, gender and sexuality who granted me a visiting scholar post in november 2012 where i researched feminist responses to empathy for violent offenders. references bradley jc, ‘the public intellectual finds her public: martha c nussbaum’s philosophical interventions’ (2013) 14/1 international public management review 57. card c, ‘review of lynda hart, fatal women: lesbian sexuality and the mark of aggression’ (1995) journal of the history of sexuality 150. claretie g, ‘femmes criminelles’ (23 july 1994) le figaro. downing l, the subject of murder: gender, exceptionality, and the modern killer (the university of chicago press 2013). foucault m, abnormal: lectures at the collège de france 1974-1975 (graham burchell trans, verso 2003). de goncourt e and j, les homes de lettres (charles demailly) (e dentu 1860). lacenaire p, mémoires de lacenaire avec ses poèmes et ses lectures (monique lebailly ed., albin michel 1968) morrissey b, ‘crises of representation, or why don’t feminists talk about myra?’ (2002) 16 australian feminist law journal 109. staff d, the lost boy (bantam press 2008). tong r, ‘feminist perspectives on empathy as an epistemic skill and caring as a moral virtue’ (1997) 18/3 journal of medical humanities 153. trollope a, the way we live now (chapman and hall 1875). valier c, theories of crime and punishment (longman 2001). _________________________________________________________________________________________________________ 2 _________________________________________________________________________________________________________ 1 andreas pettersson pettersson power and normality in paratransit feminists@law vol 2, no 1 (2012) power and normality in paratransit – individual autonomy in welfare state law andreas pettersson[footnoteref:1]* [1: * doctoral student, law, umeå university, sweden. andreas.pettersson@jus.umu.se ] introduction the aim of this article is to reflect upon the relationship between the individual and the swedish welfare state law. more specifically the aim is to critically engage with questions of power, autonomy and dependency arising from disability law by using analytical tools from feminist theory and feminist legal scholarship. in the nordic countries, both feminist scholarship and disability scholarship rest on a strong ideological tradition wherein the welfare state is perceived as both the subject driving egalitarian emancipation for women and for people with disabilities, and as the object for critical analyses. this ideological tradition is only becoming more complex over time. with emancipatory success comes power and recognition, as feminist and disability causes are being incorporated into the mainstream agenda. however, at the same time, new challenges and vulnerabilities emerge, for example in the form of material retrenchment or ideological backlash. american feminist scholar nancy fraser has made the point that the foremost objective for critical research with an emancipatory approach is to challenge institutionalized injustice (fraser 2008). in addition, british feminist scholar sylvia walby has recently put forth what she perceives as the three major challenges for the feminist movement: the engagement with government, the intersection with allies and competing forces, and the intensification of neoliberalism (walby 2011:9). from the perspective of disability research in the nordic welfare states, these challenges to women’s emancipation are also the challenges to disabled people’s emancipation. thus, feminist scholarship and disability scholarship have every incentive to engage with these challenges as mutual allies and supporters. the article will draw upon my own studies in nordic disability law and especially special transport law. special transport services cater to the needs of people who, for certain reasons, cannot utilize general public transport. enjoying freedom of movement in daily life, for instance in utilizing means of transport to travel wherever one desires to go, takes on special meaning and importance for those with impaired mobility, impaired vision and the like. public transport is often inaccessible for people with disabilities and so many depend upon compensatory measures, such as special transport services. despite the everyday character of the issue this is no small matter. an individual’s ability to move about in society as part of her or his daily life is an important precondition for the possibilities for social participation. the capacity – or lack thereof – to decide when and where to go in one’s immediate surroundings highlights issues of power, autonomy and dependency, all of which are embedded in such an apparently mundane thing as taking a trip in a car. it is necessary to put these issues into context. specifically, this means not only the context of swedish welfare state law, but also that of disability and feminist ideologies. finally, this article discusses whether these issues can be better understood when considered through nancy fraser’s redistribution-recognition-representation dilemma (fraser 1997, 2000, 2001, 2003, 2005, 2008, nash & bell 2007). feminism challenging universalism in social research the swedish welfare state is often described as universalistic, with comprehensive citizenship entitlements to social benefits and services, generous benefit levels, communitarian funding of welfare state provisions through taxation, egalitarian redistribution, and a major commitment to full employment. another important characteristic is that entitlements to services and benefits are based on citizenship, such that the communitarian funding of social welfare reflects and reinforces the idea of social citizenship (sainsbury 1996:31–32). universalism is thus often considered a dominant feature of the modern swedish welfare state, and it has been described as resting upon two fundamental and mutually reinforcing principles – the universal idea of citizenship based on social rights and the normality of waged work (kettunen 2006:60). from a feminist point of view this idealistic description is neither obvious nor self-evident. throughout the history of the swedish welfare state, the principles of universalism have constantly been supplemented with various group specific measures (christiansen & markkola 2006:22). this has led to a degree of complexity that becomes visible when one, for example, observes compensatory services aimed at increasing participation in society for people with disabilities, such as special transport services. rather than being universally available, access to services or benefits from the welfare state is governed by criteria determining which claims and needs are legitimate and which are not. the distribution of resources and access to services is based on the dominant political conception of justice that forms the basis for the social construction of normality (sainsbury 1999). access to services thus tends to be governed by criteria rooted in perceptions of normality (gunnarsson 2007:194). from a theoretical and individual perspective these legal criteria, together with individual rights and obligations, form a qualification process where normality is articulated (wennberg 2008, gunnarsson 2007:192–196, gunnarsson & svensson 2009:220). from the viewpoint of a feminist legal analysis the process of getting access to services – such as for instance the special transport services – is not ‘universal’ at all. access to specific services or benefits requires that individuals be constructed as worthy enough, or sufficiently needy, in order to be included in the right category and thus deemed eligible. in effect, the law constructs people through this qualification process. this process of construction and categorization operates according to the logic of separation. with this logic the creation of distinctive legal categories, often in the form of dichotomies, also creates dual normalities (svensson 1997:53–69). the dual normalities typically have different characteristics. the normality constructed for eligibility to services is sometimes described in some detail, particularly with regards to bodily or mental malfunctions. an example of this is when the law describes enduring mobility impairments causing considerable difficulties when getting on and off, paying, sitting and standing onboard vehicles in the general public transport system. the other constructed normality, people who are not eligible for services, is however often not described explicitly at all, but rather implied by all the things it is not. in the example above, the non-eligible normality would, for instance, include all people without any mobility impairments, but also for example people with quite severe mobility impairments which are not considered enduring in character. feminist legal scholars have shown not only how such ongoing construction of normalities undermines the perceived universalism of the swedish welfare state, but also how it undermines the perception of access to social entitlements as being either ‘needs based’, that is, available to anyone who has a need for assistance or services or ‘residence based’, that is, available to anyone residing in the country. rather, the ongoing constructions of normalities in swedish welfare state law can be understood as defining a social citizenship in law (gunnarsson 2003, gunnarsson 2007:192–200, wennberg 2008). on the individual level, this social citizenship in law provides a complex web of inclusion in, or exclusion from, different normalities. as we shall see below, through the example of special transport law, this social citizenship in law creates by itself a complicated dichotomy of dependency and autonomy in the welfare state. a feminist understanding of the swedish welfare state the intersection between law and welfare state rationality is central to the understanding of feminism in a swedish context. the comprehensive welfare state is important because of its huge influence on the material conditions of life in swedish society (gunnarsson et al 2007:9–10). in feminist analyses the structure of the modern welfare state has been described through the concepts of ‘the social insurance state’ and ‘the social service state’ (anttonen 1997 & 1998). the concept of the social insurance state refers to the welfare state structures that guarantee basic economic security for the citizens. that of the social service state refers to welfare state structures that provide a maternalistic and caring social policy. as such, the social insurance state provides benefits aimed at income maintenance and individual economic independence, while the social service state provides care and assistance in coping with daily life. both of these welfare state concepts are therefore instrumental in establishing the boundaries of social citizenship for any group which depends on welfare state benefits and services (anttonen 1997:11–17). each mode of the welfare state, the social insurance state and the social service state, embodies certain important legal characteristics. the social insurance state rests on individual rights to claim cash benefits in specific situations, such as old age pension, unemployment insurance, or sickness benefit, all of which are generally regulated and administered on a national level. in comparison the social service state emerges as decentralized and full of nuances and variations at the structural level. it is generally situated in the municipalities and the counties, which both enjoy comprehensive local self-governance in matters of social policy and welfare law. local self-governance is often also perceived as an important ideological value in itself, especially regarding the legitimacy of the welfare state. the social service state is typically regulated by so-called framework legislation where the vague and open ended language of parliament acts and national government decrees serve merely to establish a framework which is then filled by administrative authorities, professions and organizations in the society. its administration is characterized by wide normative discretion exercised by the authorities, and the legislation then mainly sets forth standards against which actions and activities can be measured (vahlne westerhäll 2002:60; gunnarsson et al 2007:7–10). the social service state appears to be perpetually set in a borderland where normative legal patterns and patterns of social policy collide and intermingle (wennberg 2008:358). never understood as purely legal or purely political, the law of the social service state can thus be viewed as inherently pluralistic (vahlne westerhäll 2002:59). this normative pluralism further complicates the already complex picture of the rationalities that govern services for people with disabilities in the social service state. it has been observed in disability research that local economic and political rationalities can create quite forceful norms that challenge both individual rights and municipal obligations (nordgren 2009:18). disability in the welfare state – equal participation in society perceptions and definitions of disability have changed significantly over time. in the 1970’s the global understanding of disability experienced the so called ‘environmental turn’ where the perception of disability evolved from a medicalized characterization of the individual to a definition located in the environment and the social and political context. central themes in the nordic understanding of disability may be traced back to the so-called ‘normalization principle’ which was formulated mainly in the 1960’s. this principle, built upon a strong critique of segregation and exclusion, embraced the idea that citizenship rights and duties should be expanded to the entire population (traustadóttir 2009:12). the normalization principle took as its point of departure in a drive among scholars and welfare operators to end segregation for people with intellectual disabilities and to create living conditions as close as possible to those of the ‘normal’ population. in the context of the realities for people with intellectual disabilities in the 1960’s and 1970’s the normalization principle represented an emancipatory liberation movement. from being separated from their families at an early age and brought up in large government-run institutions, these persons were now mainstreamed into the larger society. the normalization movement spearheaded support for parents with disabled children, admission to schools in the vicinity of the families’ homes, and support for adult persons to live and work in the community. however, the normalization principle also contained seeds of ideological conflicts. normalization, almost by definition, requires a normative understanding of normality itself. the principle thus highlighted a tension between normality as defined collectively, that is, to live like other people do, and freedom for the private individual to define for oneself what it meant to lead an independent life, and thus to be able to also reinforce diversity within the larger normality (askheim 2005:17–24). at the core of modern disability ideology in the swedish welfare state is the notion of full and equal participation in society. this is a result of a long and gradual emancipatory process in close connection with the expansion of the social service state (lindberg 2006). full participation for people with disabilities is a notion with many nuances. a main component has been a social understanding of participation, that is, integration and mainstreaming instead of segregation, and inclusion instead of exclusion. an inherent tension has been noted also in the notion of participation. the idea of full participation in society can be given somewhat different meanings according to whether it is understood from a traditional nordic perspective with a collective focus on the society as a whole, more specifically on the operations of the social service state to empower individuals, or, from an individual perspective, with a focus on the private individual’s possibilities to choose to participate in various activities and social relations. participation in the collective and nordic sense requires a social context and a welfare state. in the individual sense it is (probably) quite possible to fully participate alone (gustavsson 2004). disability researchers in the nordic countries have developed an understanding of disability as relational, as a mismatch between a person’s capabilities and the functional characteristics of the environment. disability is viewed as situational, contextual and relative rather than situated in some essence of the person (tøssebro 2004:4). the nordic relational approach, also called the environmentally relative model of disability, has been widely adopted by researchers and authorities alike in the nordic welfare states and has exercised a considerable influence in both legal and policy documents (traustadóttir 2009:12–13). autonomy and disability in the social service state the swedish welfare model has been described as social democratic in outlook and committed not only to equal opportunities but to equality of outcomes (sainsbury 1996:32). this understandably creates a severe tension between the ethics and rationality of the welfare state and neoliberal ideology. the services of the welfare state aimed at people with disabilities are often described as moving away from collectivist and egalitarian notions and moving toward more freedom of choice for the private individual among a multitude of competing service providers (lindberg & grönvik 2011:93–96). however, when approached on an individual level, and/or with a critical perspective, the perceptions are often the opposite. for example, when scholars estimate eligible people’s attitudes toward the special transport services the results indicate that the more dependent the person is upon the services, that is, the more frequently the services are being utilized by that person, the more negatively that person views the services. over time, as more elements of procurement, competition and individual choice are introduced in the services, the results indicate that frequent travelers are increasingly unhappy with both quality and quantity of services (strömberg 2011, knutsson 1998). individual autonomy in the context of the nordic welfare states usually takes on a different meaning compared to classical liberal notions. autonomy in the nordic countries, as understood by disability researchers, is often perceived as the individual freedom and ability to take part in all kinds of communal and private activities. rather than mere freedom of choice or freedom from government interference, this concept of autonomy is linked to the freedom to fully participate in society on an equal footing with everybody else. such nordic autonomy rejects paternalism, but the means for doing so include making available and accessible to the private individual the full arsenal of society and government (helmius 2004a:114, 2004b:106). in this context the welfare state can also be perceived as the foremost emancipatory agent from an individual autonomy perspective. this egalitarian nordic concept of individual autonomy resonates very well with nancy fraser’s idea of participatory parity as a key component of social justice. the concept of participatory parity may be more or less realized depending on the social relations between individuals in the community. in any case, the concept inevitably raises questions about power relations in that community. regardless of whether institutionalized injustices and inequalities manifest as maldistribution, misrecognition or misrepresentation, they must be viewed comprehensively, that is, as evidence of a status in society, and not merely as a singular issue of, for example, the distribution of certain social goods or a personal feeling of identity (fraser 2008). as a consequence of the comprehensive view of individual autonomy, the material scope of the various individual legal rights becomes a very important component in the social citizenship of the private individual in the swedish welfare state. article 3 of the un convention on the rights of persons with disabilities explicitly lists individual autonomy, including the freedom to make one’s own choices, as a general principle underlining the entire convention. accordingly, the impact on individual autonomy ought to be important when interpreting law concerning services for people with disabilities. how to reinforce and support individual autonomy for persons with disabilities within the context of welfare state law is of course a complex and multi-faceted issue. disability research has shown that the operators of the social service state, that is, the people of various professions employed within it, tend to take on the role of experts and become chief interpreters of the needs and desires of persons with disabilities, even in situations where the private individuals concerned may very well be able to articulate their own needs (barron 2000:121–122). so although the expansion of the social service state has indeed served to liberate people with disabilities from segregation and a status as objects for medical dominance, interactions between private individuals and welfare state operators may create perceptions of dependency. the underlying values of professional systems and the rationality of the social service state may still take precedence over such values as, for example, that of individual autonomy (sou 1998:48, sou 1999:21, askheim 2005:92, nordgren 2009). the special transport services special transport services for people with disabilities gradually became available in the entire country of sweden during the 1970’s. these services are currently regulated by the 1997 special transport services act, which defines them as “specially arranged transports for people with disabilities”. they provide a telephone call based service whereby a private individual who wishes to go somewhere simply orders either a regular taxi or a specially adapted vehicle to pick up and drive him or her to a certain pre-agreed upon location, usually a short or medium short distance away. the act specifically mandates every swedish municipality to provide its citizens with special transport services of good quality. municipalities may commission the county or a private enterprise to coordinate and provide the services, which they frequently do. nevertheless, the respective municipality always carries the final responsibility towards the private individual for providing the services. the most frequently utilized means of transportation in sweden for people both with and without disabilities is the car. the majority of people who have no problems in using public transport still tend to favor the car. people with severe visual impairments and severe mobility impairments are among those groups who use general public transport only rarely, with those with multiple impairments tending to use it very rarely, if at all. the frequency of impairments increases with age and, as a result, the majority of people with multiple impairments are elderly. because women live longer than men, a large majority are women. in practice, for several diverse groups, the special public transport is the primary, and sometimes only, option when travelling short or medium short distances (davidsson 2001). swedish disability policy, informed and influenced by eu disability policy, is increasingly focused on mainstreaming the transport sector. in the disability context this means making the general public means of transportation accessible and accommodating for as many people as possible. key notions are ‘design for all’ and ‘universal design’ (prop. 1999/2000:79, skr. 2002/03:25, sou 2003:87:55–63, skr. 2005/06:110, prop. 2008/09:93, von axelson 2006:39). although these mainstreaming efforts are intended to gradually and progressively widen the group of people that can utilize general public transport, still a number remain effectively barred or hindered from utilizing even this more accessible general public transport system. the special transport services first became mandatory upon the municipalities through a clause in the social services act in 1982. this affirmed the status of special transport as a social right and put it firmly in the center of welfare state administration. during the 1990’s disability policies shifted insofar as special transport services were no longer viewed primarily as a social issue but rather as an issue of transportation. regulation of the services was transferred from the social services act in 1997 and supervision of the services was transferred from the national board of health and welfare to the national traffic authorities. despite the policy shift the importance of the special transport services for people with disabilities in their daily lives has, of course, not become any less ‘social’. however, it is possible that moving away from the official social policy context has served to hide the importance of the services for such ideological values as independent living and equal participation in society (vägverket 2001:6). constructing the subject – the normality in special transport services law not everyone may utilize the special transport services. first there is a screening process to determine if a person is at all eligible for services, that is, the worthiness of each individual to receive services is weighed and measured. the special transport services act offers certain legal criteria. entitlements under the act are only given to persons with impairments that are considered to be permanent and not temporary in nature. while the criteria in the act are given as written at the moment of legislation, the criteria in practice still evolve, adapt and change in a manner that is typical of the framework law. over time the difficulties in obtaining an entitlement have increased (sou 2003:87:87–88). if an individual clears the screening process and gets an entitlement to services, then there is virtually no end to the possible limitations and conditions that the responsible authority may impose. this follows from clause 9 of the act which gives the municipalities wide latitude in prescribing which means of travel are allowed, which areas are included, and other matters. for example, entitled persons are often not free to decide when to travel, but may be limited to certain hours of the day or even certain days of the week. from an individual autonomy perspective the situation appears to slowly deteriorate as individual needs are subordinated to fiscal and administrative rationalities, limiting both access to and personal influence over services (ekensteen 2006:75–76). the number of trips allowed over a certain period may be also limited. further, people are often not permitted to decide for themselves who to travel with (prop. 2005/06:160:243). if a traveler wants to go with a spouse or a partner, this may not be allowed. similarly, to go with one’s children is sometimes allowed, sometimes not, and sometimes only if the child is younger than some arbitrary age limit. to go together with someone that has not cleared the screening process, for example a friend or co-worker, is often either impossible or requires this other person to pay a hefty price for the trip, thereby discouraging this person from doing so. people may not even always be allowed to decide where to go, as there are often several destinations that are off limits for various reasons. for example, if the destination is on the other side of some administrative border (for instance in another municipality), or another traffic provider is tasked with providing special public transport to a certain destination (such as a hospital or a dentist’s clinic) the special transport services might therefore not be allowed to drop off at this destination (sou 2003:87:48, 55–63, 75–77). accordingly, the legal and administrative criteria of the welfare state construct boundaries in time and in space for when and where people are allowed to go, effectively limiting freedom of movement in daily life for individuals with disabilities. an example of how the construction of normality operates is the legislative development concerning the power granted to the municipalities under section 9 of the act to restrict and limit the number of trips during a specified period of time. this municipal practice has been severely criticized by many disability organizations as it is considered discriminatory compared to general public transport and, in any event, the private individual should always be free to decide autonomously how often to travel (prop. 1996/97:115:50, prop. 2005/06:160:255–256). the national government has acknowledged the ideological validity of this criticism (prop. 2005/06:160:256). however, the government’s solution to the problem was not to abandon the practice per se. instead, in 2006 it changed section 9 so that the municipalities may not restrict trips deemed essential for the entitled individual. that is, in order to be able to exercise individual autonomy in deciding how many trips to make, the trips must fit into the normality for trips that are deemed sufficiently essential for the law to actually allow for individual and autonomous decisions. thus, the critique from the disability organizations broke up the rationality of municipal discretion, only to have it renegotiated to a qualification process in which individual needs are to be measured against a normality constructed by law. in viewing the law on special transport services for people with disabilities from an individual autonomy perspective it appears that people are constructed by law as members of an incompetent and dependent collective. much essential power to enforce autonomous travel decisions in daily life is subject to approval from the welfare state operators and traffic corporations. this stands in stark contrast to other possible normalities, namely that of the general public transport traveler and that of the regular taxi customer, who both according to market rationality presumably decide freely, independently and individually when and where to go, and also with whom. individual autonomy vs social service state rationality the opposing forces of a normative egalitarian ideal and the right of the private individual to exercise autonomous decisions in daily life may be viewed as a built-in contradiction in the social service state (askheim 2005:25). the qualification process governed by legal criteria contains paternalistic and moralistic features that discipline the collective of citizens towards a normality that defines social justice in the welfare state. what determines whether a specific individual gets a specific right to services, and also the quality and extent of this right, is entirely connected to how the individual is constructed by law and how the particular right fits into the perception of normality in the pre-existing redistributive systems of the welfare state. when normality is not attained, social exclusion for groups or individuals is the unavoidable result (gunnarsson & svensson 2009:220-222). the pluralism which characterises the social service state is in itself a complex structure of stability and change. the framework law is designed to allow change in values and methods within a stable organizing system. at the same time the institutions and the operators of the welfare state are ‘normalized’ to the framework system and the stability and endurance of the system is tangible. the redistributive transfer of material care and services to individuals is viewed as wholly legitimate, while the non-transfer of ultimate power over important daily life decisions is mostly hidden as it falls outside the scope of the ideal social citizenship. redistribution, recognition and representation – a broader understanding of autonomy and power over the last two decades the focus of international disability law and policy appears to have been firmly set on formal social justice. the goal has been equalization of opportunities. this focus can be seen as part of an international trend that appears to be much inspired by the american civil rights movement and the americans with disabilities act (danermark & gellerstedt 2004:341). the un convention on the rights of persons with disabilities represents a firm global acknowledgement of the equal dignity and autonomy of people with disabilities. in the convention the principle of social justice appears to have been influenced by a more multidimensional understanding of equality. this more nuanced and complex notion of equality is rooted in the perception of disability as a social construct. it is also evident in the core legal principle that equality requires equal treatment of equal situations and different treatment of unequal situations (mjöll arnardóttir 2009:43). the complexities of both cultural differences and material disadvantages have been incorporated into a broader understanding of social justice. much like the driving forces behind the feminist movement, the emancipatory drive behind the disability movement seeks both a redistribution of economic resources and the recognition of lived experiences (hugemark & roman 2007:29). as a collective, the disability movement has for a long time also grappled with issues of representation, both in the political system and within the community at large. some observations indicate that the swedish disability movement is slowly moving away from the traditional consensus-building of the nordic political culture, toward a more campaign oriented approach and a more outspoken role in the form of lobby groups for disabled people (lindberg & grönvik 2011:101–121). again, it is important to remember the swedish context where the welfare state is criticized for its perceived shortcomings and contradictions, but also acknowledged as the mighty vehicle that drives emancipation for people with disabilities (lindqvist 2007:12–28). still, overwhelming evidence, supplied by disability research over the years, indicates that also in modern swedish society people with disabilities suffer both socioeconomic maldistribution and cultural misrecognition. on a structural level, people with disabilities can be viewed as a bivalent collective in that they are differentiated by both the political and economic structures as well as by the cultural and value based structures (fraser 1997:19). nancy fraser uses the terms redistribution and recognition to illustrate different aspects of social justice for such bivalent collectives. while redistribution focuses mainly on socio-economic injustices, recognition focuses mainly on cultural injustices (fraser 1997, 2003). these cultural injustices are often invisible through normative practices of the culture, and examples include being routinely maligned or disparaged in stereotypic fashion in cultural representation and in daily life interaction, as experienced by many persons with disabilities. misrecognition should not be understood as just any cultural or symbolic bias; rather, recognition should be understood as a status in society (fraser 2000:113). this power dimension enhances the importance of recognition as an aspect of social justice. misrecognition proper does not occur in a purely cultural realm of symbolic patterns of stigmatizing or demeaning evaluation, but rather in cultural value patterns that are institutionally anchored and systematically subordinating. a distinct benefit of understanding misrecognition as status subordination is that it locates the wrong in the social structure of society, instead of in the essence of some individual or collective psychology (fraser 2003:31). to the two-dimensional redistribution-recognition dilemma fraser has added symbolic and political representation as the third dimension. misrepresentation occurs when political and legal boundaries are at work in denying parity of participation. when particularly severe, misrepresentation of people takes the form fraser calls ‘misframing’, that is, when the boundaries in the community are drawn so as to not only deny parity of participation but to deny participation at all (fraser 2005). when viewing the possibilities for moving about in the community from the perspective of the individual, in the context of dependence upon the special transport services, such a three-dimensional pattern of injustice becomes visible. the services are funded mainly by the public and, to a much lesser degree, through fees from the travelers. as such, the services are a form of redistribution within the swedish welfare state. however, frequent travelers continually experience the services as an inferior and limiting factor in their daily lives, compared to what is available to other travelers by general public transport (vägverket 2009). at the same time travelers indicate that they are paying higher fees for the same or worse services (strömberg 2011). these factors indicate that maldistribution is at hand. to achieve social justice it is necessary that all individuals may participate in social interaction on equal terms. this means that to overcome status subordination the misrecognized party must be established as a full and equal member of society, capable of participating on a par with all other people. such participation on equal footing is frequently called for by people with disabilities and their organizations (danermark & gellerstedt 2004:342). frequent travelers with the special transport services also continually experience that utilizing the services confers on them a stigmatizing status and in some cases even subjects them to degrading treatment from professionals. among the worst features of the services, as indicated by users, is the requirement to order a trip several hours or sometimes even days ahead. viewed as a lived experience, the inability to quickly or spontaneously move about in the community clearly illuminates the individual’s lack of power and autonomy over important decisions in daily life (vägverket 2009, strömberg 2011). that this systematic, or institutionalized, injustice is considered legitimate and politically acceptable illustrates that misrecognition is also present. the individual’s lack of power and autonomy in daily life finally raises questions about representation and ‘misframing’. fraser describes the politics of framing as a process where the boundaries of the political community are drawn up (fraser 2005). the swedish disability movement has traditionally tried to dismantle boundaries for participation by strategies of affirmative framing, that is, by contesting the boundaries, and seeking to redraw them to include people with disabilities in the political community. however, the social service state is in a constant mode of drawing and framing. the framework law, the normative pluralism and the strong position of local self-governance, all require that the boundaries and normalities be articulated again and again. this is a process in which only a strong and visible symbolic and political representation can ensure affirmative framing. as people with disabilities currently lack such forceful representation, they are also misrepresented within the political system. the microcosm of individuals depending on special transport services thus reflects the three-dimensional injustice that many disabled people experience in the swedish welfare state. conclusion one of fraser’s key points is that the redistribution, recognition and representation dimensions of social justice are not contradictory to each other; they do not present an either/or choice. instead most social injustices are quite complex and often combine features of maldistribution, misrecognition and misrepresentation. this redistribution-recognition-representation dilemma is felt directly by many disabled persons. the disability movement, much like the feminist movement, is therefore faced with this complex and challenging dilemma when articulating claims for social justice (hugemark & roman 2007:29). when fraser argues for a paradigm of social justice that includes redistribution, recognition and representation she abandons the presumed ontological distinctions of redistribution as material, recognition as cultural and representation as political, by tracing the distinctions to historical developments in social structures. in the case of the lived experiences of many persons with disabilities it is obvious that systematic subordination, stigmatization and a general lack of power in society come together with economic hardship of varying degrees. these injustices can be viewed as three-dimensional as they are rooted both in economic structure and in the status order of society (fraser 2005). from a macro perspective, the swedish welfare state is often described as excelling in the redistributive aspect, but the normality of the ideal social citizenship creates a pressure at the individual level that leads to misrecognition and misrepresentation of people with disabilities. and from the micro perspective of the special transport services, the absence of being able to control basic things in daily life can be viewed as a systematic and institutionalized pattern of cultural and political values. in this case the pattern is operating within the legal framework of the social service state. to move toward greater social justice a change is needed in this cultural and political pattern, a change that will allow the welfare state to continue with the comparatively successful redistribution of material goods, but that also transfers power and autonomy over basic daily life decisions to the concerned individuals. references anttonen, a. 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(2004) ‘introduction to the special issue: understanding disability’. scandinavian journal of disability research 6:1, 3–7. vahlne westerhäll, l. (2002) den starka statens fall? en rättsvetenskaplig studie av svensk social trygghet 1950-2000. stockholm: norstedts juridik. von axelson, h. (2006) ‘från individuell anpassning till generell tillgänglighetsförbättring’ in brusén, p. & printz, a. (eds.) handikappolitiken i praktiken. om den nationella handlingsplanen. stockholm: gothia. vägverket (2001) publikation 2001:86. färdtjänst enligt lagen om färdtjänst i jämförelse med socialtjänstlagens tidigare bestämmelser. redovisning och analys av tillämpning och effekter utifrån rättsfall. borlänge: vägverket. vägverket (2009) kvalitet inom färdtjänsten – en kvalitativ studie – vägverket oktober 2009. borlänge: vägverket. walby, s. (2011) the future of feminism. cambridge: polity. wennberg, l. (2008) social security for solo mothers in swedish and eu law. uppsala: iustus. government committees sou 1998:48 kontrollerad och ifrågasatt intervjuer med personer med funktionshinder. sou 1999:21 lindqvists nia nio vägar att utveckla bemötandet. sou 2003:87 färdtjänsten och riksfärdtjänsten. government proposals prop. 1996/97:115 mer tillgänglig kollektivtrafik prop. 1999/2000:79 från patient till medborgare en nationell handlingsplan för handikappolitiken. prop. 2005/06:160 moderna transporter prop. 2008/09:93 mål för framtidens resor och transporter. government reports skr. 2002/03:25 uppföljning av den nationella handlingsplanen för handikappolitiken. skr. 2005/06:110 uppföljning av den nationella handlingsplanen för handikappolitiken. __________________________________________________________________________________ 2 __________________________________________________________________________________ 1 fudge women workers: is equality enough? _________________________________________________________________________________________________________ feminists@law vol 2, no 2 (2013) _________________________________________________________________________________________________________ women workers: is equality enough? judy fudge[footnoteref:1]* [1: * leverhulme visiting professor, kent law school; lansdowne chair and professor, faculty of law, university of victoria, canada. jafudge@uvic.ca. ] introduction i am going to discuss women’s work and the question i am asking is whether equality is enough. my title is intentionally ambiguous and provocative. the phrase ‘women’s work’ is essentially ambiguous in a way that the expression ‘men’s work’ is not. women’s work can refer either to waged work or it can include what has traditionally been viewed as women’s natural work – that of unpaid care and household work. by focusing on the patterns of change and continuity in women’s work it is possible to trace the profound transformations in national and transnational labour markets that have been driven by global capitalism. the question i have posed – is equality enough – is designed to trouble the normative goal of women’s claims for equality in employment. i am concerned with the questions equality of what and for whom and how we are to achieve it. there is an intimate relationship between women’s paid work – employment – and legal norms of equality. in fact, the relationship is so close it is hard to recall that sixty years ago equality had no resonance when it came to women’s work. the historic achievement of second-wave feminism, which emerged in the 1970s, ‘was to make women fully free sellers of their own labour by substantially dismantling the legal and normative edifice which had mandated women’s subservience.’[footnoteref:2] [2: j. brenner, ‘the best of times, the worst of times: us feminism today.’ (1993) new left review 20, 101,103.] law and especially equality rights occupied a privileged place in feminist campaigns for equality in employment. colleen sheppard’s metaphor of overlapping layers or concentric circles of anti-discrimination norms in international labour law also captures the expanding nature of women’s equality rights in employment.[footnoteref:3] [3: c. sheppard, ‘mapping anti-discrimination law onto inequality at work: expanding the meaning of equality in international labour law.’ (2012) international labour law 151, 1.] the goal of my lecture is to historicize the narrative of the expansion of the legal definition of equality and women’s employment – to recontexutalise and re-interpret this progressive narrative in light of changes in the labour market and political discourse. while the legal norms for women’s employment have shifted, first from protection and exclusion in the 1950s to anti-discrimination and formal equality in the late-1960s and 1970s and then to substantive and transformative equality in the 1980s and 1990s, the path of women’s position in the labour market has not been teleological, from worse to better treatment, but, rather, contradictory.[footnoteref:4] [4: j. fudge, ‘from segregation to privatization: equality, law and women public servants, 1908-2000’ in b. cossman and j. fudge, eds., privatization, law and the challenge to feminism (toronto: university of toronto press, 2002) 86-127.] this non-linear pattern is not surprising if we consider that not all women are similarly situated in the labour market. social relations operating at different scales and along different axes create hierarchies among groups of women differentiated in terms of race, migrant status, and ability. women’s claims to equality in employment have become more nuanced and complex as the contours of the gender order have been redrawn to reflect the growing diversity between women and a deterioration in what has been the normative or standard employment relationship for men. my lecture unfolds in four stages, beginning with a précis of the progressive expansion of legal equality norms, followed by a short conceptual interlude, when i discuss the concepts that shape my counter-narrative. the story i recount is about how equality norms are confounded by the simultaneous intensification and erosion of gender in the labour market in developed economies. i will use canada and, occasionally, the united kingdom, to illustrate the changes in the labour market and gender order. this narrative calls into question the potential of equality norms, however expansive, to solve the problems women workers face in the wake of global austerity. the expanding legal norm of equality using international labour law as her illustration, colleen sheppard has mapped concentric circles of equality law that expand outward along four dimensions: first, the norm – from formal to transformative equality; second, the personal scope – from standard employment to precarious and informal work; third, the ground or characteristic – from a single ground or characteristic of discrimination to multiple or intersecting ones; and fourth, the scale – from national to transnational relations. she chronicles how, from a narrow beginning as a formal notion of treating like alike, equality has expanded through indirect or effects-based discrimination to address systemic inequalities at work that are related to structural constraints of the market, the family and community.[footnoteref:5] equality’s expansionary logic propels it into to more and more spheres. [5: sheppard, supra n. 2. ] the first concentric circle comprises equal treatment or formal equality in employment relationships. two international labour conventions adopted in the 1950s, one providing for equal remuneration for men and women and the other offering protection from discrimination on race, colour, sex, religion, political opinion, national extraction or social origin, exemplify this approach.[footnoteref:6] however, two limitations to the equal treatment norm combine to severely restrict its potential to redress women’s inequality at work. first, formal equality tends to benefit those women workers who most closely resemble men. not only does this limit the number of women who are able to use equality rights to reduce their subordination at work, it fosters assimilation to the standard male employee. second, since the instruments only apply to formal employment, women in informal employment or engaged in precarious employment arrangements that diverge widely from the male employment norm cannot invoke them. [6: sheppard, supra n. 2 , referring convention 100, equal remuneration, 1951, and convention 111, discrimination (employment and occupation), 1958.] despite these constraints, the two ilo equality conventions also contained the kernels of an alternative approach, by providing a limited possibility to challenge apparently neutral norms that have a detrimental effect on women’s opportunities for, and terms and conditions, of employment.[footnoteref:7] [7: the equal remuneration convention provided for equal pay of work of equal value and the discrimination (employment and occupation) convention, article 5, allows for special measure to meet the needs of ‘persons who for reasons such as sex, age, disablement, family responsibilities or social or cultural status are generally recognized to require special protection or assistance.’ ] these seeds grew to form the second circle in the 1970s, when several jurisdictions, including the uk, adopted legal instruments to combat indirect or adverse-effects discrimination.[footnoteref:8] not only was the reach of anti-discrimination law expanded, this approach led to two remedial developments. workplace norms that have the effect of excluding groups of workers without good reason can be challenged and employers can be legally compelled to revise the exclusionary rules, policies and practices. moreover, even employers who can justify the impugned rule or practices can be legally required to accommodate workers who are detrimentally affected by a justifiable rule so long as the accommodation does not create undue hardship. [8: equal pay act, 1970. ] the legal recognition of indirect discrimination paved the way for a further expansion of the reach of anti-discrimination law to the systemic or institutional level. instead of focusing on discrete rules and policies, this approach appreciates that discriminatory assumptions are deeply embedded in work place practices. affirmative action or, in canadian parlance, employment equity policies place two broad types of positive obligations on employers.[footnoteref:9] the first solution to the problem of systemic discrimination is preferential treatment in the hiring and promotion of individuals from historically disadvantaged groups. the second technique is to identify and eliminate apparently neutral rules and practices that disproportionately exclude individuals from historically excluded groups. in a pivotal decision involving a challenge to fitness standards for firefighters that were based exclusively on men’s physiology, the supreme court of canada adopted such an approach. the unanimous judgment, penned by beverly mclachlin in 1999, two years before she was appointed as the first female chief justice to canada’s highest court, rejected the prevailing technique of accommodating individual women because it ‘may serve to entrench the male norm as the “mainstream” into which women must integrate.’[footnoteref:10] [9: employment equity act (s.c. 1995, c. 44), first enacted in 1986. ] [10: british columbia (public service employee relations commission) v. british columbia government service employees' union [1999] 3 s.c.r. 3.] however, implementation of the norm of systemic equality has been tentative, contested and incomplete. there is no clear definition of affirmative action in ilo instruments, although as sheppard notes, there is support for it in two united nations’ instruments.[footnoteref:11] in jurisdictions where preferential hiring mechanisms have been adopted, they tend to be confined to the public sector or large employers, and even there, they are likely to be of the soft touch variety – voluntary, limited to reporting or attached to procurement. the uk’s equality act follows this pattern.[footnoteref:12] by contrast, affirmative action norms that take the form of robust preferences in hiring and promotion tend to generate a backlash. more promising are positive obligations that focus on transforming exclusionary policies and practices. to be successful, the systemic approach, which comprises the third circle of equality norms, depends on effective oversight and enforcement either through civil society organizations such as trade unions or state agencies. [footnoteref:13] [11: ibid., 10. sheppard notes that guidance on positive measures is provided in two united nations instruments, the convention on the elimination of all forms of discrimination against women and the convention on the elimination of racial discrimination, both of which provide for ‘special measures’ and ‘special temporary measures’.] [12: the equality act, 2010.] [13: sheppard, supra n. 2, 9, referring to c. sheppard, inclusive equality: the relational dimensions of systemic discrimination in canada (montreal: mcgill-queen’s university press, 2010). ] but the problem with even this conception of legal equality is that it is unable to address inequalities that arise outside of formal employment relationships. the ilo’s decent work agenda, which was adopted in 1999, extends fundamental rights such as equality to informal work.[footnoteref:14] the ilo’s global equality reports emphasize the link between anti-discrimination, equality in all forms of work, poverty reduction and economic development.[footnoteref:15] [14: decent work. report of the director-general to the 87th session of the international labour conference. geneva, 1999. ] [15: see for example, equality at work: the continuing challenge global report under the follow-up to the ilo declaration on fundamental principles and rights. international labour conference, 100th session, report i(b). geneva, 2012. ] the final circle that sheppard surveys takes equality law beyond the borders of the nation state to consider how under globalization status inequalities on the basis of race and migrant status are more firmly entrenched at the same time as social and economic inequality has deepened. the ilo adopted a rights-based approach to migration in the multilateral framework on migration in 2006 which promotes equal treatment of national and migrant workers. in 2008 it issued the declaration on social justice, which reaffirmed the decent work agenda’s focus on reducing poverty and creating sustainable development.[footnoteref:16] both the framework and the declaration as a form of soft-touch regulation. [16: towards a fair deal for migrant workers in the global economy, report v. international labour conference, 92nd session. geneva, 2004; declaration on social justice for a fair globalisation. international labour conference, 97th session. geneva, 2008.] in essence, the expanding circles of equality law combine anti-discrimination mechanisms that are designed to remedy horizontal inequality between groups with social and economic rights that target vertical inequality based on class.[footnoteref:17] this trajectory has been driven, in part, by the iterative critique of legal scholars, feminists prominent amongst them, of limitations in earlier generations of equality rights.[footnoteref:18] [17: sheppard, supra n. 2, 2, citing b. hepple, ‘equality and empowerment for decent work.’ (2001) international labour review 140, 5. see also s. fredman, ‘redistribution and recognition: reconciling inequalities.’ (2007) south african journal on human rights 23, 214. ] [18: see hepple, ibid.; fredman, ibid.; sheppard, supra n. 12; s. liebenberg and b. goldberg, ‘the interrelationship between equality and socio-economic rights under south africa’s transformative constitution.’ (2007) south african journal on human rights 23, 335. ] yet, despite its momentum, the meaning and scope of equality is extremely controversial. in an article entitled ‘equality: the most difficult right,’ chief justice beverly mclachlin of the supreme court of canada described equality as a tantalus promising ‘more than it can ever deliver.’[footnoteref:19] she warned that ‘absolute substantive equality is impossible’ because of ‘the diversity of our society and its foundation in the competition of the marketplace.’[footnoteref:20] according to the chief justice, ‘a market-based representative democracy necessary tolerates a certain degree of disparity, economic and otherwise.’[footnoteref:21] [19: b. mclachlin, ‘equality: the most difficult right’. (2001) supreme court law review 14 (2d) 17, 20. ] [20: ibid.] [21: ibid. ] this reminder of the limits to equality in a market economy suggests the need for a different image of the development of equality law. instead of regarding the legal approach to equality as a series of concentric circles rippling throughout society, it may be more accurate to picture it as ‘a swirling vortex of energies that compete and collide’[footnoteref:22] in the turbulence of market economies. this latter metaphor captures not only the dynamic tension between different conceptions of equality, but also the conflict between a commitment to social and economic equality and globalised capitalism. [22: j. conaghan, ‘intersectionality and uk equality initiatives.’ (2007) south african journal on human rights 23, 317, 332.] conceptual interlude before describing the disjuncture between the expanding legal conceptions of equality and growing inequality in the labour markets of canada and the uk, i will explain two concepts – social reproduction and gender order – that i use to organize my narrative. the concept of social reproduction refers to the social processes and labour that go into the daily and generational maintenance of the working population.[footnoteref:23] it encompasses the human capacities available to create and maintain social bonds, which includes the work of socializing the young, building communities, reproducing shared meanings, affective dispositions, and horizons of value that underpin social cooperation,[footnoteref:24] as well as the tasks of daily provisioning. social reproduction has predominantly been organized in households through normative families and kin relations, characterized by a gendered division of labour. [23: fudge, supra n. 3; j. fudge, ‘the new duel-earner gender contract: work-life balance or working-time flexibility?’ in j. conaghan and k. rittich, eds., labour law, work and family: critical and comparative perspectives (oxford: oxford university press, 2005) 261-88. ] [24: n. fraser, ‘can societies be commodities all the way down? polanyian reflections on capitalist crisis’. (2012) fondation maison des sciences de l’homme, no. 18, august, 4.] like every social system, capitalism imposes a specific relationship between the production of goods and services and the process of social reproduction of the population. what distinguishes capitalism is the tendency towards the separation of the key site of social reproduction (the household) from productive relations (the workplace). this separation of production from reproduction gives rise to an essential contradiction in capitalist societies – the conflict between the standard of living of workers and the drive for accumulation, which is the need to make profits. the state’s role is crucial in mediating this contradiction and organizing social reproduction.[footnoteref:25] [25: a. picchio, social reproduction: the political economy of the labour market (cambridge: cambridge university press, 1992). ] a key component of the state’s role is to stabilize a specific gender order.[footnoteref:26] gendering is a process in which social significance is attached to sexual difference which, in turn, structures organizations, affects social and political relationships and becomes intrinsic to the construction of significant social categories and political identities. every gender order encompasses a gendered division of labour between social reproduction and production, which is sustained through gender norms and social arrangements that are achieved at particular times and in particular places. [26: fudge, supra n. 3.] the gender order is stable to the extent that it has been institutionalized in certain key sites such as the family, labour market, firms, schools, and state policies. for this to be achieved, there must be a set of shared understandings, practices and policies about the appropriate roles and expectations of men and women as well as some fit, however temporary, fragile and incomplete, between the processes of reproduction and production. there is a complex relationship between equality law and the gender order. legal rights, like other norms, emerge out of the struggles over meaning, representation, power and legitimacy by social actors. although these struggles over meaning are dynamic, they can nonetheless take on stabilized forms at specific moments and can be reproduced over time.[footnoteref:27] stabilization can be achieved as a result of compromises reached by social actors. if they become widely shared among social actors, these compromises can congeal as ‘societal paradigms’, which are hegemonic sets of inter-connected premises or meaning systems, and they include gender discourses. however, opportunities for temporarily subordinated identities to extend their representational reach and strength surface during periods of ‘crisis’, which occur when the dominant paradigm’s ability to absorb its internal contradictions becomes compromised. moments of crisis, such as an imbalance between social reproduction and production, are the ‘moments of efflorescence’, which can lead to a shift in the gender order.[footnoteref:28] [27: j. jenson, ‘paradigms and political discourse: protective legislation in france and the united states before 1914.’ (1989) canadian journal of political science 22, 235-58.] [28: ibid., 239.] counter narrative after the crisis of world war ii, in most democratic capitalist countries a stable and enduring gender order composed of a male breadwinner and female housewife was constructed on top of the keynesian welfare state. it depended upon providing high wages and secure employment to men. tax, labour, family and social welfare law supported this arrangement, and trade barriers created protected enclaves for developed industrial economies. equality in employment for men and women was simply not part of the political discourse. married women were treated as the most marginal of workers, and they were excluded from the labour force.[footnoteref:29] it was not until the mid-1960s that the canadian and uk governments lifted their bans on employing married women in the civil service. [29: fudge, supra n. 3. ] during the 1960s, the expansion in publicly provided services created employment opportunities for women and as men’s wage increases started to stall, married women took on part-time jobs in order to maintain household consumption standards. married women provided a reserve army of workers for the expanding welfare state and growing corporate bureaucracies. the only equality law available to women was equal pay for equal work legislation, which was not enacted in the uk until 1970 (14 years after it was introduced by the canadian federal government).[footnoteref:30] however, equal pay was perfectly compatible with the development of a different, and subordinate, employment norm for women. women were much more likely to work in non-unionized jobs in the service sector on a part-time or temporary basis, and they were crowded into a small band of occupations at the bottom of the job hierarchy.[footnoteref:31] sex segregation became a viable alternative to excluding married women from the labour market. [30: equal pay act, 1970 and female employees equal pay act (statutes of canada 4-5, elizabeth ii-chap. 38).] [31: fudge, supra n. 3. ] in the late 1960s and early 1970s, the second wave of the women’s movement pushed to dismantle the last remnants of discriminatory laws, practices and policies. women demanded equal rights, and won greater legal and political independence from men. improved access to the labour market and social welfare programs, especially for lone mothers, provided a material base for women’s independence. so, too, did effective and reliable mechanisms for reproductive control. divorce laws were liberalized and marriage breakdown increased. but formal legal equality did not address the underlying gender division of labour. women’s employment was shaped by the gendered division of labour that continued to give them primary responsibility for caring for human beings. the increase in women’s paid employment resulted in a recalibration of the gender order. although the primary breadwinner was still male and unpaid domestic work continued to be performed by women, the male breadwinner was supplemented by a subordinated women worker. by the late 1970s, women no longer constituted a reserve army; their employment was necessary, but the employment arrangements that enabled them to balance their domestic responsibilities did not provide them with economic independence. second-wave feminism caught fire as the proportion of women in the labour force grew and the state recognized the importance of women’s employment. for a brief moment in the early 1980s in canada, substantive equality became dominant in canadian political discourse. pay and employment equity, a national and universal publicly funded child care system, and labour standards to improve the conditions of part-time workers were recommended by a series of federally appointed task forces and royal commissions. [footnoteref:32] [32: ibid. ] however, feminism’s equality momentum was difficult to sustain when the economy went into decline. the deep recession at the beginning of the 1980s hit especially hard in canada’s manufacturing sector, where employment shrank dramatically. economic restructuring and neoliberal policies designed to promote flexible employment led to a deterioration in employment standards, dropping unionization rates, declining real wages and the spread of precarious work.[footnoteref:33] the feminization of labour was matched by a feminization of employment norms: employment terms, conditions and arrangements, such as low pay, poor benefits, part-time and temporary work, which historically have been associated with women, proliferated. increasingly, men began to take these jobs too. [33: ibid. and j. fudge, ‘the new workplace: surveying the landscape.’ (2009) manitoba law journal 33, 131-49.] equality began to be seen as a leveling down discourse in labour law and equality claims by women had less political resonance in a climate in which employment conditions and prospects for men were deteriorating. these changes fuelled the backlash against substantive equality that deepened during the 1990s. by the end of the 1980s, the dilemmas facing women in the new gender order could not be resolved through expanding the definition of sex discrimination. in some ways, the visibility and relevance of gender differences in the labour market began to disappear, as the employment experiences of men and women converged.[footnoteref:34] [34: s. walby, gender transformations (london: routledge, 1997). ] during the 1990s, the pattern of women’s labour market participation more closely resembled men’s and the gap between men and women’s wages had narrowed. however, this convergence is not necessarily a cause for celebration. in canada, between 1980 and 2000, men’s median weekly earnings dropped by 7 per cent while women’s grew by 13 per cent.[footnoteref:35] from 2000 to 2005, median earnings remained constant for men but rose by 4 per cent for women. the most dramatic improvement was among women aged 45 to 49 (17.8 per cent) and those at the higher end of the wage distribution (16.0 per cent).[footnoteref:36] the women’s labour market also began to polarize, which was a marked departure from the 1950s and 1960s, when women’s employment was much more homogenous. age, race, migrant status and household composition are increasingly important for predicting women’s labour market outcomes.[footnoteref:37] [35: r. morissette and a. johnson, are good jobs disappearing in canada? analytical studies branch research paper series (ottawa: statistics canada, 2005) 13.] [36: m. drolet, ‘why has the gender wage gap narrowed?’ (2011) perspectives on labour and income spring (ottawa: statistics canada) 4. ] [37: fudge, supra n. 32. ] yet, in other ways the relevance of gender has intensified. in 2007, the wage gap between men and women in canada was 21 per cent. although gendered occupational segregation is declining, it is still very persistent. in 2009, 67 per cent of all employed women worked in teaching, nursing and related health occupations, clerical or other administrative positions, or sales and service occupations, compared with 31 per cent of employed men. the labour force participation rate of women is still below that of men, mostly due to women’s childrearing responsibilities. women with children under the age of three are less likely than other women to have a job. married women with children continue to be disproportionately concentrated in part-time employment.[footnoteref:38] in the uk, the percentage of married women employed part-time is one of the highest in the developed world.[footnoteref:39] [38: v. ferrao, paid work: women in canada: a gender-based statistical report (catalogue 89-503-x) (ottawa: statistics canada, 2010) 21, 12, 13. ] [39: the uk has the third highest rate of part-time employment for women of the 34 oecd countries, j. plunket, the missing million: the potential for female employment to raise living standards (resolution foundation, 2011). ] women’s increased employment rate and working hours have not been matched by a concomitant shift in unpaid domestic work to men, although men have increased their contribution to domestic labour. an increase in long hours of work, especially amongst men, and an increase in the length of the standard work week during the 1980s and 1990s contributed to a rise in work-life conflict.[footnoteref:40] [40: fudge, supra n. 22; j. fudge, ‘working-time regimes, flexibility, and work-life balance: gender equality and families’ in c. krull and j. sempruch, eds., demystifying the family/work conflict: challenges and possibilities (vancouver: university of british columbia press, 2011) 170-93. ] the contradictory pressures of gender erosion and intensification are driving the reconfiguration of the gender order. there have been two general responses in developed countries such as canada and the uk to the challenge of sustaining social reproduction: work-life balance policies and the commodification of a central component of social reproduction – care work. work-life balance policies are designed to achieve a new accommodation between the processes of production and requirements of social reproduction in light of the breakdown of the post-war gender order. their goal is to institutionalize a form of family-friendly flexibility that makes it easier for individuals and households to combine family life and working life. key components of policies for work/life balance are leave for family responsibilities and flexible working-time arrangements that enable workers to adjust their working time more easily.[footnoteref:41] [41: ibid. ] however, a problem is that these policies can, depending upon their design, either alleviate or reinforce the gendered division of social reproduction labour. in the uk, the long hours of work culture for men runs counter to their invoking the right to request shorter hours. thus, women are much more likely to resort to the flexible working time provisions.[footnoteref:42] although reduced-hour jobs constructed round individual requests are generally of higher quality than jobs constructed as part time, ‘even better would be a fundamental rethinking of the construction of jobs at all levels so they could be offered on a range of different hours packages, abandoning the concepts of part-time and full-time.’[footnoteref:43] [42: a. hegewisch, flexible working policies: a comparative review, research report 16 (manchester: equality and human rights commission, 2009); c. fagan, working time in the uk – developments and debates (nd) http://web.jil.go.jp/english/reports/documents/jilpt-reports/no.7_fagan.pdf (accessed january 8, 2013).] [43: l. dickens, ‘the road is long: thirty years of equality legislation in britain.’ (2007) british journal of industrial relations 45, 463, 469.] moreover, despite the hoopla surrounding the recent reforms in the uk which provide greater flexibility for fathers to use parental leave, the low replacement rate for wages during parental leave virtually ensures that the lower-waged worker, typically the woman, in a two-earner family will take it.[footnoteref:44] these policies cultivate an ideal worker/marginalized caregiver gender order. [44: department for business, innovation and skills, reform of flexible parental leave, november 13, 2012, https://www.gov.uk/government/news/reform-of-flexible-parental-leave (accessed january 7, 2013); l. dickens, 're-regulation for gender equality: from either or to both.’ (2006) industrial relations journal 37 , 299, 306.] in order to promote gender equality proponents of family-friendly policies need to consider the politics of choice. women’s responsibility for childcare is typically seen as an individual choice and women are responsible for its costs. however, policies that enhance individual choice need to attend to the broader structures of employment and social reproduction. policy discourse in canada and the uk has only just begun to register ideas about men’s greater involvement in domestic life. the problem is that so long as men can choose not to care women will have no choice but to do so. the choices of individual women are shaped by the opportunities open to them and the cultural norms that prevail. thus, it is important to increase the incentives for men to take on a greater share of unpaid labour and to challenge cultural norms that associate women with certain kinds of domestic labour if women are to be given a real choice about how they spend their time.[footnoteref:45] what we need are forms of affirmative action polices when it comes to men and domestic work. [45: fudge, supra n. 22; fudge, supra n. 39. ] the benefit of widening the numbers of people who contribute time to caring is that it would not only reduce the individual costs of those who care, extending the experience of caring throughout the members of a society might also nurture a society that is more willing to contribute institutionally and financially to the costs of care.[footnoteref:46] [46: s. himmelweit, ‘economic theory, norms and the care gap, or why do economists become parents?’ in a. carling, s. duncan and r. edwards, eds., analysing families: morality and rationality in policy and practice (london: routledge, 2002) 231, 247.] the second way developed countries such as canada and the uk have responded to the strains on social reproduction caused by too many demands placed on women is via the commodification of care, which is provided either through the market or as public services. low-cost care and domestic services such as fast food and housecleaning are necessary if women are to be able to engage in waged work the way it is currently designed. this solution substitutes for the unpaid labour of female family members waged work by other women. the problem with this strategy is that it may deepen the economic polarization of women on the basis of age, race, ethnicity and migrant status. unless the social reproduction services are provided publicly and financed through redistributive taxes, people accessing these services have an incentive to keep the wages and benefits of providers low. the commodification of caring labour has been characterized as the new wollstonecraft’s dilemma does it strengthen or weaken the gendered division of labour?[footnoteref:47] this dilemma is particularly acute in the current era of globalization. neo-liberal polices have subjected women across the globe to similar pressures, although they have vastly different ways of responding to them depending on their social location. [47: r. lister, citizenship: feminist perspectives (basingstoke: macmillan, 1997).] on the demand side, the feminization of migration is fuelled by the rise in women’s labour force participation, falling fertility rates, increasing life expectancy and the expanding marketization of care in the north. on the supply side, economic trends such as inequalities between highand low-income countries, and insecurity, vulnerability, and instability due to economic crises combine with gender-related factors such as abuse, family conflict, and discrimination to increase the numbers of women who migrate in order to obtain paid work.[footnoteref:48] [48: this discussion is drawn from ‘global care chains, employment agencies and the conundrum of jurisdiction: decent work for domestic workers in canada’ (2011) canadian journal of women and the law 23, 235-64; j. fudge, ‘global care chains: transnational migrant care workers.’ (2012) international journal of comparative labour law and industrial relations 28, 63-70; j. fudge, ‘gender, equality and capabilities’, in t. novitz and d. mangan, eds., the role of labour standards in sustainable development: theory in practice (london: oxford university press and the british academy, 2011) .] women’s transnational migration has contradictory impacts. the employment of migrant women to perform care work in the receiving countries of the north is an individual and privatised solution to the broader problem of combining paid work with unpaid care work. since this solution is only an option for families who can afford it, lower-income families are left in the lurch. it might also contribute to a vicious circle in the host country, in which private solutions delay collective efforts to search for appropriate public policies. while women’s decisions to migrate can increase their financial autonomy and increase their financial contribution to their household through remittances, their absorption into the care markets of the north reinforces the gendered nature of care. moreover, the export of women’s labour results in a ‘depletion of care resources’ that detrimentally affects the families and communities that women have left behind. [footnoteref:49] since it is mostly women who assume the family roles of migrant women, there is a growing need for reconciliation policies in the south.[footnoteref:50] [49: l. benería, ‘the crisis of care, international migration, and public policy.’ (2008) feminist economics 14, 1. ] [50: ibid.] the commodification of care illustrates what nancy fraser called the ‘dangerous liaison between second wave feminism and global capitalism,’ which is the fetishism of waged labour, on the one hand, and the marketization and attack on care provision, on the other.[footnoteref:51] while capitalism dislodges patriarchy, it does not necessarily lead to greater substantive equality for all women. [51: n. fraser, ‘interview’. (2009) european alternatives, october 23 http://www.euroalter.com/2009/interview-with-nancy-fraser/ (accessed august 1, 2010).] conclusion institutionalizing a new gender order is a difficult challenge. women’s labour power has historically functioned as an alternator under capitalism, mediating the tension between reproduction and production.[footnoteref:52] globalization has dramatically heightened and extended this tension. so, too, will the current climate of austerity. [52: picchio, supra n. 24. ] historically, economic crises have resulted in an erosion of women’s, especially married women’s, employment rights.[footnoteref:53] the financial crisis hit first at men’s jobs in manufacturing and construction. however, since the banking crisis has been transformed into a sovereign debt crisis, the state’s ability to act as financer and employer of last resort has been restricted.[footnoteref:54] in uk, the attack on public sector employment and public services has been accompanied by an attack on social benefits. these cuts hit women the hardest.[footnoteref:55] [53: fudge, supra n. 3. ] [54: j. rubery, ‘from women and recession to women and austerity: a framework for analysis’ in m. karamessini and j. rubery, eds., women and austerity: the economic crisis and the future for gender equality (routledge, forthcoming 2013).] [55: d. elson, ‘the reduction of the uk budget deficit: a human rights perspective’. (2012) international review of applied economics 26, 177. ] the processes of social reproduction are relatively autonomous, and women’s relationship to the waged labour market in any country is path dependent, shaped by a range of institutions, norms and policies.[footnoteref:56] however, returning to the male breadwinner and female housewife gender order will be difficult, not only because of the embeddedness of equality norms, but also because of the deterioration in many men’s employment. [56: rubery, supra n. 53. ] the labour market polarization in both canada and the uk has meant that the best off have scooped most of the gains over the past two decades, while those in the middle have seen their situation deteriorate, and the proportion of jobs at the bottom has grown.[footnoteref:57] this polarization in both men’s and women’s labour market outcomes fuels contradictory gender ideologies.[footnoteref:58] social actors and different factions draw on a range of societal resources, including discarded or dominant institutions and ideologies, in an attempt to construct a new gender order. [57: n. m. fortin et al., ‘ canadian inequality: recent developments and policy options.’ forthcoming in canadian public policy, http://faculty.arts.ubc.ca/nfortin/clsrnwp.pdf (accessed january 7, 2013); conference board of canada, ‘canadian income inequality: is canada becoming more unequal?’ http://www.conferenceboard.ca/hcp/hot-topics/caninequality.aspx (accessed january 7, 2013); j. hills (chair) an anatomy of economic inequality in the uk: report of the national equality panel (london: government equalities office, 2012). ] [58: rubery, supra n. 53.] as either the baseball player yogi berra or the physicist niels bohr remarked, prediction is difficult, especially about the future. the two most likely scenarios that will result from the coalition government’s austerity policies are that there will be levelling down of men’s employment norms so that they more closely resemble women’s and some women will be pushed out of the labour market at the same time as others are driven into it.[footnoteref:59] [59: ibid.] there is some evidence of the first scenario. although the private sector in the uk has begun to rally, the jobs that have been created are part time and poorly paid.[footnoteref:60] [60: ‘uk becoming a part-time nation, figures reveal.’ the telegraph, november 12, 2012, http://www.telegraph.co.uk/finance/jobs/9678663/uk-becoming-a-part-time-nation-figures-reveal.html (accessed january 7, 2013); l. elliott, ‘uk unemployment falls as private sector jobs hit all-time high.’ the guardian, 12 december 2012, http://www.guardian.co.uk/business/2012/dec/12/uk-unemployment-falls-private-sector-jobs (accessed january 7, 2013).] the future for women is less clear. however, it is likely that the ideology of women as homemaker will turn out to be selective; married women with children may be encouraged by changes to tax laws and benefits to bow out of paid employment, while lone mothers will be forced into paid employment through more aggressive workfare laws or cuts to benefits.[footnoteref:61] care could become a privilege of those women who have a spouse to support them. [61: rubery, supra n. 53.] what is clear, however, is that when a government is committed to austerity, equality is sacrificed. although equality norms may have an expansionary logic, their implementation can be subject to abrupt reversals. despite the fact that the coalition government did not repeal the equality act introduced by the former labour government in its dying days, it has whittled away at it. not only did the government refuse to commence the dual discrimination provision on the ground that it was too expensive, it repudiated the requirement that employers publish information relating to the gender pay gap.[footnoteref:62] most recently, it announced that it was dropping the requirement for public bodies to consider the impact of policies on social inequality and revoking the powers allowing tribunals to make broad recommendations about future steps to be taken by employers who have been found to have discriminated. according to theresa may, the minister for women and equalities, these changes balance the need to protect people from discrimination and allowing businesses to ‘get on with their jobs’.[footnoteref:63] what is remarkable is that the government saw fit to continue to dismantle elements of the equality act despite the overwhelming objections of the participants in its consultations[footnoteref:64] and without waiting to hear the results of the parliamentary inquiry into women in the workplace, which was appointed in september 2012.[footnoteref:65] [62: home office, ‘frequently asked questions.’ http://www.homeoffice.gov.uk/equalities/equality-act/faq/ (accessed january 7, 2013). ] [63: bbc news, ‘equality laws to be 'simplified' to ease obligations on business.’ may 12, 2012, http://www.bbc.co.uk/news/uk-politics-18077013 (accessed january 7, 2013).] [64: home office, equality act 2010: consultation on repeal of two enforcement provisions, http://www.homeoffice.gov.uk/publications/about-us/consultations/equality-act-wider-enforcement/ (accessed january 18, 2013).] [65: house of commons business innovation and skills select committee, inquiry into women in the workplace, september 4, 2012, final oral evidence january 15, 2013, http://www.parliament.uk/business/committees/committees-a-z/commons-select/business-innovation-and-skills/inquiries/parliament-2010/women-in-the-workplace/ (accessed january 18, 2013).] in canada, the conservative federal government has followed a similar path, cutting public service jobs and watering down the procurement provision in the employment equity act.[footnoteref:66] its decision in 2010 to order statistics canada to delete questions pertaining to unpaid care work on the national census symbolizes its disdain for social reproduction.[footnoteref:67] [66: k. may, ‘government has cut nearly 11,000 public service jobs since budget: clement. ’ ottawa citizen, november 16, 2012, http://www.ottawacitizen.com/business/government+nearly+public+service+jobs+since+budget+clement/7562258/story.html (accessed january 7, 2013); m. g. cohen, ‘federal budget bill and employment equity, bc.’ canadian centre for policy alternative, policy notes, june 1, 2012, http://www.policynote.ca/federal-budget-bill-and-employment-equity/ (accessed january 7, 2013).] [67: h. scoffield, ‘voluntary census deletes questions about unpaid work’, globe and mail, july 28, 2010, http://www.theglobeandmail.com/news/politics/voluntary-census-deletes-questions-about-unpaid-work/article1389740/ (accessed january 7, 2013).] a key problem with mounting a challenge to policies that roll back equality laws is that feminism’s demand for equality has lost its emancipatory edge.[footnoteref:68] equality for women workers is not enough since such claims are compatible with the rampant commodification of care, increasing polarization amongst women, and increasing inequality for men. thus, it is crucial to revitalise feminism by emphasizing solidarity and transformation as well as equality. [68: a. stewart, ‘gender, justice and law in a global market’ in m. davies and v. munro, eds., a research companion to feminist legal theory (ashgate publishing, forthcoming 2013). warwick school of law research paper no. 2012/13, available on ssrn at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2071049 (accessed january 7, 2013). ] solidarity must be cultivated not just amongst women, but also between men and women. jill rubery argues that solidarity is critical in times of austerity; ‘the importance of establishing common ground across the sexes is raised by the danger that the current crisis is changing the role of the state from an agent that in principle promotes gender equality to one that may reverse equality gains made over recent decades.’[footnoteref:69] [69: rubery, supra n. 53.] equality for women workers will be elusive so long as we do not cultivate both ‘new modes of life beyond male and female roles’[footnoteref:70] and foster ‘more diverse employment and working-time patterns without any loss of rights or marginalization’. [footnoteref:71] men as well as women need to be liberated from a rapacious economic system that degrades the environment and does not value the work that goes into maintaining social life. [70: l. gonas, ‘balancing family and work: to create a new social order’. (2002) economic and industrial democracy 23, 59, 64 quoting u. beck, the risk society: towards a new modernity (london: sage, 1992).] [71: j. rubery, m. smith, and c. fagan, ‘national working-time regimes and equal opportunities’. (1998) feminist economics 4, 71, 99.] _________________________________________________________________________________________________ 18 _________________________________________________________________________________________________ 17 feminists@law, vol 4, no 1 (2014) gaia giuliani, 'black and white: history of racial identity in italy' this is a video, with accompanying powerpoint slides, of a lecture given by dr gaia giuliani at the leeds humanities research institute, university of leeds, on 23 october 2013. drawing on her book co-authored with cristina lombardi-diop, bianco e nero: storia dell'identità razziale degli italiani (2013), the lecture traces back the political, cultural and visual history of italian racial identity from unification to the economic boom, through fascism and the post-war era. dr giuliani uses analytical categories derived from political philosophy, critical race theory, whiteness studies and postcolonial studies, and examines political theories of race, scientific literature and legislation related to emigration in order to trace the different processes of self-racialisation in the political discourse from the unification period up to 1936. the lecture also looks at italian contemporary racism, analysing mass culture products (1980s-2007), tv coverage of racist events (2010-2012), and the intertwining of masculinity, virility, whiteness and race in berlusconi’s sexual scandals. gaia giuliani from donatella alessandrini on vimeo. gaia guiuliani is research assistant in political theory and colonial and postcolonial studies at the university of bologna, department of social and political sciences. she has been an honorary visiting scholar at the university of technology sydney, nsw (2007-2011) and at the university of leeds, uk (oct-dec 2013). her first book was beyond curiosity. james mill e la nascita del governo coloniale britannico in india (aracne, roma 2008), and in 2014-2015 she will publish a co-authored book with dr gabriele proglio, distopiestoria della paura nella narrazione fantascientifica e horror dal dopoguerra a oggi (dystopias: history of fear from the aftermath of wwii to today) (le monnier-mondadori education, milano). she will also edit the collective book e gli italiani divennero bianchi. razza, genere e classe nell’italia contemporanea (and italians became white: race, gender, and class in contemporary italy) (ediesse, roma).  she is has also edited a book on affectivities and changes: g. giuliani et al., l’amore ai tempi dello tsunami. amore, sessualità e modelli di genere in mutamento which will be published in may 2014. for a more detailed bio see academia.edu/drgaiagiuliani. persecution on account of one’s gender feminists@law _____________________________________________________________________ nilsson persecution on account of one’s gender __________________________________________________________________________________ feminists@law vol 2, no 1 (2012) __________________________________________________________________________________ persecution on account of one’s gender: refugee status or status quo? eva nilsson* introduction the subject of this paper is women experiencing male partner violence and the determination of refugee status. my central point of departure is the changes that were made in the new swedish aliens act (sfs 2005:716) in 2006 concerning the definition of ‘refugee’. the significance of these changes is that persons who have a well-founded fear of persecution on account of their gender or sexual orientation and who, according to previous legislation, were granted protection as ‘persons otherwise in need of protection’, are now regarded as refugees under the united nations refugee convention. the changes were made in the light of, inter alia, guidelines issued by the united nations high commissioner for refugees (unhcr). these guidelines were made in view of a longstanding recognition that women historically have been particularly disadvantaged by the refugee convention. women have also been underrepresented for many years among refugees in western countries of asylum. this is the case in sweden, as well as in other ‘developed countries’. the global picture seems to be that women are left behind in refugee camps, while men fight, are imprisoned, killed or flee to the west. the predominance of males among asylum seekers is, however, starting to change. according to the united nations population fund (unfpa) globalization has brought with it a ‘feminization of migration’, including an increase in the numbers of women seeking asylum independently of their families. the opinion that it is more difficult for women to be granted refugee status has, however, also been questioned in recent years. statistics from a number of countries suggest rather that women are favoured in the determination of refugee status. in sweden too, women are granted refugee status to a greater extent than men, according to statistics from the swedish migration board. there may be ‘valid’ reasons for this difference. for instance, migration patterns where the man is seeking asylum alone and is followed by the rest of the family, may have an effect on statistics in a way that seems to favour women. according to studies from other countries, ‘derivative persecution’ of female asylum seekers on the basis of their family membership is more readily accepted by decision makers than direct persecution, where the claimant has to establish that she has suffered or fears persecution on a particular convention ground. furthermore, it seems that married applicants can expect a higher likelihood of approval than singles. available statistics in sweden suggest that children are favoured in determining asylum, in comparison with adults. in contrast to the statistical analyses, swedish qualitative studies, however, show that children are evidentially absent from investigations and decisions and that the asylum determination process in matters concerning families is primarily concerned with the father’s grounds for seeking asylum. the qualitative studies that have been carried out to date concerning female asylum-seekers suggest that this is also the case when women seek asylum. hence, in a press release attached to a report published by the red cross about the investigation and assessment of protection needs for women, it was noted that the study reveals ‘gender biases’, and that there is ‘a big gap between the legislation and the reality that asylum-seeking women face today in sweden’ [my translation]. moreover, the swedish refugee advice centre issued a press release and also published an online debate article in connection with the publication of a handbook for a fair asylum determination process, which was precipitated by an examination of documents governing the process, concluding that gender equality does not seem to be favoured in the policy area of asylum, while it is a commonly observed feature in other policy areas. similar observations have been made in a recent study published by the unhcr. this critique raises questions about the basis of equality between women and men in the determination of refugee status in sweden: what values, notions, assumptions or ‘systems conditions’ do the 2006 revision rest upon? i have identified three parallel but sometimes conflicting trends within the area of swedish migration law, each of which is characterized by recent change. the first trend emphasizes rule of law ideals and problems concerning the politicization of migration law. change in this area is towards the ‘juridification’ of migration law. the new swedish aliens act that came into force in 2006 can be viewed as an expression of such a change. it involves a change from matters being dealt with by administrative authorities and the government to a system where appeals are tried in administrative courts. these changes were made in order to strengthen the ‘rule of law’, defined in the preparatory work as requiring ‘uniformity’ and ‘predictability’. the second trend is centered on ‘the globalization threat’ and the ‘feminization of migration’, which i have already mentioned. in this area we see further changes towards restrictive immigration and refugee policies. the third trend is based on the experiences of women who are excluded by bureaucratic and legal practices for determining refugee status. as i have already indicated, in this area we have recently seen a change towards greater inclusion, at least at the level of formal statements in the law. the net result of these changes is not a more inclusive attitude towards migrant women but, as i will argue, a highly restrictive system with an inbuilt structural discrimination against migrant women on the basis of gender, race and class. the first three sections of this paper are structured around these ‘movements’. the first section starts with an analysis of the general provisions governing the determination of refugee status and the changes that were introduced by the new act, as well as the ‘special’ traits of migration law. in the second section, these ‘special traits’ are considered in relation to the ‘globalization threat’: in this context we see a politicization of the process, rather than the ‘rule of law’. these parts of the paper serve to locate the legislative changes concerning ‘persecution on account of gender’ in the overall context of migration law which is considered in the third section. a more detailed account and critique of these changes is provided in the fourth section. finally, in the last part of the paper, my conclusions are presented. general provisions for determining status – the ‘special’ traits of migration law in international legal doctrine it has been observed that migration laws are ‘special’ in many respects. according to dauvergne they are typically marked by high degrees of discretion, maintaining a fixed and law-like appearance while being simultaneously infinitely malleable. she points out, however, that this is starting to change; migration laws are now being imbued with more of a ‘rule of law’ character. the new swedish aliens act can be viewed as an expression of such a change. yet, the act is still marked by demands other than those usually required when providing for the ‘rule of law’. hence, regarding the general provisions of the proceedings it can be noted first that the order of instance in migration matters differs from what is normal in administrative court proceedings in sweden: in normal administrative matters the highest court is the supreme administrative court, whereas in migration matters the highest court is one step lower – the administrative court of appeal. in justifying this divergence the government alleged that one aspect of the ‘rule of law’ in these matters is that it must not take too long for a decision to gain legal force, as there are serious consequences of long waiting times in the asylum process. secondly, grounds for appeal are more limited than in the ordinary administrative process. the justification for this limitation, according to the government, was the basic demand that the new order should deal with matters speedily. despite the introduction of new orders of instance and process, by which administrative authorities and the government were replaced by a system where appeals are tried in administrative courts, the government retains a considerable influence on applications. this is because of its powers to issue regulations: the constitution in the area of migration law allows the parliament to delegate competence to the government in matters that ought otherwise to be regulated in legislation. this can also be understood in terms of the need for ‘speed’ and ‘flexibility’; migration law being an area of law where it is assumed that the government must have immediate control, because of the perceived threat of masses of asylum-seekers crossing our borders. the technical formulation of the legislation can be said to be very much of a framework character, which means that it allows extensive scope for assessing the circumstances in each case. the swedish council of legislation objected to this feature on the basis that several of the substantive rules needed to be further concretized in order to be applied by courts, to create conditions for a reasonably uniform and foreseeable application. however, the government was of the opinion that the substantive rules were ‘sufficiently adjusted’ to allow trial in courts. as justification for this, the government stated that the intention of the investigation (on which the proposed bill was based) was that the ‘rule of law’, ‘uniformity’ and ‘predictability’, would be provided through the specifications that had been made concerning ‘the most important basis’ for forming a judgement. migration law can thus be understood as a particularly politicized area of law, because of the continuing interference by the government as well as the technical formulation of the legislation and the emphasis on speed and flexibility. even the ‘rule of law’, in this branch of law, is defined in such terms. accordingly, the ‘special’ character of migration law implies demands different from those usually required when providing for the ‘rule of law’; globalization and the threat of ‘illegal’ migrants seeking asylum being the key point, bringing with it restriction of refugee law while expanding refugee rhetoric. globalization turning to the second part of my analysis, increasingly restrictive immigration and refugee policies exist in parallel with the free flow of goods, labour, services and capital. as observed by de los reyes and mulinari, the exploitation of cheap labour, which has given rise to the very basis of consumption in the rich world, is no longer tied to specific locations, regions and countries. moreover, globalization has increasingly come to promote political and economic elites, while unstable working conditions, supply difficulties and a fragmented life, become a reality not only for the poor populations on the periphery, but also for subordinate groups in the rich world. accordingly, global processes cannot be separated from the concentration of material and symbolic resources in the western world, for it is this spatial redistribution of inequality that gives the nation's imagined community meaning. perceptions of race fill an important role in re-creating boundaries between ‘us’ and ‘them’, that is, between those who belong to the nation and are entitled to claim the nation’s prosperity and others belonging to other locations and who are, therefore, not entitled. these boundaries are even more important when ‘the others’ are no longer distanced in time and space, but force a reshuffle in the rich world’s social landscape. as noted by dauvergne, the effect of globalization has been to shift the line between ‘us’ and ‘them’ to embrace a new ‘us’ and simultaneously redraw the boundaries of exclusion, such that: ‘[t]he seemingly simultaneous arrival of illegal migrants at borders around the world […] fuels the moral panic: ‘we’ the rich are under siege’. the intensification of border-control measures means that there are now greater incentives than ever to attempt to pass oneself off as a refugee seeking protection in a prosperous western state. refugees and refugee law are therefore now located at the centre of concern about illegal migration. in line with this, ‘[t]he burden-sharing imperative of refugee law casts refugees as the rich (white) man’s burden for the twenty-first century’. the moral panic is also fuelled by the ‘feminization of migration’, which i described earlier. this is particularly the case in the face of the expanded role of international human rights. as dauvergne argues, states now have greater incentives to narrow the scope of refugee law. the growth of human rights norms is therefore paradoxically linked to states pulling away from refugee law commitments. together with the abovementioned critique this raises, however, the question of whether this politicized area of law is not also ‘special’ as regards the swedish policy of gender equality. gender in the swedish definition of refugee: the 2006 revision thirdly, it is important to look at changes which affect the way in which gender is dealt with specifically in the legislation and in practice. the swedish definition of a refugee is set out in chapter 4, section 1 of the aliens act and is based on article 1a(2) of the 1951 refugee convention as amended by the 1967 protocol. however, after the revision in 2006 the definition, in contrast to the convention, explicitly covers persecution on account of gender or sexual orientation. this amendment was made in the light of the unhcr guidelines, but it was also made in the light of the european council qualification directive. the unchr guidelines are, in comparison to the directive, not legally binding. the commissioner’s statements provide, however, legal interpretative guidance for interpretation of the convention and protocol. they also form the basis in many states, including sweden, for recognizing women as constituting a ‘particular social group’ which makes them important sources in any analysis of refugee status. under unchr guidelines the category ‘membership of a particular social group’ cannot be so interpreted as to render the other convention grounds superfluous or as a ‘catch all’ that applies to all persons fearing persecution. thus, to preserve the structure and integrity of the convention’s definition of a refugee, a social group cannot, according to the guidelines, be defined exclusively by the fact that it is targeted for persecution. there is nevertheless no ‘closed list’ of what groups may constitute a particular social group. rather, the term ‘membership of a particular social group’ should be read in an evolutionary manner, open to the diverse and changing nature of groups in various societies and evolving international human rights norms. in the last decade it has been more prevalent for some victims of domestic abuse to be recognized as convention refugees on social group grounds. according to one line of reasoning recognition is restricted to those cases where the state fails to protect the victims of domestic assault because they are women. another line of reasoning simply finds that women who are subjected to domestic violence are persecuted because of their social group (women), since their gender is a substantial factor for their persecution. according to the unhcr the causal link between the persecution and the grounds may be satisfied where there is a real risk of the person being persecuted at the hands of a non-state actor for reasons related to one of the convention grounds. this is the case where the failure of the state to protect the claimant is convention related, or where the risk of being persecuted at the hands of a non-state actor is unrelated to a convention ground, but the inability or unwillingness of the state to offer protection is for a convention reason. furthermore it is sufficient that the convention ground is a relevant contributing factor. it need not be shown to be the sole, or dominant, cause. when the definition in the geneva convention was implemented into the swedish legislation it was emphasized that it is ‘important that the refugee determination takes place in a generous spirit [my translation].’ it is, however, also emphasized in the preparatory work that we cannot apply the convention in a way that, irrespective of the direction, would deviate from its applications in other countries; the work for harmonization within the european union being particularly important. the above-mentioned qualification directive sets minimum standards for refugee status and other forms of international protection for the european union member states. in some areas the directive is close or identical to the convention. in key areas, however, there is a tendency to add more detail, narrowing the interpretations of the refugee definition. for example, the directive, unlike the refugee convention, defines persecution and it also explicitly recognizes gender-specific forms of persecution, including sexual violence (article 9). furthermore, the directive provides a definition of ‘a particular social group’ (article 10). it states that persons shall be considered to form a particular social group where members of that group share an innate characteristic, a common background that cannot be changed, or a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that the group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society. depending on the circumstances in the country of origin, a particular social group might be based on a common characteristic of sexual orientation. sexual orientation cannot be understood to include acts considered to be criminal in accordance with the national law of the member states. gender-related aspects might be considered, without themselves alone creating a presumption for the applicability of the article. the directive has also taken a ‘protection’ position on non-state actors (article 6). in other words, actors perpetrating persecution or serious harm include (a) the state, (b) parties or organisations controlling the state or a substantial part of the territory of the state and non-state actors, if it can be demonstrated that these actors (a and b), including international organisations, are unable or unwilling to provide protection. protection is ‘generally provided’ when these actors ‘take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.’ (article 7) however, as international organisations do not have the attributes of a state, in practice their ability to enforce the ‘rule of law’ is often very problematic. hence the position taken in the directive is more restrictive than the unhcr position, and has therefore been criticized. as already pointed out, after the revision in 2006 the definition of refugee in the swedish aliens act explicitly covers persecution on account of one’s gender. in the government bill it was also established that gender may constitute ‘membership of a particular social group’. furthermore, it was pointed out that persecution in the private sphere may be a basis for refugee status. according to the government, in such cases it is important to consider the social structure in the home land and the home state’s willingness and ability to offer protection. a person who risks being exposed to persecution by individuals on grounds of gender, may in some cases be denied protection in their home country because of the prevailing political, social, religious or cultural structures. if the authorities do not offer any protection and in reality accept the abuse, the woman has no possibility to obtain state protection and in such cases she may be regarded as a refugee. similarly, in some cultures the man’s right to exercise power over the woman is an uncontested and fundamental part of the social structure, meaning that it is impossible for women to get state protection from violence, restrictions on freedom, or honour related reprisals from the men in the family circle. in the investigation that the government bill is based on there is also a discussion about ‘wife-battering’, where it is declared that there may be many reasons for a woman to be exposed to serious battering; for instance because she has been unfaithful, or accused of being unfaithful – the primary cause or driving force normally being seen to be jealousy. according to the investigation, it would be far-fetched to say that the action of the man in these cases is due to her ‘membership of a particular social group’. at the same time it was observed in a note that in the example given only women are referred to, as ‘in accusations about unfaithfulness as a rule it is women who risk being exposed to persecution’ [my translation]. hence, abuse that women are exposed to in the private sphere is construed as something that is primarily linked to jealousy. furthermore, it is clear from the preparatory work that in these cases it is also required that the home state’s inability to supply protection is not due simply to lack of resources or inefficiency. this statement in the preparatory work has later been referred to in case law concerning a woman from albania who had been exposed to violence by her former husband. she had turned to the police but got no help and sought asylum because she was in danger of being killed by her own and her former husband’s family. in this case, persecution sufficient to ground refugee status was considered to be in place, as ‘the authorities’ unwillingness to give her protection was due to social and cultural structures and the fact that she was a woman’ [my translation]. this is, however, not something that is required in non-gender-related cases when persecution is exercised by private actors. unlike the position in the unhcr guidelines, it is thus not enough in swedish law for a woman to be exposed to persecution in the private sphere ‘on account of gender’. there is also a requirement that the state’s failure to supply protection is ‘on account of gender’. accordingly, sweden embraces the more restrictive line of reasoning described earlier, among those states that recognize victims of domestic abuse as refugees on social group grounds. implementing a gender (and gendered) perspective (marked by racism?) as already described, as a result of the 2006 revision, the swedish aliens act explicitly covers persecution on account of one’s gender. it was also established in the preparatory work that gender may constitute ‘membership of a particular social group’ and that persecution in the private sphere may be a basis for refugee status. in the investigation that the government bill is based on, however, abuse that women are exposed to in the private sphere is construed as something that is primarily concerned with infidelity and jealousy (cf ‘crime passionnel’). according to the investigation, it would be far-fetched to say that the man’s actions in cases of accusations of infidelity are due to the woman’s ‘membership of a particular social group’. it is possibly far-fetched to say that the jealousy in these cases is due to her ‘membership of a particular social group’, but i am not convinced that the action of the man in such cases, i.e. the expressions that the jealousy takes or is ‘allowed’ to take (actions available in the situated emotional repertoire), is not due to her ‘membership of a particular (subordinate) social group’. for, if one assumes (which the investigation does) that it is mainly women who are exposed to such persecution, why then is it men who do the hitting? do women not get jealous? if not, is that related to gender? and, if they do get jealous, why do they not hit ‘because of’ it? what is more, if we acknowledge feelings—or the expressions they take or are allowed to take (violence) – to be gendered, how can we even differentiate between gender (ground) and violence (persecution)? there is no analysis of this in the investigation. yet, the structural abuse of which this persecution is an expression is construed as emotional, as individual actions taken for personal reasons, just because it is manifested in a family context. the point of departure is obvious: the power structures that are acknowledged elsewhere in society are not applicable to relations within the family in this branch of law. accordingly, a woman who risks abuse from her husband or partner may be excluded from refugee status as the persecution that she risks is not defined as being based on ‘membership of a particular social group’. paradoxically, upholding the law’s separation between the subject and the persecution in this case means ‘personalizing’ the violence. an analysis of the preparatory work thus reveals that the gender perspective implemented in the legislation is also a ‘gender biased’ perspective. hence, the perspective contained in the act not only preserves the ‘structure and integrity’ of the convention (the ground/persecution divide), but also the power structures in society. accordingly, construing ‘violence in the private sphere’ as emotional, as individual actions for personal reasons, also means construing it as a ‘social problem’, placing not only the responsibility for the protection but also the abuse, on ‘the others’. the consequence of this construction in law is that many of these women will be without protection, since in their home country they are often assigned to their violent men for their support and ‘protection’. according to the unhcr, many of these women may also be threatened by their own family if they attempt to leave their husband or partner, as it may be perceived as ‘dishonouring’ the family. in this case, however, when the violence is defined as ‘honour related’ or when it appears in a ‘patriarchal society’, it is more likely that the violence will be considered gender-related and will provide favoured access to asylum. this is also the case when female genital mutilation is involved. when the persecution is familiar to our own ‘gendered practices’, or when the ‘gendered practices’ are otherwise considered too ‘general’, it is not so likely. instead, as pointed out by freedman, the persecutions that take place in those ‘other’ countries are attributed to immutable social and cultural characteristics, while the dynamics of gender inequality underlying all types of gender-related violence, whether ‘here’ or ‘there’, is not analysed. rather, ‘personalizing’ the violence in this case means ‘particularizing’ it, but also ‘culturalizing’ it (and ‘racifying’ it as immutable), not identifying it as a ‘universal’ pattern of domination and control. the contrast between ‘us’ and ‘them’ is therefore reinforced by the fact that the other culture is understood as bearing the imprint of patriarchal oppression while our own is understood as equal, i.e. perceptions of swedish gender equality are used to draw a line between ourselves and the immigrant population where the difference between ‘us’ and ‘them’ is created with reference to equality versus oppression of women. as shown, this ‘culturalization’ in the 2006 revision of the aliens act, through its construction of the abuse as emotional, also means ascribing ‘the others’ gendered (immutable and race-related) attributes (feelings), i.e. construing them as inferior, irrational and uncivilized. hence, gender and race ‘intersect’ in the construction of ‘the others’. as has been shown, women who risk abuse from their husbands or partners may be excluded from refugee status as the persecution that they risk is not defined as being based on ‘membership of a particular social group’ (not because she is a woman). should the abuse nevertheless be defined as being ‘on account of gender’, it is also required that the state’s inability to supply protection is ‘on account of gender’. it is, in other words, required in swedish law that the persecution is publicly sanctioned, a kind of ‘institutionalized violence’. ironically this demand means that these women are exposed by the swedish migration authorities to such ‘institutionalized violence’ ‘on account of gender’ that would have been a basis for refugee status if it had been the authorities in their homeland that had exposed them to it. it also constitutes an exception to the ‘rule of law’ principle, defined as ‘uniformity’ and ‘predictability’, as it implies ‘inequality before the law’ for women seeking refugee status. in other words, women from countries that lack resources or countries with an inefficient state administration are discriminated against by this requirement in comparison to male victims of persecution. for according to the preparatory work it is mainly women – though not because they are women – that risk this kind of persecution. final remarks the preparatory work for the changes made in the swedish aliens act in 2006 concerning the definition of refugee was driven by a wish to implement a gender perspective. yet, as i have argued, a closer reading of the preparatory work reveals ‘gender biases’, with many asylum-seeking women being discriminated against in comparison to male victims of persecution. the reason for this is that the ‘special’ character of migration law rests upon demands other than those usually required by the ‘rule of law’. as described, in this area of law, the ‘rule of law’ is transformed into ‘speed’ and ‘flexibility’, while ‘uniformity’ and ‘predictability’ – at least when it comes to women from countries that lack resources or countries with an inefficient state administration – is retained as rhetoric. furthermore, it appears that the gender perspective implemented in the act is also marked by ‘othering mechanisms’ and underlying racism, and it seems it is this racist notion of ‘the others’ that is the reason for the limitations in the act; the risk of having the entire world’s oppressed (‘non-white’ and poor) women (and children too for that matter) on ‘our threshold’. as a result, in this branch of law, domestic violence as a ‘universal’ pattern of domination and control is not acknowledged. instead the violence is construed as ‘private’ or ‘cultural’, employed to exclude protection. when the persecution is familiar to our own ‘gendered practices’ or when they are otherwise considered too ‘general’, there is a denial of the link between the persecution and the ground for seeking refugee status. however, if the ‘othering mechanisms’ are strong enough, the violence may qualify as being ‘on account of gender’. hence, sometimes the ‘cultural’ harm is translated into the ‘public’ sphere of protection of the refugee convention. this is e.g. the case when women (or children) are exposed to ‘honour related’ violence or violence appearing in a ‘patriarchal society’ or when the application is based on the excision of female genital mutilation. so, in order to be considered ‘structural’, the violence must not be ‘familiar’ or ‘general’, but ‘other’. accordingly, in these cases, the effect of ‘culturalization’ is also a trend to ‘exclusionary inclusion’. with the exception of this ‘exclusionary inclusion’, ‘ongoing exclusion’ is the key word for women in this branch of law. hence, in migration law ideology the law’s demand for (formal) ‘equality before the law’, ‘uniformity’ and ‘predictability’ has meant the implementation of new perspectives, while staying with the old assumptions and values; taking male experiences as a starting point, privileging the public, excluding the private, i.e. an ‘add and stir’ approach. should the abuse be defined as structural (‘on account of gender’), then it is, however, also required that the state’s inability to supply protection is ‘on account of gender’. with or without the ‘rule of law’, it seems gender equality is not a favoured issue. accordingly, under the threat of masses of asylum-seekers crossing our borders, there are very limited possibilities for taking gender into account, as globalization and the feminization of asylum-seekers increases this threat. it is particularly the case if ‘we’ revise our self-image as a good and equality producing state and acknowledge that it is not only ‘the other’ women (and children) that are being oppressed. holding on to international refugee law may from this perspective seem impossible, applying it in a ‘generous spirit’ even less possible. taking the human 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[government’s proposal for a new aliens act etc.]. prop. 1996/97:25, svensk migrationspolitik i globalt perspektiv [government’s proposal, swedish migration policy in global perspective]. prop. 2004/05:170, ny instansoch processordning i utlänningsoch medborgarskapsärenden [government’s pproposal, new order of instance and process in aliens and citizenship matters]. prop. 2005/06:6, flyktingskap och förföljelse på grund av kön eller sexuell läggning [government’s proposal, refugee status and persecution on account of one’s gender or sexual orientation]. government committees and other official documents bet. 2005/06:sfu4, förföljelse på grund av kön eller sexuell läggning [committee on social insurance, persecution on account of one’s gender or sexual orientation]. lagrådets yttrande över lagrådsremiss den 17 mars 2005, utdrag ur protokoll vid sammanträde 2005-05-09 [council on legislation, opinion on proposal referred to the council on legislation for consideration the 17th of march 2005, transcript from protocol at session 090505]. sou 2004:32, flyktingskap och könsrelaterad förföljelse [government commission, refugee status and persecution on account of one’s gender]. united nations official documents convention relating to the status of refugees, geneva, 28 july 1951, 189 unts 137. instraw, gender, remittances and development 2007, feminization of migration. protocol relating to the status of refugees, new york, 31 january 1967, 606 unts 267. unfpa, state of world population 2006. a passage to hope, women and international migration. unhcr, handbook on procedures and criteria for determining refugee status under the 1951 convention and the 1967 protocol relating to the status of refugees, geneva, 1979, hcr/ip/4/eng/rev.1, re-edited 1992. unhcr, guidelines on international protection: gender-related persecution within the context of article 1a(2) of the 1951 convention and/or its 1967 protocol relating to the status of refugees, 7 may 2002, hcr/gip/02/02. unhcr, guidelines on international protection: ‘membership of a particular social group’ within the context of article 1a(2) of the 1951 convention and/or its 1967 protocol relating to the status of refugees, 7 may 2002, hcr/gip/02/01. unhcr, handbook for the protection of women and girls, geneva, 2008. unhcr, global trends 2010, 20 june 2011. european union official documents council directive 2004/83/ec of 29 april 2004 on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, oj l 304, 30.9.2004, pp.12–23. * senior lecturer in law, umeå university, sweden, � hyperlink "mailto:eva.nilsson@jus.umu.se" �eva.nilsson@jus.umu.se�. � the paper is dedicated to gudrun nordborg, information manager at the crime victim compensation and support authority and honorary doctor in laws at umeå university. in addition to the referees of this paper, i wish to thank arvid brogren, associate lawyer at the asylum law office in stockholm, susanne riekkola, case officer at the migration board, permit unit in sundsvall, and participants in the research theme umeå gender studies in law and society (ugls), at the department of law, umeå university, for comments on drafts of this paper. � convention relating to the status of refugees, geneva, 28 july 1951, 189 unts 137. � unhcr, guidelines on international protection: gender-related persecution within the context of article 1a(2) of the 1951 convention and/or its 1967 protocol relating to the status of refugees, 7 may 2002, hcr/gip/02/02, para. 5. see also mascini, p., van bochove, m., gender stereotyping in the dutch asylum procedure: ‘independent’ men versus ‘dependent’ women, 43 international migration review 2009, no. 1, pp. 112–133, on p. 113, with further references. � � hyperlink "http://www.migrationsverket.se/" ��http://www.migrationsverket.se/�, accessed 7 november 2011. � bhabha, j., demography and rights: women, children and access to asylum, 16 international journal of refugee law 2004, no. 2, pp. 227–243, on pp. 232 f. � see e.g. mascini & van bochove, 2009, p. 117; kneebone, s., women within the refugee construct: ‘exclusionary inclusion’ in policy and practice—the australian experience, 17 international journal of refugee law 2005, no. 1, pp. 7–42, on p. 10; bhabha, 2004, pp. 232 f., with further references. � the term ‘feminization of migration’ is misleading insofar as it suggests an absolute increase in the proportion of women migrants, when in fact by 1960 women already made up nearly 47% of all international migrants, a percentage that increased by only two points during the following four decades, to about 49% at present. the term, however, refers not only to the fact that more women are migrating, but that gendered migration patterns are changing and that more women are migrating independently in search of jobs, rather than as ‘family dependents’ traveling with their husbands or joining them abroad. see instraw, gender, remittances and development 2007, feminization of migration, p. 2, with further references, also available at � hyperlink "http://www.scribd.com/doc/50124576/un-instraw-2007-feminization-of-migration" �http://www.scribd.com/doc/50124576/un-instraw-2007-feminization-of-migration�, accessed 7 november 2011. � unfpa, state of world population 2006. a passage to hope, women and international migration,�pp. 22 ff., also available at � hyperlink "http://www.unfpa.org/swp/2006/pdf/en_sowp06.pdf" ��http://www.unfpa.org/swp/2006/pdf/en_sowp06.pdf�, accessed 7 november 2011. also, according to recent unhcr statistics, available data suggest that women and girls constitute 47 per cent of refugees and asylum-seekers. see unhcr, global trends 2010, 20 june 2011, p. 2, also available at � hyperlink "http://www.unhcr.org/4dfa11499.html" �http://www.unhcr.org/4dfa11499.html�, accessed 7 november 2011. � bhabha, 2004, pp. 231 and 236 f. see also spijkerboer, t., gender and refugee status, ashgate 2002, p. 103 and mascini & bochove, 2009, p. 113, with further references. � noll, g., popovic, a., flyktingstatus – en marginaliserad resurs i svensk asylrätt? [refugee status—a marginalized recourse in swedish asylum law?], juridisk tidskrift 2005-06, pp. 834–865, on p. 852. according to a study of data from the dutch ins, when controlling for such factors, men even had a slightly greater success rate than women, although this effect was not significant. however, this success rate only concerned the category of ‘successful’ asylum seekers. in the category of ‘unsuccessful’ asylum seekers, men still had a considerably smaller chance of obtaining a residence permit than women. their findings suggest that men fit the image of a calculating, ‘bogus’ refugee in more respects while female asylum seekers more closely match the image of a ‘victim of patriarchal domination’. accordingly, ‘gender biases’ can also be detrimental to male applicants. see mascini & van bochove, 2009, particularly on pp. 119 and 127 f. � spijkerboer, t., stereotyping and acceleration. gender, procedural acceleration and marginalised judicial review in the dutch asylum system, in noll, g. (ed.), proof, evidentiary assessment and credibility in asylum procedures, martinus nijhoff publishers, leiden/boston 2005, pp. 67–102, on p. 19. � see holzer, t., schneider, g., widmer, t., discriminating decentralization. federalism and the handling of asylum applications in switzerland 1988-1996, 44 journal of conflict resolution 2000, no. 2, pp. 250–276, on p. 269. � see juhlén, k., barns egna asylskäl [children’s own reasons for asylum], rädda barnen, stockholm 2003, p. 19 and nilsson, e., barn i rättens gränsland. om barnperspektiv vid prövning om uppehållstillstånd [children in the borderland of law. on child perspectives in the determination of granting residence permits], iustus förlag, uppsala 2007, p. 235. concerning applications before the 2006 revision, see bexelius, m., kvinnor på flykt – en analys av svensk asylpolitik ur ett genusperspektiv 1997-2000 [women on the run—an analysis of the swedish asylum policy from a gender perspective 1997-2000], rådgivningsbyrån för asylsökande och flyktingar, stockholm 2001. � zamacona aguirre, m., riktlinjer för utredning och bedömning av kvinnors skyddsbehov – ett fungerande verktyg? [guidelines for the investigation and assessment of women’s need for protection—a working tool?], svenska röda korset 2008. � published 30 november 2008. available at � hyperlink "http://www.redcross.se/pressrum/rapporter-och-dokument/?itemid=3168" �http://www.redcross.se/pressrum/rapporter-och-dokument/?itemid=3168�, accessed 7 november 2011. � bexelius, m., asylrätt, kön och politik. en handbok för jämställdhet och kvinnors rättigheter [asylum law, gender and politics. a handbook for equality and women’s rights], rådgivningsbyrån för asylsökande och flyktingar, stockholm 2008. �bexelius, m., sundquist, a., kvinnors rättigheter är mänskliga rättigheter, dagens arena 19 march 2008.. see also � hyperlink "http://sweref.org/kvinnor/ny_handbok_publicerad.aspx" �http://sweref.org/kvinnor/ny_handbok_publicerad.aspx�, accessed 7 november 2011. � as described by yttergren, å., in this issue, a commonly observed feature of sweden is its high level of gender equality, which is correlated to its institutionalized welfare. � feijen, l., frennmark, e., kvalitet i svensk asylprövning. en studie av migrationsverkets utredning av och beslut om internationellt skydd [quality in the asylum determination process. a study about the migration board’s investigations and decisions on international protection, unhcr 2011, pp. 113 f. and 142 f. � see prop. 2004/05:170, ny instansoch processordning i utlänningsoch medborgarskapsärenden [government’s proposal, new order of instance and process in aliens and citizenship matters], pp. 108 and 394. � dauvergne, c., making people illegal. what globalization means for migration and law, cambridge university press, cambridge 2008, pp. 7 f. � prop. 2004/05:170, p. 109. � prop. 2004/05:170, p. 132. � for similar observations in international doctrine, see dauvergne, 2008, pp. 47 f. in the construction of asylum-seekers as a threat, there is also security concerns related to the events of september 11, 2001. see dauvergne, c., security and migration law in the less brave new world, 16 social & legal studies 2007, no. 4, pp. 533–549, particularly on pp. 534 and 540 f., with further references. see also goodwin-gill, g. s., mcadam, j., the refugee in international law, oxford university press, new york 2007, p. 416. � lagrådets yttrande över lagrådsremiss den 17 mars 2005, utdrag ur protokoll vid sammanträde 2005-05-09 [council on legislation, opinion on proposal referred to the council on legislation for consideration the 17th of march 2005, transcript from protocol at session 090505], pp. 9 f. � prop. 2004/05:170, pp. 108 and 394. � see also discussion by dauvergne, 2008, pp. 5 and 49 f., particularly on pp. 50 f. and dauvergne, c., making people illegal, in fitzpatrick, p., tuitt, p. (eds.), critical beings: law, nation and the global subject, ashgate, aldershot 2004, pp. 83–99, particularly on p. 86. � de los reyes, p., mulinari, d., intersektionalitet [intersectionality], liber, malmö 2005, in re-print 2010, pp. 19 f. � dauvergne, 2008, p. 49. � dauvergne, 2008, p. 54. � dauvergne, 2008, p. 171. � dauvergne, 2008, pp. 60 f. and 166, particularly on pp. 62 and 64. � protocol relating to the status of refugees, new york, 31 january 1967, 606 unts 267. � art. 1a(2) of the convention, as amended by the 1967 protocol, defines a ‘refugee’ as a person who ‘[…] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. […]’ chapter 4, section 1, first paragraph of the aliens act states that ‘in this act ‘refugee’ means an alien who is outside the country of the alien’s nationality, because he or she feels a well-founded fear of persecution on grounds of race, nationality, religious or political belief, or on grounds of gender, sexual orientation or other membership of a particular social group […].’ � council directive 2004/83/ec of 29 april 2004 on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, oj l 304, 30.9.2004 pp. 12–23. � this directive, applicable to nearly all eu member states, calls for countries to comply by passing and enforcing domestic legislation by october 2006. as regards the implementation of the directive into swedish law, in addition to the aforementioned changes, further changes have been made, which came into force on 1 january 2010. see sfs 2009:1542 om ändring i utlänningslagen (2005:716) [swedish code of statutes, act amending the aliens act (2005:716)]. � � hyperlink "http://www.unhcr.se/en/resources/legal-documents/guidelines-and-positions.html" �http://www.unhcr.se/en/resources/legal-documents/guidelines-and-positions.html�, accessed 7 november 2011. see also statements in the preamble to the council directive 2004/83/ec of 29 april 2004 on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, oj l 304, 30.9.2004 pp. 12–23. in sweden it is established in the preparatory work (prop. 2004/05:170, p. 94) and in case law (mig 2006:1) that the unhcr handbook (handbook on procedures and criteria for determining refugee status under the 1951 convention and the 1967 protocol relating to the status of refugees, geneva, 1979, hcr/ip/4/eng/rev.1, re-edited in 1992), together with the conclusions that the unhcr supports, provide guidance for application. � unhcr, guidelines on international protection: ‘membership of a particular social group’ within the context of article 1a(2) of the 1951 convention and/or its 1967 protocol relating to the status of refugees, 7 may 2002, hcr/gip/02/01, para 2. about the relation between the category ‘membership of a particular social group’ and the other grounds in the convention, see e. g. macklin, a., refugee women and the imperative of categories, 17 human rights quarterly 1995, no. 2, pp. 213–277, particularly on pp. 256–263. � unhcr, guidelines on ‘membership of a particular social group’, para 3. � see kelley, n., the convention refugee definition and gender-based persecution: a decade’s progress, 13 international journal of refugee law 2002, no. 4, pp. 559–568, on p. 565, with further references. � unhcr, guidelines on ‘membership of a particular social group’, para. 23 and unhcr, guidelines on gender-related persecution, para. 21. according to edwards the responsiveness of the state in providing protection should increase in direct proportion to the vulnerability of the particular individual. if the state would take concrete action in the case of a child or a women beaten in the street by a stranger, but does not do so in relation to a child or woman subjected to violence at home, it could be determined that the state has withheld protection from those citizens. according to her the public/private dichotomy is never more pronounced than in these types of cases and is often reflected in the level of protection available to such individuals. see edwards, a., age and gender dimensions in international refugee law, in feller, e., türk, v., nicholson, f. (eds.), refugee protection in international law, unhcr’s global consultations on international protection, cambridge university press, cambridge 2003, pp. 46–80, on p. 65. � see unhcr, guidelines on gender-related persecution, para. 20. � prop. 1979/80:96 med förslag till ny utlänningslag, m.m. [government’s proposal for a new aliens act etc.], p. 42. � prop. 1996/97:25, svensk migrationspolitik i globalt perspektiv. [government’s proposal, swedish migration policy in global perspective], pp. 96 f. and reference to the statement in prop. 2004/05:170, p. 172. � see also dauvergne, 2008, pp. 149 f. � see crawley, h., lester, t., comparative analysis of gender-related persecution in national asylum legislation and practice in europe, united nations high commissioner for refugees evaluation and policy analysis unit, department of international protection, and regional bureau for europe, epau/2004/05 may 2004, pp. 59 f., with further references. � in the act, the term ‘sex’ is used, referring to biological as well as social sex. see prop. 2005/06:6, flyktingskap och förföljelse på grund av kön eller sexuell läggning [government’s proposal, refugee status and persecution on account of one’s gender or sexual orientation], p. 34. in the english translation of the swedish act the term ‘sex’ is translated with ‘gender’. see chapter 4, section 1 of the aliens act. � prop. 2005/06:6, pp. 25 f. � sou 2004:32, flyktingskap och könsrelaterad förföljelse [government commission, refugee status and persecution on account of one’s gender], p. 126. � prop. 2005/06:6, p. 28. the government’s opinion was shared by the committee on social insurance. see bet. 2005/06:sfu4, förföljelse på grund av kön eller sexuell läggning [committee on social insurance, persecution on account of one’s gender or sexual orientation], p. 14. � mig 2008:39. � it may be noted that lars ohly et al. in a proposal tabled in parliament (a ‘private member’s bill’), motion sf1 yrkande 7, asked for a notification that persecution in the private sphere as grounds for refugee status should be handled in accordance with international refugee law and that, in cases involving persecution by e.g. a husband which are related to one of the convention grounds, it should not matter whether or not the failure of the state to protect the claimant is convention-related, as referred to in bet. 2005/06:sfu4. � nilsson, 2007, p. 157 and bexelius, 2001, particularly on p. 186. see also discussion by spijkerboer, 2005, pp. 67–102, particularly on pp. 69, 79 f. and 88. for an analysis of the private/public distinction within international refugee law, see crawley, h., refugees and gender—law and process, jordans, bristol 2001, pp. 18 f. see also discussion by kneebone, 2005, particularly on p. 31 f. and 37 f., and heyman, m. g., domestic violence and asylum: toward a working model of affirmative state obligations, 17 international journal of refugee law 2005, no. 4, pp. 729–748. � for further analysis see forthcoming article, nilsson, e., the ‘refugee’ and the ‘nexus’ requirement. the relation between the subject and the persecution in the united nations refugee convention, women’s studies international forum (to be published in 2013). see also discussion about cause/reason and ‘men doing jealousy’ by burman, m., immigrant women facing male partner violence—gender, race and power in swedish alien and criminal law, in same issue. � in sweden, an alien who does not meet the criteria for refugee status can also be granted protection as a ‘person eligible for subsidiary protection’ [alternativt skyddsbehövande], in accordance with council directive 2004/83/ec, or according to a wider national definition, as a ‘person otherwise in need of protection’ [övrig skyddsbehövande]. furthermore, a residence permit can be granted on the grounds of ‘exceptionally distressing circumstances’ [synnerligen ömmande omständigheter]. according to mig 2008:13, however, social problems, as a rule, should be solved in consultation with the authorities in the home country and not, as a principle, be determined as ‘exceptionally distressing circumstances’. � see also jastram, k., newland, k., family unity and refugee protection, in feller, e, türk, v., nicholson, f. (eds.), refugee protection in international law, unhcr’s global consultations on international protection, cambridge university press, cambridge 2003, pp. 555–603, on pp. 559 f. � unhcr, handbook for the protection of women and girls, geneva 2008, p. 155. � see prop. 2005/06:6, p. 28; mig 2008:39; mig 2011:8. for similar conclusions in international doctrine, see e.g. mascini & van bochove, 2009, p. 130; kneebone, 2005, pp. 37 and 41; spijkerboer, 2002, p. 105. furthermore, it has been demonstrated that a refugee woman’s claim is most likely to succeed if it is a ‘good woman’ claim. see spijkerboer, 2002, p. 103. � see prop. 2005/06:6, p. 28 and guiding decision by the swedish migration board, 2008-10-24, lifos no. 19649. fgm enters clearly into the category of a ‘good woman’ claim described in note 61, above, as it involves ‘vulnerable’ and ‘innocent’ victims. this is particularly the case when the victims are young girls. see also discussion by freedman, j., protecting women asylum seekers and refugees: from international norms to national protection?, 48 international migration 2010, no. 1, pp. 175-198, on p. 190. � see nilsson, 2007, p. 161. � freedman, 2010, p. 191. see also discussion by mascini & van bochove, 2009, p. 130. according to the authors the smaller success rate of men has not provoked action so far because it ‘offers policy-makers, interest groups, and social scientists fewer opportunities to exemplify the moral superiority of the west in regards to the south, than when it concerns the patriarchal domination of women’. � i use the word ‘universal’ to capture ‘discursive structures’ and ‘hegemony’, i.e. i lay no claim to ‘universalism’. instead i believe time and place are central categories in analysing and ‘denaturalizing’ socially and historically created inequalities, such as men's violence against women. see de los reyes, p., gröndahl, s., introduktion: framtidens feminismer: vägar bortom törnrosalandet [introduction: future feminisms: roads beyond the land of the sleeping beauty], in de los reyes, p., gröndahl, s., laskar, p., martinsson, l., rosenberg, t. (eds.), framtidens feminismer. intersektionella interventioner i den feministiska debatten [future feminisms. intersectional interventions in the feminist debate], tankekraft förlag, hägersten 2007, pp. 11–22, particularly on pp. 14, and de los reyes, p., rosengård är min shatila!: hegemoniska berättelser och gränsöverskridande erfarenheter [rosengård is my shatila!: hegemonic narratives and transnational experiences], in de los reyes, p., gröndahl, s., laskar, p., martinsson, l., rosenberg, t. (eds.), framtidens feminismer. intersektionella interventioner i den feministiska debatten [future feminisms. intersectional interventions in the feminist debate], tankekraft förlag, hägersten 2007, pp. 101–115, on pp. 101 f. see also mouffe, c., on the political, routledge, new york 2005, particularly on pp. 83 f. and 120 f. for a discussion of challenges that an intersectional analysis grounded in a structural framework provides for understanding the role of culture in domestic violence, see sokoloff, n. j., dupont, i., domestic violence at the intersections of race, class, and gender: challenges and contributions to understanding violence against marginalised women in diverse communities, 11 violence against women 2005, no. 1, pp. 38–64, particularly on p. 58. � de los reyes, p., molina, i., kalla mörkret natt! kön, klass, och ras/etnicitet i det postkoloniala sverige [call the dark night! gender, class and race/etnicity in the postcolonial sweden], in de los reyes, p., molina, i., mulinari, d. (eds.), maktens (o)lika förklädnader. kön, klass och etnicitet i det postkoloniala sverige: en festskrift till wuokko knocke 2002 [power’s (un)equal disguises. gender, class and ethnicity in the postcolonial sweden: a festschrift to wuokko knocke 2002], bokförlaget atlas, stockholm 2006, pp. 303 f. � for an analysis of how gender ideologies and discourses imbue colonial structures, metaphors and symbolism, see de los reyes & mulinari 2005, in re-print 2010, p. 68. � this term, introduced by kimberlé crenshaw and used in several un documents related to women’s human rights, focuses on the interaction between different power structures. see crenshaw, k. w., demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics, university of chicago legal forum 1989, pp. 139–167, on p. 140. see also crenshaw, k. w., mapping the margins: intersectionality, identity politics, and violence against women of color, 43 stanford law review 1991, no. 6, pp. 1241–1299. for more recent international literature on ‘intersectionality’, see e.g. lutz, h., herrera vivar, m. t., supik, l. (eds.), framing intersectionality. debates on a multi-faceted concept in gender studies, ashgate, surrey 2011; grabham, e., cooper, d., krishnadas, j., herman, d. (eds.), intersectionality and beyond: law, power and the politics of location, routledge-cavendish, new york 2009; yuval-davis, n., intersectionality and feminist politics, 13 european journal of women’s studies 2006, no. 3, pp. 193–209; mccall, l., the complexity of intersectionality, 30 signs: journal of women in culture and society 2005, no. 3, pp. 1771–1800. � see also discussion by burman, m., in this issue. � see also analysis of the australian law and policy by kneebone, 2005, pp. 8, 22 f. and 40. � the expression ‘add women and stir’ is used by charlesworth and chinkin concerning the development of international criminal law in the 1990s. see charlesworth, h., chinkin, c., the boundaries of international law: a feminist analysis, manchester university press, manchester 2000, p. 335. � see also description by yttergren, å., in this issue, about the two principles that are central to development assistance in sweden: a poor people’s perspective and a human rights perspective. � de los reyes & mulinari, 2005, in re-print 2010, p. 76. migrants also contribute to our welfare, too often, however, in terms of ‘brain-draining’ or ‘social dumping’. migrant women e.g. are often recruited into ‘women-specific’ jobs that are unprotected and low paid. see discussion by jean d´cuhna at � hyperlink "http://www.saynotoviolence.org/around-world/news/five-questions-jean-d-cunha" ��http://www.saynotoviolence.org/around-world/news/five-questions-jean-d-cunha�, accessed 7 november 2011, and de los reyes & mulinari, 2005, in re-print 2010, on p. 85 and 102 f. see also calleman, c., domestic services in a ‘land of equality’—the case of sweden, 23 canadian journal of women and the law 2011, no. 1, pp. 121–139. 1 __________________________________________________________________________________ 10 __________________________________________________________________________________ 1 hale, hunter and rackley a conversation with lady hale __________________________________________________________________________________ feminists@law vol 11, no 2 (2023) a conversation with lady hale about feminism, law and citizenship brenda hale, rosemary hunter and erika rackley[footnoteref:1]* [1: * lady brenda hale retired as president of the uk supreme court in 2020. rosemary hunter is professor of law and socio-legal studies at the university of kent, uk, email r.c.hunter@kent.ac.uk. erika rackley is professor of law at the university of kent, email e.rackley@kent.ac.uk. we are grateful to helen white at the typing works for so quickly and expertly transcribing the recording of this interview, and to alexandrine guyard-nedelec for permission to publish the transcript and video of the interview in feminists@law. ] the following is the text of a conversation between erika rackley and rosemary hunter and lady hale, which formed one of the plenary sessions at the conference on ‘feminism, law and citizenship’ held in paris in july 2022. the conference was organised by rosemary auchmuty and alexandrine guyard-nedelec. the questions were prepared by erika rackley and rosemary hunter and provided to lady hale in advance, giving her the opportunity to prepare her answers. the conversation was recorded and transcribed. this is an edited version of that transcript. the video recording of the interview is published in the same issue of feminists@law. erika rackley: thank you alexandrine and thank you rosemary for the invitation. we are absolutely delighted to be here in such a beautiful location on such a glorious hot day. and i’m so glad that we’re going first before we begin to melt into puddles by the end of the day! so, it falls to me to introduce lady hale. brenda hale has collected many names and titles and monikers over the years. some professional: academic, lawyer, judge, president, lady, baroness; others relate to what she’s done: the first woman to …, feminist, trailblazer, ms diversity. still others are more personal: wife, grandmother, homemaker, imposter, girly swot, icon, mermaid, rock star, or more precisely beyoncé [laughter], swashbuckler and of course spider woman. but whatever we call her, and i’m going to stick with lady hale, she is without doubt one of the most outstanding and celebrated jurists and most powerful women leaders of our time. she has led the way on issues such as women’s ownership of the family home, mental health, mental capacity, religious freedom, equality, children’s rights, employment, housing, social welfare law, domestic abuse and sexual violence. the highlights of lady hale’s stellar career include a starred first at cambridge; 18 years as an academic at the university of manchester where she authored and co-authored a number of pioneering works on social work, family law, mental health law and women and law; being the first woman and youngest ever person appointed to the law commission, an independent statutory body that reviews and recommends reform of the law of england and wales, where she led ground-breaking legal reform on family and children’s law. ten years later, in 1994, she was appointed to the family division of the high court and just five years later became the second woman to be appointed to the court of appeal. in 2004 she became the only woman in its 600-year existence to be elevated to then the most senior court in the uk, the apellate committee of the house of lords. in 2009 she became the first and for many years the only woman to sit on the uk supreme court and she later became the first and so far – fingers crossed there will be some more – only woman to have served as its deputy president and president. by the time of her retirement in january 2020 she had cemented her position as one of the busiest and most accessible justices. during her time in the court she wrote more judgments, gave more extrajudicial speeches and published more scholarly articles and books than any of her contemporaries. [laughter and applause] we’ve done the maths! she’s now a cross-bench member of the house of lords and so she’s added parliamentarian to her cv, completing what google tells me might be called a glut (a hat trick plus two) of legal roles: academic, lawyer, law commissioner, judge, parliamentarian. i’m not sure if she’s the first to do it but i’d put good money on the fact that she probably is. her catalogue of firsts is even more remarkable because at no time was she a safe appointment in that she closely resembled her male predecessors. rather she was an avowed feminist who strongly advocated for women’s rights, social justice, equality and of course judicial diversity. for these reasons she’s attracted controversy as well as plaudits from commentators and even at times her judicial colleagues. long before her public profile reached its peak in 2019 following her delivery of miller ii, the so-called brexit case,[footnoteref:2] she regularly appeared on women in power lists, as well as in british vogue, on the bbcs masterchef tv programme, and much to the delight of my own children is the subject of a children’s book by afua hirsch.[footnoteref:3] in 2021 she published her biography aptly named spider woman,[footnoteref:4] a wonderful mixture of personal, public and professional stories that come together to perform a unique history of a life lived for over half a century in law. it tells of lady hale, the law and their relationship to each other and to us. it is of course available from all good bookshops and was out in paperback just last week. she continues to criss-cross the country, and now we assume the globe, appearing at literature festivals, on the guest lecture circuit and adding an impressive number of podcasts to her media output. also in 2021 she joined barack obama, john lennon and, of course, beyoncé in having a street named after her as the entrance to gray’s inn in london was renamed ‘lady hale gate’. she is even name-checked in the revamped stage version of the hit film legally blonde which is currently playing at the open-air theatre in regents park in london, which has elle woods announcing “first we take harvard, then we take brenda hale’s old seat on the supreme court”. [laughter] what shoes she would have to fill! so i’m delighted today to be here with rosemary hunter and that we have the opportunity to talk to lady hale about feminism, law and citizenship. [2: r (on the application of miller) v the prime minister; cherry and others v advocate-general for scotland [2019] uksc 41.] [3: afua hirsch, equal to everything: judge brenda and the supreme court (legal action group 2019).] [4: lady hale, spider woman – a life (vintage publishing 2021). ] rosemary hunter: thank you very much erika. it’s an absolute pleasure to be here and to speak with lady hale. and i should also add that we will ask questions, and hopefully get some interesting answers, for most of the session but there will be time at the end we hope for the audience also to ask questions and lady hale’s generously agreed to answer unscripted questions, although the extent to which she answers them is entirely up to her. so, to begin by connecting to the themes of this conference and with a very broad question perhaps: what do you see as the relationship between feminism, law and citizenship? and what do you see as the importance of that relationship? lady hale: well, thank you very much for inviting me to be here. it’s a huge pleasure to be here. i learnt a few things about myself that i didn’t know from erika’s introduction so that’s wonderful. thank you. now to the subject of the conference. i asked myself when looking at the title of the conference ‘well, what do we mean by citizenship?’ it’s a very broad term and i can think of three possible things that it might mean, and there are no doubt more. firstly, belonging to a nation state, and that’s actually the word used in some national constitutions – whether people ‘belong’. it means ‘are they citizens?’ secondly, participating in the governance of that nation state, whether in parliament or in the government or in the judiciary. and then, thirdly, it can mean relating to the other people in that nation state. i think it means all three of those things and i think the subject matter of the papers in this conference relate to all three of those things. so we’re going to have a lot to talk about are we not? but, of course, if you relate each of those concepts to feminism… belonging. well, it’s not so very long ago that a married woman lost her own citizenship and became a citizen of the nation of which her husband was a citizen. it’s within my professional lifetime that that has changed in uk law. the capacity to hand on your citizenship to your children, again that’s taken even longer to catch up. so there’s all sorts of law of that nature, let alone migration law where there are feminist issues to be addressed. participation. of course, the extent to which women participate in parliament, in government and in the judiciary is a vital issue and i have been banging on for years and years and years about the importance of diversity in the judiciary, starting with gender diversity because that’s the most important in the sense that it’s the numerically most important. we are half the human race, actually 51%, so we really ought to be better represented in the senior echelons of the judiciary in every country. in the uk we’re not doing badly, we have made huge progress this century so things are getting better, but there’s still a way to go and i’m sure there’s a way to go in many other countries in the world as well. and then this whole question of relationships and society and how are women placed in society and how are we still regarded as principally wives or live-in lovers and mothers and how much are we seen as equal participants? but i think that’s a big question for men as well because i look forward to the day when men can be described as husbands and fathers just as much as participants in the world of work outside the home because i believe, of course, that what goes on in the home is just as much work as what goes on outside the home. right, so that’s my answer to your first question i think. is that good enough? rosemary hunter: it will do. [laughs] so as a follow-up, you talked about the three senses of citizenship in relation to the nation state but of course the concept of global citizenship has also gained currency more recently. so, what does it mean to be a feminist global citizen? and, more importantly perhaps, how do you think you’ve done that? lady hale: well i quite agree with you that citizenship has got a worldwide element as well as a nation state element, but one of the wonderful things about feminism is that we can learn to make relationships across national borders. my principal contribution to that has been with the international association of women judges (iawj) because that has women judges as members from most of the countries in the world, it is quite remarkable, not all of which would count as democracies it has to be said, but one of the great things about getting together across those national boundaries is that you realise just how much judges have in common. we are doing a very similar job. we’re not necessarily doing it under the same laws or the same procedures, but we are doing a very similar job and the commitment of those women judges from all round the world to trying to do that job properly is palpable. one of the most touching, but also frightening, things that we in the uk did was that we sponsored afghan women judges to come to the iawj conferences. they did, of course, have qualified women judges in afghanistan because they have a continental european system where you do the judging exams and then you go into judging, which is not what happens in common law countries, but that’s what they had. they had qualified women judges and then of course these women became really, really under threat once the taliban took back over and the iawj has been doing wonderful things with the international bar association, which is another forum for women to get together globally, to rescue those women judges and find them a life somewhere outside afghanistan. but it’s really, really difficult. so, i think that’s an example of how we have got to stand together and do our best for one another. erika rackley: lady hale, my questions move on to focus a little bit more on you and your career. during your career you’ve often been a or sometimes the only representative of women in various institutions. and so i wanted to ask you how it’s felt to be in some of those institutional roles and how you’ve navigated them, whether you found any particular difficulties about doing it, if there’s any sources of pride (this is a long question!), whether there’s been any differences between working in those institutions as a woman? lady hale: it’s quite a difficult question to answer because i’ve been around so long that when i first started out in the law there were very few women. there were very few women studying law in cambridge when i went up there. there were rather more studying it in manchester when i went to teach in manchester, but i was only the second full-time permanent member of the law faculty staff in manchester, we’re talking 1966 here, so i’ve been the second rather more often than i’ve been the first. there’s a wonderful thing about being the second, you can be so grateful to the first, because she hasn’t pulled up the drawbridge, she has facilitated rather than frightened the horses etc, etc. so i think i can say that the academic world was undoubtedly the least difficult because more and more women were coming into law and legal studies and anyway academics are on the whole i think rather more free thinking and open to new ideas and open to developments and so on than other parts of the profession, so i think that was the easiest. the law commission, i was the first woman at the law commission. the law commission of england and wales is a statutory body which was set up to promote the reform of the law, so it’s a sort of public body but independent of government. it’s five senior lawyers who get together to work out what’s wrong with the law and how we might put it right and make recommendations to parliament as to how it might be put right with a decent chance of parliament actually doing it. most of the things that i did at the law commission got put through, so i was very, very fortunate. i certainly felt as the first woman there a serious case of imposter syndrome when i first turned up. we didn’t call it imposter syndrome in those days but i think that’s now a worldwide term isn’t it for wondering why you’re there? ‘what am i doing here?’ ‘can i do it?’ ‘surely i’m an imposter’, etc, etc, all of those things. i certainly felt that when i went to the law commission because i was younger than the others, i was the only woman and they were such big brains and such confident big brains, you know how some of these people are? and the way i handled that, and i have done i think throughout my life, was to say well, i may not be sure why i am here but somebody thinks i should be here, somebody has put me in this position and it’s my job to try and convince them that they were right, but if i can’t do that it just shows that they were wrong. it’s not my fault. [laughter] erika rackley: and quite right too. so, it’s quite interesting when you talk about the feelings of being an imposter because for so many people you’re a role model. and i wondered whether when you first became aware of that and how that felt to now be a role model? and also as a supplementary question, did you have any role models when you were coming into the law? lady hale: well i can answer the second question first. i think looking back, and i imagine that quite a few of the women at least in this room will share that view, my mother was a role model. my father died when i was 13 and she had two young teenage children to look after. she was a qualified teacher but had had to give up teaching in the 1930s when she got married because there was a marriage bar in teaching in the 1930s. but she picked herself up, dusted off her qualifications and got herself a teaching job, and she did it so that we could stay in the same village with the same friends and the same school. so looking back, that was a model of resilience. it also taught me the importance of education, qualifications, independence, and my younger sister and i, i think, never were dependent throughout our lives. so i think that’s my number 1 role model really. there were teachers at school who in retrospect, you didn’t think much of at the time, they were impossibly elderly, usually maiden ladies because that’s how teachers were in girls’ schools when i was young. but just again looking back at them, the forward looking-ness and the expectation that we would go to university if we could, when only 2½% of the young women in my generation went to university, to have that as an ambition in the tiny little school that i went to, is also good. when i went to manchester and became a barrister we had of course the foremost woman barrister in england practising in the north west of england, that’s rose heilbron who was the star barrister. she was so famous she appeared in murder trial after murder trial after murder trial, she was all over the newspapers, so she was very definitely a role model and i think that’s one of the reasons why there were more women at the bar in the north west of england was because she was a role model. and she became a high court judge as well but there were also high court judges who were role models, so yes, i did have enough role models. i don’t know when somebody said that i was a role model. [laughs] i think it was probably when legal cheek did call me the beyoncé of the legal profession. legal cheek is a website that does all sorts of cheeky things, it’s well worth looking at, it does all sorts of fun things. it had a feature about ‘lady hale’s brooches’ long before my brooches became famous, you know they’re famous. they also did a wonderful thing where they put that software where you work out what people are going to look like in 20 years time onto all the supreme court justices! that was quite funny. so i do recommend legal cheek as quite an amusing website. but they were the ones who named me the beyoncé of the legal profession and then i thought “oh my goodness me, there seem to be a lot of young people who actually read my judgments”. and i think that’s what it is – i think i’m getting a few nods from academics from the uk – the students in the uk do tend to read my judgments, and i think that the reason for that is that they’re comparatively short, comparatively clear and maybe just have a few ideas that resonate with the young, so those three things. and i suspect that that is because i was a university teacher for so long. so i think that’s how i became [a role model] and it’s a great burden, i can tell you that. [laughter] erika rackley: and rosemary’s going to be asking you more about your judgments shortly. i’m sorry it’s a burden. i think another label that’s kind of stuck with you over the years is ‘ms diversity’ in response to the way you’ve so consistently spoken out about the importance of a representative judiciary. so we could ask you why you think that’s important but i think a more interesting question is whether your views have changed over the years as to why it’s important and why you keep talking about judicial diversity? lady hale: no. my views have not changed. the reasons why it is so important were incredibly well articulated by beverley mclachlin who was for many years the chief justice of canada and a very great woman and judge, and she came and gave a talk to the association of women barristers and the association of women solicitors in about 2002. it happened to be held in a committee room in the houses of parliament. she gave four reasons why gender diversity in the judiciary was so important. one was democratic legitimacy, another was embodying the values of the law which include equality, another was equality of opportunity for all those brilliant young women going into the law, and the fourth and the most controversial was that from time to time we might actually make a difference to the decision-making. now i could expand on those but those are the four reasons and i still think that they’re very important. the only way in which my views have changed well they haven’t changed, they’ve developed is that those four reasons are just as valid for other dimensions of diversity than gender, so ethnicity is of course particularly important and a key issue in the united kingdom, but i also think socio-economic background is an important issue, professional background, all of those things feed into each of those four reasons. so that’s the way my thinking has developed. rosemary hunter: moving onto specific questions about your judgments, but i suppose beginning with the role in which you made many of those judgments, you were not only the first and thus far only woman president of the uk supreme court but the first and thus far only feminist, openly feminist president of the uk supreme court. and so we wanted to ask you a little bit about the qualities of feminist leadership and how you might identify them? lady hale: i think almost everybody in this room is better qualified to answer that question than i because yes, i’ve never made any secret of the fact that i’m a feminist and i’ve explained what i mean by that. one of the things that i find most frustrating is senior women who clearly do believe in the equality of women and the importance of women’s experience in shaping and applying the law starting every sentence with “i’m no feminist but…”. now that’s one of the things i really want to fight. i think i want to get these senior women who are still doing that to acknowledge their inner feminist, so that should be a slogan shouldn’t it for everybody? embrace your inner feminist. but, of course, there are plenty of men who are feminists too, it’s not a sex or gender related role. there are plenty of male feminists and in fact women would never have got anywhere if it hadn’t been for men who sympathised with them and who understood how, if the world treated them as unfairly as it treated women, they would think it was really, really unjust, so maybe the women have got a point. so i don’t know, people do say that on the whole women’s style is more collaborative than dictatorial, but then we can all think of a lot of women managers who’ve been incredibly dictatorial, and we can also think of cases in which women have reached the top of a particular occupation and the men whom they are leading have complained that they are too dictatorial, whereas they would not have complained of a man behaving in exactly the same way. we’ve got several examples in the police forces in england where that has happened, women chief constables have been attacked for being just like men basically. so i think that’s the biggest challenge for women when they reach leadership positions. there are other challenges along the way as well but that’s one of them: how you can combine the collaboration that’s expected of women with the actual putting your foot down on occasions when it’s necessary. but i didn’t have to do much of that because the court that i was leading was on the whole a very friendly court and a very collaborative court, witness the fact that we could get eleven of us to agree on a judgment in the space of three days.[footnoteref:5] [5: this is a reference to the miller (no 2) judgment (n 1), in which all 11 justices agreed.] rosemary hunter: so moving on then to think about feminism and judgments. over the years a number of your judgments have been described by us, among others, as feminist. what do you think makes a judgment feminist? lady hale: well i think that’s a very unfair question because you’re the people who’ve labelled the judgments feminist and you’re the people who have identified what in your view makes for a feminist judgment in all these lovely books rewriting famous cases from a feminist point of view, which are a wonderful read. so i think you say things like telling the story, sometimes telling bits of the story that are not entirely relevant to the legal reasoning in your decision but nevertheless make it clear that you have understood the story from the participants’ point of view, and i think i’ve definitely done that. another thing, of course, is interrogating assumptions, looking at things through a woman’s eye, asking the woman question, which i think i learnt from a few feminist scholars, but it’s a fairly obvious thing to do, isn’t it? so i think i’ve done that. i think that’s a bit of a feminist judgment thing. now what else? there were three things that you said about it, so one was telling the story, one was looking at it through a woman’s eyes, and what was the third thing? yeah, you can’t remember either! anyway, so it’s things like that. and i think also being clear and not obfuscating an issue. now this may not be something that is apparent to those of you who come from legal systems that are not the common law. in a common law legal system of course you don’t have ‘whereas, whereas, whereas, whereas’ style of judgments, you have a much more discursive style of judgments and that can contribute to some very long, very boring and really quite difficult to understand judgments. sometimes i wish we did do the ‘whereas, whereas, whereas’, it would be a lot clearer, but obviously i don’t really think that because it’s not the way the common law works. but i think that you can have really quite long and complicated judgments in common law cases where at the end of the day the reader says “well what did that all mean?” i think that’s right isn’t it? yes. well, so i think a feminist judgment, you would know exactly what it meant at the end of the judgment. rosemary hunter: thank you. so following on from that there are a number of judgments that again we have identified as your feminist ‘set pieces’ or, you know, very famous feminist judgments such as the case of radmacher v granatino[footnoteref:6] and the mcdonald case[footnoteref:7] in which you disagreed with other members of the court and did so in fairly trenchant terms and drew attention to the specific gender issues involved in the case. but what was it that made you write a feminist judgement in those cases and perhaps not in others? when did you decide that it was important to write, say, a dissenting feminist judgment or to lay down a feminist marker in a particular case and not in other cases? [6: radmacher v granatino [2010] uksc 42.] [7: r (on the application of mcdonald) v royal borough of kensington and chelsea [2011] uksc 33.] lady hale: well thank you rosemary. you’ve given examples of when i did. you haven’t given me examples of when i didn’t. it would be easier to answer the question if you could think of an example of when i didn’t do what i should have done, clearly, because then i would be able to try and work out why i did and why i didn’t. dissent is allowed in common law systems, which again distinguishes them from quite a lot of civilian systems, but we don’t dissent just for the sake of dissenting, you dissent if you really feel a degree of outrage at what your colleagues are deciding. so i think it’s the level of outrage that produces it. the radmacher v granatino case was a case about the validity of pre-marital agreements which the common law has always said are contrary to public policy because in effect what they are doing is predetermining the result should a marriage break down in circumstances where, as i pointed out in that case, the purpose of doing that is always to reduce the entitlement of the less advantaged person. it’s never to increase that person’s entitlement, it is always to give them less than they would otherwise have. the radmacher v granatino case happened to be a marriage between a german heiress and a frenchman who was, when they married, an investment banker, so i think he probably thought he could sign away any rights that he might have to participate in his future wife’s inheritance without too much trouble because he was always going to be well-off. and then he decided to become a research scientist instead and the marriage broke up, etc, etc. so the case was about whether the german pre-marital agreement which they had signed, without the sort of safeguards that a common law jurisdiction would have required, was enforceable in english law. well, the answer is it’s not binding on the court in english law, but my colleagues decided that it was actually binding on the parties, which is a bit weird. they didn’t have to decide that, it was a completely out of the blue thing, so i’m afraid i was outraged and i said so. and i pointed out that there was a gender dimension to this, it just happened to be that the less advantaged person in the case was the husband but that’s very rare, but i did think that there was a level of sexism involved in this. one of my colleagues when we were discussing the case said that he thought the husband was a cad for even beginning to bring this claim. now that’s about the most sexist thing i can remember any of my colleagues saying when i was a judge, so i think that’s part of what outraged me. i won’t talk about mcdonald because that outraged me even more. [laughter] if you want me to later i will. rosemary hunter: yes. and that is a case that repays reading, so i’d certainly suggest that people who aren’t familiar with it go and have a look at that one, but it’s a very interesting case of disagreement between members of the court. erika rackley: it’s me again. so now we’d like to move on and talk a little about your life beyond the bench. and i wonder whether you could say a little bit about whether you experienced tension between your formal and institutional roles and your personal life? other judges have spoken about the need to have an outlet, whether it’s going home and having a glass of wine or being able to sort of decompress, and i wondered whether you could say a little bit about that? lady hale: well, i think the most important way of resolving any tension that there might be is to have the right partner. ruth bader ginsburg always said that the most important decision that she ever made in her life was to marry marty. and she was right about that in the sense that he was one of those, in my experience comparatively rare, very clever men who didn’t mind being married to a very clever woman and was prepared to take something of a backseat and do all the cooking, which he did. in fact their daughter i think was known to say, “in our house papa does all the cooking and momma does all the thinking”. [laughter] that actually wasn’t true because he was a very distinguished tax lawyer and a lovely man, but the point is, if you are fortunate enough to have a supportive partner who understands the importance to you of the work that you’re doing, it makes all the difference and i have been fortunate in that respect. when i had my child, i only had one – actually probably only having one child is probably quite a good idea too because one knows, erika has twins, so it’s much more pain when you have them but it’s much less pain later on, whereas i’ve observed so many professional women who have managed to carry on after their first child but have found it much more difficult after their second and even more difficult after their third, although there are women who manage to do it. so not having a lot of children is probably a good way of resolving these problems, but there we go. but i remember that my husband, when i said “well i’m going to carry on working”, said “well i wouldn’t give up now that we’ve got a child so i don’t see why you should if you don’t want to”. so it’s that sort of thing. i think that’s the way of resolving it, not not working. it’s better to have somebody that you can sit in the same study with and be doing similar things, that’s wonderful, you know, and exchanging views and ideas, “well what are you thinking about at the moment? what do you think about this?” that’s great, yeah. erika rackley: linking to one of the themes of the conference, in academia in the uk we talk about ‘citizenship’ to describe all the things we do informally that aren’t necessarily a formal part of our jobs but are things that sort of help and support, advance the discipline or other people’s careers. you’ve done plenty of this too, you’ve mentioned the association of women judges and the impact that that’s had both nationally and globally, i wondered whether you could say a little bit more about why that’s important to you and how it’s been important to you? lady hale: i think it’s one of the things about being in a minority, but a minority whose influence is growing, so linking up with other women has always been important. other women and other feminists, sorry [laughs], other people, who are interested in the same things, that’s always been important. and i think again it goes back a bit to having an academic background because as an academic you do lots of stuff don’t you? you get out and about, you don’t just sit in your study and write articles and books and things. it’s part of being an academic to relate to other people. and i’ve always wanted to relate to people outside. i mean the higher judiciary in england and wales is quite a small club and it’s very clubby. i used to describe my male colleagues as the ‘quadrangle to quadrangle to quadrangle boys’ because they went to boys’ independent boarding schools, many of which have quadrangles, they then went to oxford or cambridge, which are full of quadrangles, and then they went to the inns of court in london, which are also full of quadrangles, so their lives had been bounded by these squares basically, whereas my life had never been bounded by squares. and so i think that was a difference between us and i was very conscious of the need to get out and about and not just stick with the quadrangles. erika rackley: and so thinking about internationally and thinking about getting out and about, i wondered whether you could say a bit about what you think are some of the most pressing issues today, internationally, for women? lady hale: well how long have we got? i’m sure this conference is going to explore quite a lot of those. the two that instantly come to mind are, first, rape and sexual violence as a weapon of war, which is a huge issue and a huge problem in which everybody should be trying to work out solutions and ways of trying to reduce it. the other is the renewed attempt in places that ought to know better to subjugate women’s reproductive capacities, in other words what’s going on in the united states at the moment. those seem to me to be the two biggest issues. my solution to the overturning of roe v wade is that the women of america should go on strike. they should do a lysistrata. you all know the greek play where the women of athens went on sexual strike because they didn’t like what the men were up to. that seems to me to be the obvious solution to all of this, if you won’t give us control over our own bodies we’ll take it back [laughs] and we won’t give you any control over our bodies. but i know that’s a joke but it isn’t a joke in a way, it’s a question of thinking about comparative power and how we try and fight back against this wave of attempts which is really, really frightening. so those are the two issues i think that are the most important and i don’t have serious solutions to them either. erika rackley: and, of course, another consequence of you stepping outside the quadrangles is that you’re now a celebrity, you’re appearing on mainstream tv programmes, you’re much more widely known as a judge than many other judges. i use the word ‘celebrity’ deliberately. i wondered whether you feel you are? if you do feel you are whether that’s been a help or a hindrance in terms of part of the motivations of why you’re wanting to step out in the first place and talk to people? lady hale: well you say celebrity but actually i was pretty well known in the legal community, obviously, because of being first woman this, first woman that, being a senior judge, and so the legal community in the uk and in one or two other places did know about me. but a journalist who interviewed me very recently said “well nobody had heard of you until the 24th of september 2019” and i felt a little bit affronted by that. i thought lots of people had heard of me but she meant nobody she cared about, you know, nobody in her world had. so i think it’s only because of that judgment that i could really count as any sort of celebrity and that will die, you know; sooner or later that will diminish which i think is a good thing. i don’t wish to be any different from any other senior judge, except in the role model department. if i can do good by encouraging young women, other young people from less obviously advantaged backgrounds to think that they too can come into the law and make a success of a legal career, if i can do that, well that i do want to do. so role model i’m happy to be, celebrity i’m much less happy to be and i hope it doesn’t last very long. and i’ll tell you the story about boris the spider if you want.[footnoteref:8] [8: ‘boris the spider’ (1966) was a song by the who about a spider who comes to a sticky end. lady hale has said that if she’d known about the song before she came to deliver the miller (no 2) judgment she would not have worn that particular brooch.] rosemary hunter: there’s an invitation to an audience question if ever i heard one. obviously we know that you have probably many years to go of making a difference in the world in what’s going to happen next, and we’ll talk in a minute about what you might do next, but you also are at a point where you can perhaps look back and see the things that you have created and that might have a lasting influence. so my first of two final questions is, what do you see as your legacy? lady hale: [sighs] well the trouble with legacies is they do tend to get overtaken by other people’s legacies, so one should never be too vainglorious about anything like this. there are some decisions that i hope have changed how people think about things, not so much the dissents, although they were important, but the ones where i was able to carry the court with me. we had a case about female genital mutilation. obviously everybody agreed it was persecution but did a woman who feared female genital mutilation count as a refugee, and that depended upon whether she was a member of a “particular social group”. now it’s fairly obvious isn’t it that if you fear female gentle mutilation it’s because you’re a member of a social group that practices female genital mutilation, it’s blindingly obvious, and yet it had to get to the highest court in the uk for that to be recognised. so there are one or two judgments like that that i’m really quite pleased about. and there is a legacy involved in having been the first to do this, that and the other, and the first woman to reach the top of the judicial structure in the united kingdom. one doesn’t want to be the last, so the legacy has to be that other people are going to follow on, which i’m sure will happen in due course. so i think that’s what i’d say. but otherwise … plug … please read my book. [laughter] rosemary hunter: and then our final question, what are your plans for the future? so after your biography we know that you’re working on another book, so what’s next? lady hale: well i’m having a great deal of fun. i think fun is quite important in life, i‘ve always thought that, and i think women are quite good at having fun, which is one of the benefits of womanhood. but yes, i am working on another book but it’s really difficult. erika mentioned a children’s book, which was not written by me but it was motivated by my career.[footnoteref:9] it’s a wonderful book aimed at children between the age of about 4 and 10, it’s got wonderful illustrations and it’s all about a little girl who comes from my home town in north yorkshire and who goes on a school trip to london and as part of the school trip they visit the supreme court and their teacher has told them that the president of the supreme court comes from that same home town and so, surprise surprise, they’re in the café at the supreme court and i turn up, and we have conversations and we talk about a few cases which really resonate with young kids. so that’s a book that tries to get young people interested in the law and the justice system as something that matters to them. so what i really want to do is to write a book aimed at the general reader and older secondary school students to try and get over the fact that the law is important and should matter to them. and not just the criminal law. when most people think of the law, they know about the criminal law and they’re interested in crime stories and, of course, crime stories are quite dramatic, some of them, but there’s so much more to the law than that. so what i’m trying to do is tell a few stories in a different way. it’s really hard. it’s going to take some work, and i’m not sure we could find an illustrator as good as henny beaumont who did the illustrations in the children’s book, but it’s basically an equivalent of that book for an older readership. that’s the current plan anyway, whether it will happen i don’t know. i’m having too much fun as well. [9: hirsch (n 2).] rosemary hunter: when lady hale says fun, you know, when we asked her when we met up yesterday, ‘what have you been doing for the last week?’ and we know that when we had seen her recently at the launch of our book of essays in honour of lady hale to mark her retirement from the supreme court[footnoteref:10] and she had given us a long list of speeches and events and things that she was appearing at, and then similarly in the last week she’s been extremely busy and still being extremely generous with her time. as well as appearing at literary festivals and various other occasions in order to talk about her own work, she’s still giving an awful lot of her time to other people’s causes and events and that’s something that has marked her leadership in a way, being very open and very willing to engage with a huge range of people and events and occasions. so now is the opportunity for you to engage with lady hale, so we’re very happy to welcome any questions from the audience. [10: rosemary hunter and erika rackley (eds) justice for everyone: the jurisprudence and legal lives of brenda hale (cambridge university press 2022).] audience question: my question returns to your three elements of citizenship: belonging, participation and relationship. i wonder whether rather than starting with ‘belonging’ it would be better to think in terms of ‘membership’. lady hale: well thank you. i think we’ve got to start with belonging because that is the basis of citizenship as the law understands it. so we have to start with that, we are lawyers after all. i think when i talked about participation i meant the same as you meant by membership, so being recognised as well, as real belonging, as opposed to the belonging that for so long was the case which depended upon who your father was or who your husband was. so, the real membership which gives you the right to belong in your own right is something for which we should be obviously fighting. and we are mostly there but not completely there, certainly not throughout the world. and that bleeds into the participation in the polity of whatever nation state we’re talking about. so these things all, and the relationships also, they all come together but i thought it rather important to start with the foundational concept of citizenship which is nationality basically, belonging. audience question [abridged]: is citizenship a constitutional matter? lady hale: of course it is. and in fact one of the roles of the judges of the supreme court of the united kingdom is also to be judges in the judicial committee of the privy council, which was originally the final court of appeal for the whole of the british empire. and it is still the final court of appeal for about two dozen small jurisdictions, smaller jurisdictions, some of which are completely independent, some of which are still british overseas territories. we won’t get into the chagos saga,[footnoteref:11] though i would love to do so, but most of them have got constitutions, in fact they’ve all got constitutions. when i talked about belonging i was thinking of the constitution of bermuda because one of the principal cases about constitutional interpretation in uk law relates to a case about bermuda and about who belonged to bermuda, and that meant citizenship and it’s in the constitution. the case was about whether a child of unmarried parents counted as belonging to bermuda and the privy council held yes, even though at that stage a child of unmarried parents was not normally included in the definition of the word ‘child’.[footnoteref:12] so it was a good example of purposive and forward looking, broad-minded constitutional interpretation. but that’s where i got the thought about belonging from, but of course citizenship is the foundation. how do you define the people for whom you’ve got this constitution? by citizenship. so i think it is the foundational thing. now there was something else that i wanted to say but i’ve forgotten what it was. it will come back. [11: the chagos islands are an archipelago in the indian ocean south of the maldives. they were formerly a dependency of mauritius, but in the lead-up to mauritian independence they were reconstituted in 1965 as the british indian ocean territory. the chagos islanders were expelled from the territory between 1967 and 1973 to enable the united states to build a military base on the largest island, diego garcia. mauritius continues to assert sovereignty over the islands and the chagossians have engaged in an ongoing struggle to return to their homeland. these claims have given rise to extensive litigation both in the uk and in international tribunals. ] [12: minister of home affairs v collins macdonald fisher and eunice carmeta fisher (bermuda) [1979] ukpc 21, [1980] ac 319.] audience question [abridged]: question regarding the sale of citizenship, the misuse or abuse of the concept of belonging, and the way in which citizenship might be manipulated by some countries. lady hale: all of which is very just comment and i think there maybe the odd session later in this conference which is going to look at these issues, so it would be presumptuous of me to try and answer everything that you have raised. the thing that i was going to mention earlier which is something that is probably…i mean just about…sitting there in the un convention of the rights of the child is the right to be counted, the right to have your birth recognised, registered, officially acknowledged. that’s the foundation to citizenship and belonging isn’t it? so, this right to be counted and identified, i think is really, really important. it is just sitting there in the un convention on the rights of the child, but it’s not sitting there in every constitution which it should be, so that’s the foundation. yes, you can have dual citizenship and there are circumstances in which you can actually buy dual citizenship. there’s a certain amount of controversy, shall we put it that way, within the european union about the extent to which you can get yourself a visa, which is the route to citizenship, through major investment in the country in which you want to have your say. well, that’s a controversy in england as well; it wasn’t until recently but it is now for fairly obvious reasons. but the counterpart to that is the deprivation of citizenship which is a really serious question. there’s an international treaty that says you can’t deprive somebody of their citizenship if it will leave them stateless and that’s what uk law says, but what do you mean by stateless? and we have got at the moment, of course, a very, very well-known case of a schoolgirl who was groomed along with fellows to go to syria where she married, had three children, all of whom died. she’s a british citizen who wants to come back to the uk, but the uk want to deprive her of her uk citizenship because they say she’s a citizen of bangladesh. bangladesh is busy saying no she isn’t a citizen because they don’t want her either. so there she is, you know, sitting in a refugee camp in northern syria which is not a good place to be. and there are lots of stories like that and that’s another really serious issue which i think has only become recognised and acknowledged in recent years. so citizenship is a big question with all of these sorts of issues and if we’re thinking as feminists, obviously the people who are able to buy citizenship are far more likely to be men than women. and the reason i raise shamima begum is that she’s a vulnerable young woman and she has been deprived of her citizenship. she was a child when she went, and although she is challenging it, it’s very difficult to challenge it from afar. i wouldn’t like to say that the deprivation risk is greater for women than it is for men, i’m not sure that it is, but nevertheless there are definitely gender issues sitting there. so thank you. audience question:[abridged]: thank you for such a simulating plenary. the last question and response raises for me a question about the intersection between feminist laws and international relations. these are very complicated questions. there are examples where women’s voices have been raised, for example in relation to sexual violence, but what about issues relating to foreign policy – for example in libya, syria or even yemen after the arab spring? what would be a feminist legal judgment and how could feminists, feminist legal experts and feminist arab experts work together to criticise foreign policy that impacts so terribly on women? lady hale: no. there is no simple answer to that question and i think it’s one that my two colleagues here who are working on an international feminist judgments text might have more things to say about than i have. but i think that the answer, i’m afraid, is that these are questions that generally are answered by politicians rather than by legal structures. there are international legal structures, and they work in certain contexts, but they don’t work in others and i think some of the issues that you’ve raised, it’s fairly clearly political answers that are needed. so the role of feminists is to make sure the politicians understand the perspective and the impact. i think that is probably what your role, even my role might be. and to get together to workshop, to ask what’s going on so that it can be made more public, because it’s very easy to ignore these aspects of things – just listen to political debates, that’s not what they’re often about. as you say they are about rape and sexual violence, yes, that is on the political agenda, but the much deeper way in which wars and aggression impact upon women in many ways more or differently from the way in which they impact upon men, that’s a much deeper issue that i would say the politicians need educating about. audience question [abridged]: thank you very much. you’ve talked about reasons for having more diversity in the judiciary, but i wondered what you think about the importance of religious diversity? lady hale: well that’s another fascinating question, to which i haven’t yet devoted enough thought. but my initial thought is that if it is a country in which there is a constitution, and there is the law, and the law is by and large a secular law, well then there is no problem about religious diversity in the sense of people of all faiths and none becoming judges as long as they recognise that their duty is to the constitution and the secular law and not to their religious persuasion. i think that is what i would have. i would welcome religious diversity rather than the reverse. but, of course, i come from a country where the law is secular law, as indeed i think it should be, and judges take an oath to do right to all manner of persons according to the laws and usages of this realm without fear or favour, affection or ill will. that’s an oath i’ve sworn several times and i find it very moving and i think it sums up what being a judge in the united kingdom is all about. if somebody is prepared to swear that oath and mean it, well then it doesn’t matter what their religious beliefs are. but if of course you want to start going into a different sort of constitution where a particular religion is embedded in the constitution, well then you get into much more difficulty. and it’s difficult obviously to have diversity …but it can be done. i’m just thinking about israel, which is the obvious example. it all depends what you mean by jewish, of course, but, you know, israel is established as a jewish and democratic state and there are people who say “well how can you say both of those things? how can you reconcile them?” well they have managed to reconcile it on the whole, by and large under some very distinguished judicial leaders, certainly in the recent past. and so it can be done but it can be very, very hard. so i don’t envy those countries where they’ve got much more to confront in reconciling the two. we’re the least religious country i think probably in the western world in england, which on the whole is a good thing. now of course in the united states they have got a constitution where it’s avowedly not religious but they are one of the most religious countries [laughs] and it shows. i mean it shows…well we could get back to certain recent decisions but it shows. and so yes, religious diversity is fine provided people are prepared to subscribe to secular principles. audience question [abridged]: this is a follow on from the previous question: is it un-feminist to have political appointments to the judiciary? is it more feminist to have judicial schools where people learn to be judges? lady hale: i mentioned the distinction earlier between the common law way of doing it, which is that you have a career elsewhere in the law and then you become a judge, and there are a variety of ways this might happen ranging from non-party political election, party political election through political appointments and recommendations, through non-political appointments and recommendations, through merit-based independent recommendations (which is what we have in the uk). so there’s a range of ways and a range of arguments about it. on the other hand, of course, we have the general practice in civilian countries which is you do a law degree and then you decide whether you’re going to become an academic, a practitioner or a judge, then you go and do judging and judging exams, and that of course has resulted in a majority of the junior judges being women in countries like france, spain and italy. but we do tend to find that if we look at the profile of the judiciary, the higher you get in the judiciary the proportion of women seems, under the common law system and under the civilian system, to be remarkably similar, in other words not 50/50, not even 60/40, more like 30/70, 35/65 – which is improving in the uk, it’s improving in other common law countries, definitely, of course, in canada where they made a distinct attempt to do that. there are, of course, all sorts of reasons for this, one of which is mobility, women tend to be less able to move wherever promotion will take them; one of which is balancing domestic and professional responsibilities, which again women tend to have to do more than men have to do; and some of it is discrimination [laughs]. i think those are the three main reasons. and those are universal, you know, throughout developed western democracies whether they have a common law or a civilian tradition. so i think the feminist take on this is we need more women at the top, and we need to address the systemic barriers to women achieving the top rather than necessarily change our entry level practices, because some of us think it’s rather a good idea to have had a life outside court, you know, before you start judging other people’s cases. some of us think that that’s a good idea. we may or may not be right but that’s what we think. erika rackley: okay. thank you. it’s time to draw our questions to a close. thank you for all your questions and it just remains for us to thank lady hale for talking to us today before we go over to coffee and maybe find out the answer to what happened with boris and the spider. so, thank you very much lady hale for talking to us. [applause] __________________________________________________________________________________ 2 ___________________________________________________________________________ 3 genovese closing remarks ______________________________________________________________________________________________________________ feminists@law vol 3, no 2 (2013) ______________________________________________________________________________________________________________ feminist jurisprudence and the question of home: some closing remarks ann genovese[footnoteref:1]* [1: * senior lecturer, melbourne law school, university of melbourne, australia. genovese@unimelb.edu.au ] i do not want to take up too much time, as i want to open the floor to the audience. i will leave then the questions raised by the contents of the papers: the property and administrative law questions; the problems of law reform, and public housing; the very idea of the social the idea of where home sits as responsibility of and space for and by the polis, in arendt’s terms; not to mention how we tell and account for home, and its pasts. instead, i just wanted to draw two interrelated things out of how these papers speak together, and what they offer to feminist jurisprudence. the first is they show us what work feminists in and at law have done, and do, to complicate and think with, the effect and affect of binaries: home/homelessness, the house/housing, public/private, safety/violence, state/land. all three papers remind us that an important aspect of feminist attention to these binaries is to show how law operationalizes, authorizes and sanctions the mediation between institution and experiences of living with law. all three show us this has profound effects for woman, that require historical, as well as ontological and epistemological consideration in our own time and places: variously oriented to describing or re-authorizing an imagined space to live at the spa green estate, or the constitutional referenda in australia (or folkhem), or through the legislative and administrative practices of the local authorities attending to women’s homelessness in contemporary london. importantly, in offering us doctrinal and jurisprudential and historical insights into how home works, all three papers also describe, and let us observe, that part of that project for feminism politically and intellectually is to show there is, and always has been, ambivalence and disagreement, tensions and ambiguity, in how home (or its corollaries, the private sphere, work, care, domestic status, and condition) operate for women. this is also a constant theme, practice and intent of the history of feminism itself. it is important then to see that in each paper, how the speakers interpret and think about their archive, and to listen to the conversation between these archives, opens up different considerations of what home might carry in our present desire to make sense of the presence of the state and law in our immediate lives and our institutional recognitions. for example: the consideration by margaret davies of the problematic of identity politics and theory the desire for dislocation, identified by de lauretis and braidotti, that women need to epistemologically leave home to realize ourselves, is placed into relation with observations about the changing materialities of subjects, and the counter pull of groundedness. as margaret davies writes, since the late 1980s theory has strongly valorized and even romanticized fluidity, flux, dynamism, diaspora and change: but often forgets, as she notes (and refers to sara ahmed et al.), ‘being grounded is not necessarily about being fixed: being mobile is not necessarily about being detached’. this carries weight and meaning for helen carr’s and caroline hunter’s papers in a different way: they offer salient redescriptions through the histories they tell of law’s present actions that the project of feminism itself its speaking of how women’s freedom and liberation, as well as protection and care, happen inside and outside, because of and in spite of, the idealized and actual place of ‘the home’ is integral to the reordering by state and law of social housing and duties to the home-less, in our own time. the second thing i want to draw out is how my friends and colleague do this. they not only ask us to think about home conceptually and doctrinally as a lived experience of law, but in doing so, as helen carr says, they show a site and a way of acting with law that connects with the tradition of feminist praxis concerned with reimaging how we might live. in staging these papers as a conversation, then, what is so important to me, and what i am really pleased has been opened up, and hope we can discuss further, is the question of how we might attend to home as a way of conducting practices of jurisprudence. all three, in different ways, show how we can potentially frame feminist legal theory’s own home architecture to work through a set of problems that in the current episteme appear at an impasse, or at least in constant ambiguity or tension. these problems are as so eloquently argued to do with what the state continues to mean, and how we are to able to conduct ourselves responsibly as legal thinkers in and for and of a place in relation to its limits. it is the mode of address for this argument, its named and specific feminism, which it is important to emphasise: and to remember how it has assisted many scholars concerned in different ways with the politics and experience of subjects historically and legally excluded from the shape and theory of law and state of place. (in particular, as margaret davies notes in the second half of the written paper, in relation to australia, aboriginal people.) through careful description, and observation, what the papers produce then is a gentle reminder that the usual repertoire of theoretical or critical approaches to law, which are sometimes practiced or described in a disconnected or even agonistic way, are unable to address the problems of how we live and reimagine law in a multi-dimensioned way, that our own times insist upon. so these papers, in showing how feminist jurisprudence has encountered home, remind us to take stock, to pause, to note our own canon and its inferences and intents, its internal conversation and inter-relationships. in so doing, there is an invitation here to reframe the constancy of public/private, experience/institution that exists in the political and legal architecture of home for feminist and broader critical legal thinking, and to observe its operation as a relational experience that brings these together into a single, complex, consideration. ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ bhandar some reflections on bds __________________________________________________________________________________________________________ feminists@law vol 4, no 1 (2014) __________________________________________________________________________________________________________ some reflections on bds and feminist political solidarity brenna bhandar[footnoteref:1]* [1: * senior lecturer in the school of law at soas, university of london and a member of the centre for palestine studies. email bb29@soas.ac.uk. she has been a visiting lecturer in canada and south africa. her areas of research and teaching include property law, equity and trusts, indigenous land rights, post-colonial and feminist legal theory, multiculturalism and pluralism, critical legal theory, and critical race theory. in her current research project, she examines techniques of ownership and dispossession in settler colonial contexts. thanks to adam hanieh, alberto toscano and david lloyd for their helpful feedback on an earlier version of this piece.] we are not asking you for heroic action or to form freedom brigades. we are simply asking you not to be complicit in perpetuating the crimes of the israeli state.[footnoteref:2] [2: ali abunimah, “after witnessing palestine’s apartheid, indigenous and women of color feminists endorse bds, 7 december 2011, http://electronicintifada.net/blogs/ali-abunimah/after-witnessing-palestines-apartheid-indigenous-and-women-color-feminists (accessed 26 april 2014). ] a little over two years ago, on march 13, 2012, the un committee on the elimination of racial discrimination (cerd) made a series of findings in their observations on israel’s compliance with the international convention on the elimination of all forms of racial discrimination. significantly, they found that the state of israel’s policies towards palestinian and bedouin communities as regards land rights, citizenship, education and protection from racial and ethnic discrimination, violate several articles of the convention, including articles 3, 5 and 7.[footnoteref:3] article 3 condemns “racial segregation and apartheid.” the news travelled quickly through social and political networks of activists, lawyers working for human rights, and others, but seems to have been ignored by most mainstream media. similarly, the russell tribunal on palestine (findings of the south african session) found that: [3: committee on the elimination of racial discrimination, consideration of reports submitted by states parties under article 9 of the convention: concluding observations of the cerd: israel, 80th session, 13 february-9 march 2012, cerd/c/isa/co/14-16, available at http://www2.ohchr.org/english/bodies/cerd/docs/cerd.c.isr.co.14-16.pdf. see orna ben-naftali, aeyal m. gross, and keren michaeli, “the illegality of the occupation regime: the fabric of law in the occupied palestinian territory” in a. ophir, m. givoni, s. hanafi, eds, the power of inclusive exclusion: anatomy of israeli rule in the occupied palestinian territories (new york: zone books, 2009), pp. 31-88 at 49; the authors speculate that the israeli government’s actions in the west bank & gaza might well be in violation of article 7 of the rome statute, which criminalises apartheid and deems it a crime against humanity. ] [s]ince 1948 the israeli authorities have pursued concerted policies of colonisation and appropriation of palestinian land. israel has through its laws and practices divided the israeli jewish and palestinian populations and allocated them different physical spaces, with varying levels and quality of infrastructure, services and access to resources. the end result is wholesale territorial fragmentation and a series of separate reserves and enclaves, with the two groups largely segregated… this policy is formally described in israel as hafrada, hebrew for ‘separation’.[footnoteref:4] [4: see executive findings of the third session of the russell tribunal on palestine: http://www.russelltribunalonpalestine.com/en/sessions/south-africa/south-africa-session-—-full-findings/cape-town-session-summary-of-findings (accessed 26 april 2014). ] ascribing the term apartheid to israeli state practices raises a plethora of complex political issues, most particularly, the inevitable comparison with south africa’s apartheid regime. i will instead focus on how the findings of the un cerd, along with some other recent legislative innovations of the israeli state, may augment our understandings of the spatial and temporal dimensions of the occupation, and the political contours of this particular settler colonial regime. i will then discuss how apartheid, based on a logic of separation and fragmentation, is challenged by the bds movement. the animating spirit of bds, based on a global politics of solidarity, finds a committed ally in a feminist politics that is anti-imperialist and anti-war. the un committee’s findings relate to israeli laws and legal practices in the domains of property and criminal law, and provision of education the un cerd adopted a series of observations that relate to racial segregation between jewish and non-jewish sectors in israel, including in the education system and in the provision of and access to housing and land, which “raise issues under article 3 of the convention.”[footnoteref:5] the committee found that the two separate systems of education, one in hebrew and one in arabic, remain impermeable to one another except in exceptional cases. the maintenance of separate municipalities – jewish municipalities and the “so-called municipalities of the minorities” – also raises concerns under article 3.[footnoteref:6] in particular, they noted the recently enacted admissions committees law (2011) that empowers private committees to reject applicants who wish to reside in a municipality on the basis of whether they are deemed to be “suitable to the social life of the community.” this has enabled admissions committees in predominantly jewish neighbourhoods and also of course in burgeoning settlements to bar palestinians from residing in those neighbourhoods. [5: cerd/c/isa/co/14-16, part c, para. 11. ] [6: ibid.] the committee noted several different aspects of the legal discrimination with respect to land issues that affect palestinian and bedouin communities. several recently enacted laws led the committee to recommend that the “state ensure equal access to land and property” and to “abrogate or rescind any legislation that does not comply with the principle of non-discrimination”. the language of non-discrimination doesn’t in my view adequately describe the reality of the ongoing, daily appropriation of palestinian land in the west bank, east jerusalem, the naqab (negev) and many other areas, which begins in the post-mandate era with the absentee property law. as scores of palestinian and israeli scholars have recounted, the absentee property law placed all palestinian property owned by people who were deemed to be absent in 1948 with the custodian of absentee property. this land was then later transferred to the israeli state, and in some instances, private organisations, including settler organisations. the use of military orders, land use laws and urban planning policies, restrictions on the mobility of palestinians, mandate-era laws regarding the appropriation of land on the basis of how the land is used, all operate recombinantly to dispossess palestinians of their land. recently enacted laws however, some of which are analysed by the committee, reflect changes in the mode of appropriation relied upon over the past 68 years. the israel land administration law of 2009, the 2010 amendment to the land (acquisition for public purposes) ordinance (1943); and finally the 2010 amendment to the negev development authority law (1991) effectively set out legislative mechanisms for the appropriation of palestinian land that will be transferred into a private market economy of property ownership. this reflects a shift from the process by which appropriated land was first held by the jewish national fund for the jewish people, and sometimes at a much later time, transferred into the hands of private organisations, including settler organisations. this marks a significant change from a system of ownership in which the imperatives of an ethno-nationalist settler state initially replaced a private market in land, which is far more typically an attribute of settler colonial systems of property ownership. in canada, for instance, land that was appropriated from first nations was placed directly into a private market economy, parasitic on the fiction of underlying crown sovereignty. there are a few salient aspects of israeli apartheid and racial discrimination that the committee did not consider, which are also relevant to a consideration of state-sanctioned racism and segregation. the citizenship laws that were upheld in 2012 by the israeli supreme court make it virtually impossible for palestinians with israeli citizenship to reside in israel with their spouses and children who do not have israeli citizenship.[footnoteref:7] the citizenship and entry into israel law was amended in 2003 to exclude palestinians from obtaining israeli citizenship through marriage. specifically, the amendment to the nationality law prohibits granting residency or citizenship status to palestinians from the 1967 occupied palestinian territories married to israeli citizens. the supreme court upheld the validity of this racially discriminatory law, on the basis of security imperatives.[footnoteref:8] [7: see mazen masri, “love suspended: demography, comparative law, and palestinian couples in the israeli supreme court” (2013) social and legal studies 22(3), pp. 309-334. ] [8: for an important analysis of two judgments in particular, and how these rulings relate to israel’s status as a democracy and an ethno-cratic state, see masri, ibid. ] the finding that israel is effectively perpetuating apartheid is significant for many different reasons. one implication is that describing israel as an apartheid state may shift the way we understand the spatial and temporal dimensions of the conflict over land, resources, and political citizenship. another consequence of describing state practices that amount to a form of socio-economic, political and racial apartheid is that this discourse may well influence our political responses to this ongoing situation of dispossession. to begin with the first, in recent years there has been a move towards conceptualising israel/palestine as one geo-political space. seeing the occupation as a conflict between israel and the west bank & gaza masks the jurisdictional reality (and complexity) of the situation, one in which similar legal techniques are used throughout the west bank, the naqab, and many mixed arab-jewish towns and cities to displace palestinians. israeli settlements and the construction of the wall in the west bank have resulted in the appropriation of 59% of west bank land, some of which lies in ‘seam zones’ that make palestinian farmland inaccessible to its owners. residents of some west bank villages have had contact with their families, lands and businesses cut off by the wall. the settlements are connected to each other by roads that palestinian west bank residents are not allowed to travel on. israel has divided the west bank into sixty discontinuous zones, with over 300 checkpoints littering the landscape, many of them mobile or flying checkpoints.[footnoteref:9] in gaza, farmers are unable to cultivate their lands which lie in the expansive ‘seam zone’ guarded by the israeli military. the three-mile nautical limit in which gazans can legally fish has left thousands of fishermen devastated. inside the boundaries of israel, bedouin communities are facing eviction, dispossession and criminalisation through reliance on ottoman-era land laws that have also been used throughout the west bank to appropriate land for the israeli state. thus, to speak of israel and palestine as two separate geo-political entities really belies the reality of a space that is burdened by a complex regime of overlapping jurisdictions of political, economic and military control and an occupation that is not confined to areas that have clearly delineated borders. the concept of apartheid, used to describe systemic and legalised racial segregation within the boundaries of one territory is helpful in describing the contours of the occupation. it also more accurately reflects the fact that prolific settlement activity throughout the west bank has made the possibility of a meaningful two state solution difficult to imagine.[footnoteref:10] [9: ben-naftali, gross and michaeli, op.cit, at p. 45. ] [10: for different viewpoints on the one and two-state frameworks, see “what comes next?: a forum on the end of the two-state paradigm” in jadaliyya: http://www.jadaliyya.com/pages/index/15082/co-editors-mouin-rabbani-and-noura-erakat-and-o.i (accessed 26 april 2014). ] the fragmentation of land, populations, communities, networks of movement and communication reflect the logic of the oslo accords, which, in the view of adam hanieh, have essentially allowed israel to incorporate various forms of dispossession within a “comprehensive system of control.”[footnoteref:11] hanieh details how, to take one example, the destruction of the palestinian agricultural sector from 1967 onwards becomes cemented post-oslo in the transformation of palestinian land into a patchwork of isolated enclaves. the lack of access to their agricultural land, sources of water for irrigation, and the rampant building of settlements on fertile ground has meant the devastation of palestinian agriculture, the impoverishment of palestinian farmers and labourers, and also ensured dependency on foreign imports, all of which are controlled by israel.[footnoteref:12] [11: adam hanieh, lineages of revolt: issues of contemporary capitalism in the middle east (chicago: haymarket books, 2013), pp. 106-115, 121. ] [12: ibid. ] neo-liberal economic policies have been shaping life in the west bank for several years. the complex relationship between the security apparatus, economic policies of the palestinian authority (pa), the punitive conditions on the international funding it receives, and the financial dependence of vast swathes of people employed by the pa have created a web in which many people are caught, and many excluded, from globalised circuits of credit and debt that carry the promise of a comfortable lifestyle in the midst of the occupation. [footnoteref:13] [13: for an indispensable analysis of the political and economic costs of the pa’s embrace of neo-liberal economic policies see r. khalidi and s. samour, “neoliberalism as liberation: the statehood programme and the remaking of the palestinian national movement” (2011) journal of palestine studies 40(2), pp. 6-25. ] frantz fanon warned us of the pitfalls of national bourgeois consciousness, where, to paraphrase azmi bishara, those who have political power under the occupation “exploit their position as political elites to transform themselves into economic elites.”[footnoteref:14] the economic policies of the pa are re-constructing the spatial and material conditions of life in the west bank. an economic process that seems to have no need for a unified territory, nor for respect of basic democratic rights, nor for self-determination (indeed, a process premised upon the continual deferral of national liberation[footnoteref:15]) is unfolding at a seemingly rapid pace. how can self-determination be achieved when the scaffolding of a neo-liberal state form has already been put in place? [14: azmi bishara, “4 may 1999 and palestinian statehood: to declare or not to declare?” (1999) journal of palestine studies, 28(2), pp. 5-16. ] [15: khalidi and samour, op. cit. ] the confrontation between liberation politics and the neo-liberal policies of fayyad (finance minister of the pa until 2012; the current finance minister is shukri bishara), were revealed in a 2011 scene when palestinian prisoners were released in the deal struck by hamas with the israeli government. palestinian prisoners were greeted by scores of ordinary and working class families in the recently reconstructed presidential compound, the muqata, in ramallah. linda tabar noted how the mass presence of ordinary palestinians, many from rural areas, drinking tea served by impoverished street vendors, “momentarily subverted the presidential authority and power” reflected in the architecture of the muqata. tabar notes: after over sixty years of struggling for freedom from zionist settler colonialism, fatah officials are embracing the very symbols of dominant state power and authority, which upholds the system that oppresses them. the real issue underlying transformation of the muqata is the way the oppressed begin to accept the system of power and dominance they have long opposed.[footnoteref:16] [16: l. tabar, “the muqata: facade of a palestinian state”, al-akhbar, 26 december 2011, http://english.al-akhbar.com/content/muqata-facade-palestinian-state (accessed 26 april 2014). ] the pa has become the purveyor of neo-liberal economic policies that have facilitated a growing disparity in wealth between an elite minority and the mass of the palestinian population. a growing middle class (of entrepreneurs, professionals and employees of the pa) constitutes a class of consumers for the wide range of goods previously unavailable in the west bank. in ramallah, the consequences of such policies are clear; real estate speculation, the explosion of 5-star hotels and fancy car dealerships built on a bubble of debt and credit mirrors the kinds of economic policies repeatedly adopted throughout the world as part of the post-washington consensus. feminist critics of neo-liberalism have stressed its differential impact on the lives of working women world-over. the logic of bds, which aims to create a unified and global response to the occupation, pushes back against these policies and practices of fragmentation and control. bds applies to all activities that support the occupation, whether they take place on a settlement in the west bank, a boardroom in tel aviv, or the construction of a rail line in jerusalem. the bds movement also provides a bulwark against the creeping neo-liberalism so evident in the west bank. as a civil society movement, bds by-passes the pa and the political impasse it represents. we can see how the campaign to boycott g4s for instance targets the operations and practices of an entity that exemplifies quite perfectly the global reach of private corporations into an astonishingly broad-spectrum security apparatus. the g4s campaign connects the fact that this multinational corporation, the world’s largest security firm, is not only a major service provider to israeli prisons[footnoteref:17] but is also responsible for the deaths in custody of african refugees such as jimmy mubenga, who was killed while being deported from the uk.[footnoteref:18] the interconnectedness of the violence of detention the world over, from which this particular corporation makes enormous profits, is brought to the fore by activists who are attempting to build solidarity activism between the uk, palestine, the us, europe and elsewhere. [17: see http://www.stopthewall.org/g4s-israeli-occupation-palestine-and-emergence-g4s-brazil (accessed 27 april 2014). ] [18: see http://www.cps.gov.uk/news/latest_news/death_of_jimmy_mubenga/ (accessed 27 april 2014). ] why bds is a feminist issue radical politics and political organising seek to reinvent the world according to anti-imperialist, anti-capitalist, anti-patriarchal and anti-heteronormative economies of representation and production. several recent conversations about the bds movement with critically thinking academics gave me an opportunity to think about why some people choose not to support bds even in light of this on-going situation of colonial dispossession of the palestinian people. the first argument is that to support bds is to treat israel as an exceptionally rogue state, or as exceptionally violent. why single israel out? one academic told me that she was tired of hearing about israel when there are so many other awful things going on in the world. implicit in this argument is that criticism of israel and support of bds is somehow anti-semitic. for a robust deconstruction of this idea see judith butler’s response to larry summers’ controversial accusation on this very point,[footnoteref:19] which she has had cause to reiterate on numerous occasions since 2003, in response to the growing censorship and legal prosecution of bds activists and supporters.[footnoteref:20] [19: judith butler, “no, it’s not anti-semitic”, london review of books 25(16), 21 august 2003, http://www.lrb.co.uk/v25/n16/judith-butler/no-its-not-anti-semitic (accessed 26 april 2014). ] [20: a. horowitz, “judith butler, rashid khalidi and over 150 other scholars condemn censorship, intimidation of israel critics”, mondoweiss, 14 march 2014, http://mondoweiss.net/2014/03/scholars-censorship-intimidation.html (accessed 26 april 2014). ] anyone familiar with the legal-political techniques used to dispossess indigenous peoples in settler colonial societies such as canada, australia, and south africa, amongst others, will find a great resemblance between these places and the laws briefly described above. of course israel is not exceptional in its violence. the by-now well-known globalisation of policing tactics that see israeli military personnel cavorting with their indian counterparts to advise on handling the conflict in jammu/kashmir;[footnoteref:21] the recent consideration of the use of ‘skunk oil’ and water cannons by british police forces on potential protestors[footnoteref:22] (skunk oil is quite commonly used by the idf in west bank protests);[footnoteref:23] the racist (and sometimes lethal) violence that black communities are quite regularly subjected to in the uk and in the us also reflect the ways in which colonial relations of race, class and gendered subjugation are continually re-written in the present, across the globe. the prolific use of racially charged “stop and search” tactics in the us and the uk bears a family resemblance to the routine humiliation of palestinians at checkpoints. but limiting oneself to an exercise in comparison between disastrous forms of oppression that would attempt to measure and quantify state and corporate forms of violence on indigenous and racialised populations, as though we could catalogue and rank them, is really to miss the animating logic of bds, which is about building solidarity amongst people who resist oppression. [21: see http://www.telegraphindia.com/1100806/jsp/nation/story_12777847.jsp (accessed 27 april 2014). ] [22: see http://www.theguardian.com/uk/2012/apr/09/riot-control-chemicals-plastic-bullets and http://www.theguardian.com/uk-news/2014/jan/22/police-home-secretary-approve-use-water-cannon-austerity-protest (accessed 27 april 2014). ] [23: see middle east monitor, 6 march 2013, https://www.middleeastmonitor.com/news/middle-east/5416-israeli-security-forces-spray-raw-sewage-at-palestinian-homes (accessed 26 april 2014). ] the practices of the israeli state are also reminiscent of racially discriminatory laws that african americans had to face until the 1960s in the us. as angela y. davis has noted: we here in the us should be especially conscious of the similarities between historical jim crow practices and contemporary regimes of segregation in occupied palestine. if we have learned the most important lesson promulgated by dr. martin luther king – that justice is always indivisible – it should be clear that a mass movement in solidarity with palestinian freedom is long overdue.[footnoteref:24] [24: angela y. davis, “jim crow and the palestinians”, counterpunch, 8 october 2012, http://www.counterpunch.org/2012/10/08/jim-crow-and-the-palestinians/ (accessed 26 april 2014). ] creating solidarity, coalitions, and transformative feminist spaces requires a critical self-reflexivity and praxis that indigenous, black and third world feminists have been developing for many decades. chandra talpade mohanty, angela davis, and selma james all point to the fact that the mainstream and left feminist movements have much to learn from black radical and anti-colonial movements.[footnoteref:25] mohanty argues that the work and conceptual challenges posed by “black and third world feminists can point the way toward a more precise, feminist politics based on the specificity of our historical and cultural locations and our common contexts of struggle.”[footnoteref:26] what lessons can we glean from other political movements? in terms of learning from black freedom struggles in the us in the 20th century, we can recall that the montgomery bus boycott of 1955 was a pivotal and generative event in the civil rights movement. boycotts had been used throughout alabama during the early 1950s and with the widespread support of black communities in a variety of cities, including montgomery, they caused sufficient economic damage to the city bus companies to effect substantive political change.[footnoteref:27] the grunwick workers strikes in the 1970s, led largely by immigrant south asian women, depended on solidarity boycotts to strengthen their cause.[footnoteref:28] palestinians have a long history of utilising boycott strategies to resist occupation. the current bds movement sits within this long and varied history of political resistance. [25: chandra talpade mohanty, feminism without borders: decolonising theory, practising solidarity (durham, nc: duke university press, 2003), p. 107; angela y. davis, women, culture and politics (london: vintage books, 1990), pp. 22-23; selma james, sex, race and class (bristol: falling wall press, 1973), p. 9. ] [26: mohanty, ibid. ] [27: catherine a. barnes, journey from jim crow: the desegregation of southern transit (new york: columbia university press, 1983), p. 124. ] [28: see http://www.leeds.ac.uk/strikingwomen/grunwick (accessed 26 april 2014). ] do the similarities in techniques of dispossession and repression between israel, the us, australia, canada – not to mention a slew of other places – mean that we ought not to support a growing and strong civil society movement in palestine and abroad? many critics of bds often query why people who have no explicit personal, familial or professional attachment to either israel or palestine take political action in relation to the conflict; and furthermore, often wonder why boycott action is not taken in relation to a range of other politically repressive regimes. these critics ignore the fact that most non-palestinian supporters of bds are also active in other political organisations and movements that share the political objectives of the bds movement, as david lloyd discusses in the introduction to this special section. second, these critics of bds also ignore the fact that over 170 palestinian civil society organisations (including trade unions, women’s organisations, ngos and others) have asked people the world over to support them in their struggle against the occupation;[footnoteref:29] to support bds is an act of political and ethical responsiveness. a colleague who recently decided not to attend a conference at an israeli university reached his conclusion by drawing an analogy between the bds movement and a labour strike. to attend the conference and actively not support the academic boycott would have been, for him, akin to crossing a picket line. while many academics may have little difficulty in undermining collective struggles for social justice, for those who see themselves as politically progressive i think this is a useful analogy. [29: see http://www.pacbi.org/etemplate.php?id=2380 (accessed 27 april 2014). ] the type of feminism that the authors in this special section on bds subscribe to is anti-imperialist, anti-colonial and critical of militarism. revealing the complicity of a masculinised and racial militarism that finds firm roots in colonial and imperial wars, feminists in the post-war era have been at the forefront of opposing warfare in vietnam, iraq, afghanistan, and elsewhere. from the madres de la plaza mayo of argentina, to women in black (who have also been active in israel[footnoteref:30]) women have been at the forefront of opposing state terrorism and violence. [30: see m. kaye/kantrowitz, “feminist organising in israel” in r. riley, c. talpade mohanty and m. bruce pratt, eds. feminism and war: confronting u.s. imperialism (london: zed books, 2008) pp. 243-249 at p. 244 .] the occupation and dispossession of indigenous lands, and the spatial violence of segregation that has long characterised the lives of racialised and poor women the world over, have been understood as central concerns of particular types of feminism. colonialist state forms have always been patriarchal and heteronormative in substance and structure. a feminist politics that fails to address the urgent and ongoing struggle for decolonisation remains tacitly in approval of, if not complicit with, neo-imperial aggression that is thoroughly racialised and gendered. the deployment of ‘equality’ discourse by imperialist states and occupying powers, to legitimate their status as democracies, has been critiqued by queer and feminist theorists as a powerful mode of governance deployed to obfuscate structural forms of oppression and domination, which are both racialised and gendered. for instance, homonationalism (as theorised by jasbir puar, aeyal gross and others[footnoteref:31]) and femonationalism (as theorised by sara farris[footnoteref:32]) are concepts developed by queer and feminist theorists which go beyond unveiling the ways in which equality discourse and the inclusion of gay, lesbian and trans rights are deployed to legitimise the representation of imperial and settler colonial states as genuinely democratic. these authors also decry the ways in which states wage wars, invade, and occupy foreign lands, on the specious and hypocritical basis that they aim to democratise and equalise sex and gender relations. at this juncture, it is imperative to note that the rise of right-wing islamist politics in gaza and within historic palestine cannot be ignored when theorising a queer, feminist politics of solidarity. what form should an anti-colonial feminist politics of solidarity take in the face of the subjugation of women and queers by reactionary political organisations? creating transnational feminist solidarity politics that avoids a lazy relativism when having these discussions in foreign contexts requires close collaboration with, and learning from, palestinian feminists and the many palestinian feminist organisations that have been a central part of the palestinian struggle. [31: see, e.g., jasbir puar, terrorist assemblages: homonationalism in queer times (durham, nc: duke university press, 2007); jasbir puar, “rethinking homonationlism” (2013) international journal of middle eastern studies 45, pp. 336-339, available at http://www.jasbirpuar.com/assets/puar_rethinking-homonationalism.pdf. for an excellent collection of essays on homonationalism, gay imperialism and related matters see the special issue “liabilities of queer anti-racist critique”, eds. stacy douglas, sarah lamble, and suhraiya jivraj, (2011) feminist legal studies 19(2). ] [32: sara r. farris, “femonationalism and the ‘regular’ army of labor called migrant women”, (2012) history of the present: a journal of critical history 2(2), available at https://www.academia.edu/4720783/femonationalism. ] the delegation of indigenous and women of colour feminists who visited israel/palestine in 2011 gives a very clear assessment of what is at stake, and the ways in which anti-colonial resistance is intimately connected to struggles for race, gender and sexual emancipation: as feminists, we deplore the israeli practice of “pink-washing,” the state’s use of ostensible support for gender and sexual equality to dress-up its occupation. in palestine, we consistently found evidence and analyses of a more substantive approach to an indivisible justice. we met the president and the leadership of the arab feminist union and several other women’s groups in nablus who spoke about the role and struggles of palestinian women on several fronts. we visited one of the oldest women’s empowerment centers in palestine, in’ash al-usra, and learned about various income-generating cultural projects. we also spoke with palestinian queers for bds, young organizers who frame the struggle for gender and sexual justice as part and parcel of a comprehensive framework for self-determination and liberation. feminist colleagues at birzeit university, an-najah university, and mada al-carmel spoke to us about the organic linkage of anti-colonial resistance with gender and sexual equality, as well as about the transformative role palestinian institutions of higher education play in these struggles.[footnoteref:33] [33: abunimah, op. cit. ] the authors of this special section argue for a feminist politics of solidarity that is truly emancipatory in its aspirations. the relationship between feminist struggles for freedom and occupation are nowhere more evident than in the violent political repression palestinian women faced at the hands of the military on 8 march this year, when demonstrating for international women’s day. women attempted to march past the infamous qalandia checkpoint, to emphasise the place of women in the liberation movement and to assert their right to enter the city of jerusalem freely. they were met with stun grenades and teargas, and 11 women were injured.[footnoteref:34] violence against women in the context of palestine, as many indigenous and women of colour have argued, cannot be separated from the realities of a highly militarised occupation. [34: “israeli forces attack west bank women’s day march”, alakhbar, 8 march 2014, http://english.al-akhbar.com/content/israeli-forces-attack-west-bank-womens-day-march (accessed 26 april 2014). ] _________________________________________________________________________________________________ 2 _________________________________________________________________________________________________ 1 /docprops/thumbnail.wmf f em in ist s @law v ol 4 , no 1 (20 1 4) _ __________________________ _ _ _ ___________________________ _ _ ___________________________ _ _ _ _________________ ___ ________ _ _ _ __________________________ _ _ _ _ _ _ _______________________ _ _ _ _ ________________________ 1 some r eflections on bds and feminist political solidarity brenna bhandar * we are not asking you for heroic action or to form freedom brigades. we are simply asking you not to be complicit in perpetuating the crimes of the israeli state. 1 a little over two years ago , on march 13, 2012, the un committee on the elimination of racial discrimination (cerd) made a series of findings in their observations on israel’s compliance with the international convention on the elimination of all forms of racial discri mination. significantly, they found that the state of israel’s policies towards palestinian and bedouin communities as regards land rights, citizenship, education and protection from racial and ethnic discrimination, violate several articles of the convent ion, including articles 3, 5 and 7. 2 article 3 condemns “racial segregation and apartheid.” the news travelled quickly through social and political networks of activists, lawyers working for human rights, and others, but seems to have been ignored by most * senior lecturer in the school of law at soas, university of london and a member of the centre for palestine studies. e mail bb 29 @ soa s.ac.u k . she has been a visiting lecturer in canada and south africa. her areas of research and teaching include property law, equity and trusts, indigenous land rights, post colonial and feminist legal t heory, multiculturalism and pluralism, critical legal theory, and critical race theory. in her current research project, she examines techniques of ownership and dispossession in settler colonial contexts. thanks to adam hanieh, alberto toscano and david lloyd for their helpful feedback on an earlier version of this piece. 1 ali abunimah, “after witnessing palestine’s apartheid, indigenous and women of color feminists endorse bds, 7 december 2011, http://electronicintifada.net/blogs/ali abunimah/after witnessing palestines apartheid indigenous and women color feminists (accessed 26 april 2014). 2 committee on the elimination of racial discrimination, consideration of reports submitted by states parties under article 9 of the convention: concluding observations of the cerd: israel , 80 th session, 13 february 9 march 2012, cerd/c/isa/co/14 16, available at http://www2.ohchr.org/english/bodies/cerd/docs/cerd.c.isr.co.14 16.pdf . see orna ben naftali, aeyal m. gross, and keren michaeli, “the illegality of the occupation regime: the fabric of law in the occupied palestinian territory” in a. ophir, m. givoni, s. hanafi , eds, the power of inclusive exclusion: anatomy of israeli rule in the occupie d palestinian territories (n ew y ork : zone books, 2009), pp. 31 88 at 49; the authors speculate that the israeli government’s actions in the west bank & gaza might well be in violation of article 7 of the rome statute, which criminalises apartheid and deems it a crime against humanity. pearman book review ___________________________________________________________________________ feminists@law vol 3, no 2 (2013) ___________________________________________________________________________ david wilson: mary ann cotton, britain’s first female serial killer waterside press, 2013, 978-1-904380-91-7, £19.95 joanne pearman[footnoteref:1]* [1: * phd student, university of kent, uk. j.pearman@kent.ac.uk.] the market for books dealing with true-crimes murder is somewhat congested. these books have significant popular appeal – a search on the uk amazon site returns in excess of 8,000 titles in the genre of ‘true crime’ alone, and the connoisseur can choose from any number of sub-genres, including that of historic crimes and murderers. into this market david wilson offers a biography of mary ann cotton whom he identifies as being “britain’s first female serial killer”. however, this is not a run of the mill ‘true crime’ book. wilson is an acknowledged expert in the field of serial killing and serial killers, with an excellent track record in producing books that are both academically rigorous and that have a wider public appeal,[footnoteref:2] and this one continues in that vein. it is notable that the book went straight to paperback with an attractively designed cover, suggesting that it is intended for the mass market. this is not to say that it is not of academic interest to serious historians concerned with murder cases of the 19th century. [2: see for example; wilson, david. 2009. a history of british serial killing. london: sphere.] the subject of this book is the case of mary ann cotton, hanged in 1873 for the murder of her stepson, charles edward cotton. mary ann cotton is thought to have killed a number of people in her care – husbands, children and step-children. the exact number of her victims is unknown, although it has been suggested that the total could be as high as 21. her method was that of arsenic poisoning, which as wilson notes, was the “poison of choice” for the typical victorian poisoner, as it was a readily available substance, and the symptoms of arsenic poisoning could be, and often were, mistaken for other ailments, such as gastric fever, cholera or typhoid. cotton is believed to have killed for convenience, for the disposal of relatives whose existence was likely to obstruct her, and for money in the form of the redemption of insurance policies taken out in the names of her victims. the case is not widely known in the 21st century, with wilson identifying only one biography dedicated to cotton pre-dating this one, although coincidentally, another was published in february 2012.[footnoteref:3] the two books are, however, very different. the webb and brown offering is typical of the true crime genre, giving the details of the crimes with little, if any analysis or comment. [3: webb, simon and brown, miranda. 2012. mary ann cotton, victorian serial killer. durham: langley press.] in addressing the case of mary ann cotton, wilson combines an historical examination of a victorian murder case with comparisons drawn from more recent criminological case studies. wilson pieces together the story of cotton and her career of murder by using contemporary victorian newspaper reports, official documents held at the national archives, and also the collected papers of dr thomas scattergood, held at the university of leeds. these last are a wonderful addition in that they give an extra dimension to that which has already been written about cotton and the case. in addition to reporting the facts of the case, wilson examines in some depth the issues raised by the criminal investigation, the development of the discipline of forensic science (assisted greatly by the scattergood papers), and the societal issues surrounding the case, and it is this that sets the book apart from others. the major part of the book is concerned with the history of the case – in the introduction wilson says that it is a “detective story”, dealing with the facts of the case, the victims and those who brought cotton to justice. the narrative is lively and engaging – it is, after all, a cracking story – and wilson does it justice. however, by providing criminological references within the text, the flow of the narrative is interrupted, such as where wilson makes comparison between cotton and beverley allitt (page 72). the links between the two women appear a little tenuous, in this case that both were nurses. he acknowledges that allitt is supposed to have killed due to munchausen’s by proxy, while cotton was not suspected of having any such psychological motivation. the reader is left asking therefore, why wilson brings it to our attention. other examples of these authorial asides are of some lengthy descriptions of other murder cases such as that of george joseph smith (page 123) and jack the ripper (page 165), and it is here that it is most apparent that this book may be intended for a non-specialist market that may not have direct knowledge of the cases and the issues that they raise. wilson’s previous works and those of other authors provide good reference points for these asides, but i feel that placing them within the main text does detract from the historical element of the book. having said this, i feel that the most successful part of the book is that which deals with the criminological study of the case, and in particular why it was that the case of mary ann cotton ‘disappeared’ from public view. cotton is identified as a serial killer as “she killed more than three people in a period of more than 30 days”, (page 19), and wilson uses the kelleher and kelleher typology[footnoteref:4] as a framework to help to understand cotton and her behaviour. wilson states that he believes that she was our first female serial killer as the culture in which she lived (victorian england) is recognisable to us as being similar to our own, and her behaviour is such that we might identify with it. he notes that the case was not a particular cause célèbre at the time, and that little has been written about her since, although she is still well-known in the geographical area in which she lived and committed most of her crimes. he puts forward a number of theories as to why this may have been the case, suggesting for example, that this might be because of her gender (although this consideration is disappointingly brief) – female serial killers being comparatively rare, both historically and today. in particular, using the contemporary newspaper accounts, he examines the ways in which victorian journalists found it difficult to “make sense” of cotton and her crimes, and suggests that because of this “conceptual impossibility”, she was commonly denied or ignored. wilson also suggests that cotton’s life became that of melodrama, allowing the victorian audience to “forgive her”, particularly as at the time of her arrest she was pregnant, and as her daughter was removed from her before her execution – motherhood, it is implied, facilitated the image of cotton as a wronged woman and contributed to her ‘disappearance’. this theory is well-founded, but i wonder, given that there was significant country-wide interest during the second half of the 19th century in women who killed children for profit, for example the near contemporary cases of margaret waters, jessie king, amelia dyer, and other notorious baby-farmers, whether it is entirely conclusive. [4: kelleher and kelleher divide female serial killers into categories in order to examine the cultural bias against female serial murderers; kelleher, d and kelleher, cl. 1998. murder most rare: the female serial killer. westport: praeger.] the issue of murderers making some financial gain from the insurance and death of infants had become a cause for concern of parliament in 1890, soon after the cotton case, echoing the anxiety regarding some murder cases involving so called ‘baby-farmers’. these led to a select committee and the examination of an infant protection bill which included in its terms of reference a consideration of the issue of the insurance of infants (although the subject of insurance was hardly mentioned in committee, and the bill did not make its way to the statute book). this demonstrates, i suggest, that the issues raised by the cotton killings, amongst others, were a source of contemporary anxiety, one that became a target for governmental intervention and thus that the implications of the case did not immediately disappear. wilson’s examination of cotton’s disappearance by a comparison of her case with that of jack the ripper does demonstrate her relative invisibility, although this may be as much because of the differing levels of violence and public sensationalism of the ripper cases, probably the most well-known of victorian murders, and the very private, domestic nature of cotton’s murders, rather than simply because of the gender of the perpetrator. i wonder if it could be argued that cotton had as much in common with the baby-farmers of the 19th century, in the guise of a cold-hearted serial killer. if this were to be so, she might not even be our ‘first’ female serial killer. an examination of the contemporary accounts of the notorious baby-farmers shows similar attention paid to the women at the centre of those cases who are described as being calm, cold and calculating. charlotte winsor, for example was described as being “devoid of feeling” following her conviction in 1866 for the murder of an infant in her care, while margaret waters, hanged in 1870, was popularly considered to be scheming and devious. these descriptions provide some correlation with the idea of these women as being psychopaths and/or serial killers in the same way that professor wilson ascribes to cotton and her behaviour. in line with his suggestion that one of his reasons for defining cotton as being our first female serial killer is that her behaviour was such that we might identify with it today, it could also be argued that baby-farming in some form or another still exists in our contemporary culture, for us to abhor and disapprove of the ways in which some people profit from the care of children at their expense. overall, this is a fascinating book, bringing to greater notice the case of a 19th century murderess. the historical research is illuminating – and in particular it is always exciting to hear about the discovery of a newly discovered primary source giving more colour and evidence to the conclusions that can be made by an author, and in this case more certainty regarding a ‘guilty’ verdict. the historical section is written in an engaging style, and the inclusion of references to other, more recent and more notorious serial killers, does give depth to the work and makes it accessible to the non-specialist reader. the consideration of the social context of the cotton case is very interesting, and the section on the criminological aspects of the case is, perhaps not surprisingly given wilson’s expertise and previous body of work, particularly valuable for the serious researcher. ___________________________________________________________________________ 6 __________________________________________________________________________ 5 antonia porter book review __________________________________________________________________________________ feminists@law vol 9, no 2 (2019) __________________________________________________________________________________ leigh goodmark, decriminalizing domestic violence: a balanced policy approach to intimate partner violence, university of california press, 2018. isbn 9780520295575. hardback £70, paperback £25, ebook £25. antonia porter[footnoteref:1]* [1: * esrc postdoctoral research fellow, kent law school, university of kent, uk. email a.d.porter-28@kent.ac.uk. ] goodmark is the first to acknowledge that by writing a book entitled, decriminalizing domestic violence she is being immediately provocative and should expect ‘some serious pushback’ (ix). writing from a distinctly us perspective, yet with resonances beyond the us, she starts by questioning the state’s primary response to domestic violence as crime. she is not, in fact, proposing full decriminalization, knowing this to be ‘unlikely’ and ‘probably unwise’ (142). instead what she proposes are alternative frames through which to view intimate partner abuse which, in turn, prompts her to suggest parallel modes of state reaction and, importantly, pre-emptive action. in the last 30 years, conceived through the law and order paradigm, the united states has reacted to domestic violence with characteristic penal zeal: mandatory arrests, no-drop prosecutions and (hyper) incarceration. in chapter one, goodmark briefly outlines the drawbacks of the state reliance on criminalization: the approach absolves the state from having to confront the underpinning structural arrangements that incubate the offending behaviour; it disproportionately and negatively impacts already marginalized women (‘women of color’, for example, are less likely to voluntarily engage the criminal justice system); incarceration reduces the life chances of the ex-prisoner and impacts on families, ‘deforming’ the lives of those connected to the prisoner (17); criminalization does little to prevent domestic violence and its huge costs still afford little protection to the intended beneficiaries. she argues that in making criminal justice the principal response, alternatives remain underdeveloped. given that most people subjected to abuse do not engage the police, policymakers’ priorities should be with the economic, public health, community and human rights avenues she proposes. given goodmark’s background as a family lawyer, the stance she takes in this book is unsurprising. for, once exposed to the broader ramifications of ongoing domestic violence and coercive control in families, it is difficult to see the violent incident that typifies the criminal trial as reducible to a seemingly isolated and individually situated level. the innovative gender-violence clinics that she runs at maryland carey law school – which employs her students to promote ‘restorative dialogue circles’ and sexual violence prevention curriculums in schools – indicate that goodmark is willing to ‘put her money where her mouth is’ as far as some of her proposals are concerned. the strength of this book is the clear chapter structure that signals the alternative frames and modes of analysis goodmark proposes. firstly, recognising the manifestation of violence as flowing from material and economic deprivation, she makes persuasive claims about how neoliberal policies, the global recession and austerity have magnified economic instability and exacerbated the underprivileged material conditions that breed intimate partner abuse. secondly, the public health approach introduces the reader to understanding domestic violence in terms of the social determinants – education, community, social support, physical environments, adequate nutrition, racism, and gender inequality – that contribute to the social stressors cited as causational. thirdly, goodmark would welcome community responses and organization as a means of holding perpetrators accountable (including through restorative justice) and as an effective way of shifting community norms that tolerate intimate partner violence. and fourthly, in light of the us’s woeful record on ratifying international human rights treaties aimed at ending violence against women, goodmark reflects on how integrating human rights into multi-sectoral contexts could provoke holistic solutions. the book is certainly broad in scope, yet, through each chapter’s lens, goodmark crystalizes the alternatives to the criminal legal response. in the final chapter, goodmark summarizes her vision of this multi-faceted approach in which funds are shifted away from courts, police and prosecutors and re-directed, inter alia, into programmatic controls in communities and ngos. guided by ‘feminist first principles’ (154), goodmark is clear that survivors should be consulted and their needs fore-fronted. thankfully, goodmark is also realistic that criminal justice still has a part to play (in ameliorated form) but she considers its part ancillary and reserved for the habitual or serious offender. though goodmark’s aims and ambitions are laudable, for this reader, serious questions remain about meting out community justice in the area of domestic abuse. goodmark herself draws attention to the safety concerns regarding restorative justice in relation to intimate partner violence not least because ‘at this point’ such practices are ‘based largely on ideology and conjecture, rather than data’ (97) with few programmes being available for evaluation. given the huge potential for restorative justice in these circumstances to perpetuate a perpetrator’s manipulative control over their (ex)partner, the appropriateness of such intervention remains highly questionable until further research is undertaken; albeit goodmark infers that fledgling studies have been encouraging. the reservations held by this, ostensibly, pre-disposed and sympathetic reader, highlight the extent to which the crime control imperative has become hegemonic, hindering our visions for transformative modes of analysis. goodmark’s brave and undoubtedly controversial provocation must be commended for its endeavour but, if her proposals to engage communities are to enjoy any degree of implementation, we must do more to empirically test, ground and evaluate their potential. __________________________________________________________________________________ 2 __________________________________________________________________________________ 1 darian-smith book discussion: murder, medicine and motherhood _____________________________________________________________________________________ feminists@law vol 3, no 2 (2013) _____________________________________________________________________________________ review of emma cunliffe, murder, medicine and motherhood. oxford: hart (2011) eve darian-smith[footnoteref:1]* [1: * professor and chair, global and international studies, university of california santa barbara, usa. darian@global.ucsb.edu ] there are many things that can be said about emma cunliffe’s remarkable new book murder, medicine and motherhood. for starters, the book has been the subject of numerous mainstream news articles, blogs, and media venues – an achievement few scholars can claim. moreover, in the course of media attention, cunliffe has bravely spoken out on behalf of a person she argues was falsely sentenced to life behind bars. however, beyond these real-life engagements, i view one of the book’s central scholarly achievements to be its superb methodological contribution to socio-legal research. murder, medicine and motherhood explores the legal prosecution of mothers for the unexpected death of their infant(s). the unexpected death of a child presents what cunliffe refers to as a “telling instance” in which society demands answers for what are often irresolvable and unexplained events. the central issue the author interrogates in the context of infant death is the construction of criminal responsibility – and specifically a mother’s criminal responsibility – in contemporary society, and what this construction reveals both about the cultural expectations of mothers and the truth-finding claims of the legal system. unexplained infant death has always evoked highly emotional responses from both state officials and the general public, and typically places the parents of a dead child under intense social and legal scrutiny. perhaps kathleen folbigg’s case is one of the most contentious of such incidents in recent decades. jailed for 30 years for allegedly killing her four children over the course of a decade, folbigg was condemned in the newspapers for being an “evil” and “unfit” mother, incapable of the normal levels of love a mother should have for her child. in addition to being openly harangued by the australian public and media, she was formally condemned by the court system which held there was “no question” regarding her responsibility for the deaths of her children. cunliffe pivots her examination of sudden infant death on the folbigg case. taking an historical perspective, the author notes that other instances of unexplained death among siblings prior to the folbigg case had resulted in the mother’s acquittal based on the court’s unwillingness to accept circumstantial evidence as the basis for homicide. however, in the folbigg case the presumption of a mother’s innocence in the absence of material proof was rejected in favor of circumstantial facts supported by scientific literature and expert medical testimony. cunliffe explores the shift of legal logic and scientific knowledge that resulted, according to the author, in the wrongful determination that kathleen folbigg was guilty. sudden infant death syndrome (sids) (first discussed in 1949 but not formally defined until 1969) has in the past been viewed with sympathy by medical and court practitioners, reflecting prevailing attitudes at the time that the death of a child was a momentous tragedy for which a presumed loving mother could not be held to blame. however, as cunliffe outlines, since the mid-1990s there has been a shift in how sudden infant death has been received. this was the result of the growing but inconclusive knowledge about sids coupled with a widespread educational campaign urging parents to put babies on their back to sleep, which did result in reducing infant mortalities throughout the 1990s. these inroads into reducing infant deaths also heightened pressure on paediatric forensic pathologists to produce better autopsy protocols and investigations into the increasingly rare death of an infant. but perhaps the most important single factor to account for the shift in medical attitudes about sids was the case of waneta hoyt. hoyt was the mother of five children who had all inexplicably died and whose case had been discussed in the medical literature as one of familial sids. against the presumption of a mother’s innocence, in 1994 hoyt confessed to killing her five children. this confession undermined medical claims that one family could suffer multiple instances of sids, and heightened suspicions about subsequent cases that made such a claim. as cunliffe argues, “the spectre of covert homicide haunted the criminological and scientific literature of the midto late 1990s… after hoyt’s conviction, the desire to give mothers the benefit of the doubt in the absence of positive evidence was marginalized within the medical literature almost…to the point of disappearing” (page 37). it is in against this context of shifting medical knowledge and the profession’s proclivity to take a harder look at sids, argues cunliffe, that kathleen folbigg’s case must be read. so what is so special about cunliffe’s methodological approach? my quick response is that the author uses an extremely wide range of empirical data, historicizes that data, and interprets it through an elegantly intertwined social and legal theoretical lens. cunliffe’s obvious concern to be even-handed in her analysis plays out in her clear presentation of complex medical literature relating to paediatric forensic pathology, as well as detailed examination of expert testimony, long legal judgments, and court transcripts. theorists such as marx, foucault, dorothy roberts, sheila jasanoff, as well as more obvious socio-legal scholars such as david garland and susan silbey, sharpen and deepen the overall discussion. yet cunliffe does not confine herself to the obvious legal arenas of court transcripts, expert testimony and legal judgments. in the second part of the book, which closely explores the folbigg case, cunliffe demonstrates great intellectual agility in her use of a multi-method approach. she explores the shifting social and cultural assumptions and ideologies about motherhood that framed the legal process. she then goes on to interpret kathleen folbigg’s emotionally charged personal narratives in diaries which were used by the prosecution as evidence of her guilt. here cunliffe shows immense sensitivity to the material and indicates that she is well versed in interpretative theories of narrative and subjectivity. yet perhaps the most striking example of a scholar going beyond the normal parameters of socio-legal inquiry is evident in chapter 8. in this penultimate chapter, the author examines and compares mainstream print media of the folbigg trial and compares various sources of print media with the trial transcript. as cunliffe notes, what is interesting is the “editorial and journalist choices made on a daily basis about what to report and how prominently to report it” (page 191), and how these choices in turn informed public opinion about the criminal justice system and the specifics of the case itself. in tables and discussion, the author underscores her deep empirical engagement with an enormous body of data. sociologists working in text and discourse analysis should take note! murder, medicine and motherhood presents an extremely rich, nuanced and interesting story about unexpected infant death precisely because of the author’s multi-method approach. historically informed, theoretically provocative, accessible and clearly written, the book brings the characters involved to life with grace and empathy, despite the tragedy and horror of events. the book also shows how the strategic use of legal language, expert testimony, scientific literature, and media coverage can distort courtroom proceedings in ways that may not be self-evident or foreseeable. in today’s socially conservative environment, cultural expectations about how mothers should act distort the capacity of courts to reveal the actual facts. the disturbing realization of the interaction between ideology and conceptions of justice that we see play out in the context of infant death raises questions about the entire criminal justice system, and underscores the significance of murder, medicine and motherhood to a wide swathe of socio-legal scholars. _____________________________________________________________________________________ 2 _____________________________________________________________________________________ 1 davies persons, property, and community __________________________________________________________________________________ feminists@law vol 2, no 2 (2012) persons, property, and community margaret davies[footnoteref:1]* [1: * professor of law, flinders university. margaret.davies@flinders.edu.au. this article is an edited version of a leverhulme public lecture delivered at the university of kent on 18 january, 2012. my thanks go to the leverhulme trust for funding my visit to the uk, to the university of kent for organising the lecture and the kent law school, in particular the centre for law, gender and sexuality, for hosting my visit. ] 1. introduction we use the terms ‘persons’ and ‘property’ in our everyday lives quite happily, without needing to give them a technical meaning. on the whole, we seem to know what they mean and how to use them. lawyers also use these terms routinely and in the quite ordinary course of events. like many legal concepts, however, they suffer from much ambiguity: both the objects to which they refer and their underlying concepts are uncertain and the subject of frequent political controversy. indeed, in both cases, it is doubtful whether an ‘underlying legal concept’ even exists, such is the difficulty of defining them clearly. the problem is amplified because the everyday usages of the terms ‘persons’ and ‘property’, are sometimes at odds with legal definitions, and in this sense, these terms are no different to many others. having said that, law is embedded in social practice and the distinction between the legal and the non-legal is a convenient fiction maintained by law. in consequence, there is often both cross-fertilisation of ‘legal’ and ‘everyday’ or social meanings, as well as a certain productive tension between them. i wish to do three things in this paper. first, i wish briefly to introduce some of the difficulties with the concepts of persons and property, what they refer to, and how they are used. second, i will explain what i see as the relationship between these two ideas – how they are supposed to be diametrically opposed, and how they are in fact inextricably linked. up to this point i will be selecting from and summarising a mountainous literature on the topic. the third and more substantial part of my paper will take the matter in a new direction. here i will try to capture new ways of thinking about property which in some ways loosen the property-person nexus, without breaking it altogether. in essence, these new approaches introduce values associated with the community, the environment, and our material futures into our thinking. before commencing, i should point out that there is very little that is unquestionable or fixed in this analysis. marilyn strathern says that ‘anthropologists use relationships to uncover relationships’ (2005: vii). it is also the case that if anything can be said with certainty about my topic it is that the property-person thematic is entirely about layers and layers of highly dynamic relationships. these relationships implicate people, communities, ideas, politics, and the physical world. they are intrinsically impossible to pin down or conceptualise in their entirety, so my aim is simply to draw out a few significant threads. persons to begin then, what is a person? the everyday use of the term simply points to biological ‘human beings’ or what lawyers call ‘natural persons’. in an everyday setting we do not ordinarily have trouble using the word ‘person’ even if we are acutely aware that the biological human being is only constituted as a social person by a complex web of norms, values, and practices. lawyers have more trouble with the notion of person, as it is usually seen as an abstract term or container which may be filled with ontologically quite variable contents. in classical theatre ‘persona’ was the mask worn by an actor to denote the character they assumed in the play: artifice or fiction is the key here and characterises the predominant theory of the legal person (naffine 2003: 352) which sees it as simply an empty legal form – each legal person, human or not, is as artificial to law as the next because the person is simply any entity that bears a right or duty of any sort. the corporation – entirely a construction of law – is a legal person, as are certain office bearers such as ministers of the crown who, as ‘corporations sole’, may have dual or even multiple legal status as artificial legal persons and human beings. on the so-called ‘natural’ side, human beings precede and exceed their ‘legal’ status because, unlike corporations, they are not entirely defined by law. nonetheless, many human beings have limited status as legal persons on account of their (young) age, their mental capacity, their citizenship, their criminal record, and, in the past, their gender, heritage, and race. enslaved human beings had few or no rights, and were therefore not persons (but rather property). richard tur calls the person a ‘cluster concept’, adding that ‘it is conceivable that two entities, both of which are legal persons, might have no rights and duties in common at all’ (tur, 1987: 122).a ‘persona’ is a mask (image by gryffindor: creative commons attribution-share alike 3.0 license, wikimedia commons) it is partly for this reason that law has been able to find so many ways to discriminate against women, sexual and religious minorities, foreigners, and the unpropertied. legal personality is simply shaped to whatever form is desired – whether this means an inability to vote, to own property, to set up business, to practice a profession, to marry, enter into a contract, or whatever. legal rights vary from one person to the next, and there would be absolutely no technical difficulty in attributing some limited legal personality to animals, trees, or ecosystems as long as they had some guardian to act on their behalf, as many humans do. there is no essential ‘person’ underlying the legal concept: it is simply an ‘empty slot’ (tur 1987: 121). however, as ngaire naffine makes very clear in her writings on the subject, the law is not a mathematical system, and this formal understanding of the legal person is both supplemented and undermined by more human-centred notions of the person. in effect, when it comes to human beings, law cannot maintain a purely formal approach – decisions have to be made, for instance, about the beginning and end of lives, about the status of the foetus, the loss of rights upon death, and about mental capacity – essentially about what the human is who has rights. there is often a tendency to naturalise the person by asking what are the real or inherent characteristics of a human being – we are often said to be essentially rational, for instance, or essentially sentient. yet as soon as we move beyond purely biological descriptions to socially-loaded values, this so-called natural person is as much of an artifice as the legal person: the distinctions between human and animal, human and object, and between humans that exist in the present and those who have existed or will exist, are all constructed within political and cultural frames. lines are drawn and characteristics are attributed. in its efforts to reflect this so-called natural human with its inalienable rights, the legal person becomes a battleground for vastly different political and religious views about the human body, the human being, and the nature of human rights. some of the most bitter legal contests occur in relation to the beginnings and end of human life, in questions concerning the status of the foetus or those in a persistent vegetative state (hamilton, 2009: 3-10). but there are a multitude of questions which might be asked about the legal person which are inflected with our cultural narratives about natural persons – why, for instance, must legal persons be given a sex? why do we not give animals rights (francione 2008)? what rights are most significant to persons? these controversies go to the heart of our self-perception as human beings – they are essentially about who we are. property when we think about property the situation is no clearer. in fact, it is probably even more complex. once again, property is a term in everyday use which appears relatively straightforward. once again, lawyers often use the term in a quite different way – not to mean things which are owned, but rather relationships between persons which distribute rights regarding things. and once again, there can be a startling lack of legal clarity over both the things which can be the subject of property rights, and what property means in essence. property theorist kevin gray has referred to ‘the remarkably incoherent and unanalytical way in which the term “property” is generally bandied about by common lawyers’. (2007: 170). around 10 years ago, the high court of australia, [footnoteref:2] quoting gray, said ‘the ultimate fact about property is that it does not really exist: it is mere illusion’ (cf gray 1991: 252). [2: yanner v eaton (1999) 201 clr 351-413] is property an illusion? (image by gvf: creative commons attribution-share alike 3.0 license, wikimedia commons) like the person, property can be regarded as an ‘empty slot’ into which all sorts of rights can be fitted. the law simply identifies and shapes property – always having some conceptual or physical thing in mind, but varying the ‘property’ or the rights according to each case. to give a simple example, say i own three things, a book, a quantity of prescription medication, and a rare object of national significance. i can sell the book but – if the author has died within the last 70 years – i am not permitted to reproduce it for further publication; i can destroy the drugs but not sell them; and i can sell and export the heritage item but only with a license. my rights and duties in relation to each object are quite different, even though i have property in all three. this is often referred to as the ‘bundle of rights’ view of property (see hohfeld 1913 and 1917; honore 1961; grey 1980): property is a bundle of different rights for different types of objects. renting a house gives a person the right to possession of it, while buying it involves the acquisition of more extensive rights though not, if there is a current lease over the house, to actual possession (until the lease runs out). importantly though, property does normally involve a right to exclude others from exercising the right in question (possession, re-sale, and so forth) and in this sense is essentially about power over other people – a kind of private sovereignty as morris cohen argued (1927: 13). enduring questions about property distributions concern the ability of people to live a secure and dignified life, but they also concern distributions of power and bring into focus everyday crossovers of private power into the political sphere. as with the person, there are huge controversies over what counts as property and what property rights actually entail. as i will explain, some of these controversies are at their most intense when they concern the human body, but because of the economic stakes many other forms of property are hotly contested – to take just one example, several tobacco companies recently (and unsuccessfully) contested australian legislation which enforces plain packaging for cigarettes from december 2012.[footnoteref:3] the companies argued that the legislation is unconstitutional because it acquires their property without compensation by removing their ability to use their trademarks. the argument was rejected by the high court, but the case illustrates the reach and power of the concept of property. [3: see eg. philip morris v commonwealth of australia [2012] hca trans 46 (27 february 2012) ] this example also illustrates the general point that property law represents a settlement or compromise between community and public interests and individual interests (holder and flessas 2008; alexander and peñalver 2009). it manages the boundary between what can be appropriated and used by private individuals and what cannot be owned or used. some physical things that are traditionally protected from private exploitation include beaches, public parks, outer space, oceans beyond the territorial limit, and antarctica. but there are also less tangible resources which are also seen as needing protection for the public good – these include built heritage, the atmosphere, and parts of the intellectual domain – it is in the public interest, for example, that copyright runs out after a certain time and works are freely available – the works of both virginia woolf and james joyce, among others, were released into the public domain on january 1, 2012, 70 years after the end of the year in which they died, 1941. increasingly, the ecosystem and even highly abstract resources like the global economy and its financial system (milun 2010) are also seen as needing protection from private exploitation. in spite of the role of law in creating and maintaining a distribution of property between the community and the individual, these interests remain in perpetual tension and sometimes open conflict. there has, for instance, been much debate over shopping precincts and town centres run by private consortiums, and the extent to which these corporations should be able to control people’s access to such spaces (gray and gray 1999; bottomley 2007; layard 2010). although private property, such areas may be important community spaces as well, containing libraries, banks, and other necessary resources. this can lead to controversy over whether the owners should have the right to exclude people without justification as would normally be the case under the law of trespass. or should the essentially public nature of the space mean that it is treated differently from individual business premises and homes? is it right that a person’s freedom of movement can be quite severely curtailed by private organisations? i will come back to this point towards the end of my paper, because the common-private tension is i think, one of the most significant issues facing property law today. 2. persons and property as i have explained, there are some similarities in the way that persons and property work in everyday language and in the law. these similarities are to do with the fact that there is no central concept of either persons or property, they have long been regarded as legal fictions and highly artificial, there is controversy over their limits and application, and we see highly political debates with very high stakes over what they mean. property and the person are effects not the causes of a multitude of legal relations. at the same time, property and persons struggle to remain in the abstract and fictional world of law – they are in a dynamic relationship with the material world of human beings and objects; persons and property are constantly being invested with more everyday meanings which may depart quite radically from law. in all of this they are perhaps typical of legal concepts which can rarely be separated from what might broadly be called ‘the real’. bringing property and the person together conceptually does, however, create a difference from other legal concepts because here we see the basis of western liberalism and capitalism. the connection between persons and property was summarised very succinctly by cultural theorist john frow when he said that ‘the person is at once the opposite of the commodity form and its condition of existence’ (frow 1997: 152). persons v property the first half of frow’s statement, that the person is the opposite of the commodity form, is usually connected with modern antipathy towards slavery. persons are subjects, and property or commodities are objects. treating a person as an object would infringe immanuel kant’s imperative that persons should be treated as ends in themselves, not as a means to an end (kant 1988: 273). and it would also contradict john locke’s earlier statement that ‘every man has a property in his own person’ which ‘nobody has any right to but himself’ (locke 1988: 287). locke used masculine pronouns like all writers of the 17th century, though i think in this case the exclusion of women was intended. i will come back to locke and self-ownership shortly, but the point for now is that one person cannot own another. the law reflects this moral objective in a variety of ways, for instance in the well known refusal to order specific performance for contracts for labour or personal services – you can’t legally force a person to undertake personal services which they have contracted to perform, though you may of course be able to prevent them from offering their services to your competitor or get damages for their failure to perform their contract. the prohibition on ownership of persons as human beings is one area where property law has trodden only very reluctantly and with many qualifications: it is clearly an ethical pandora’s box to suggest that any physical or other attribute of a human being can be owned. nonetheless, the issue has frequently arisen in relation to body parts and corpses, and more recently in relation to images of persons and human dna (see generally davies and naffine 2001). there is now a huge literature and a number of court cases about the property status of the human body as a dead, dismembered, or conceptual entity (hardcastle 2007). and in this field there are few general principles which can be stated the cases are on their facts usually very different. two comments are usually made in order for a physical body part to be regarded as property it must first be separated from a living human being, and second it must be transformed in some way by the work and skill of the person claiming ownership. the thing must be different from a human being and changed from its natural state. so, for instance, a human organ which is removed from the body will probably not be regarded as anyone’s property without some alteration. but if tissue is turned into something else, such as the palaces sculpture made by gina czarnecki from children’s voluntarily donated milk teeth (see http://palaces.org.uk), it can be owned. similarly, one presumes there would be no problem with the breast milk ice cream which has reportedly been sold by a restaurant in covent garden.[footnoteref:4] [4: ‘breast milk ice-cream goes on sale in covent garden’ bbc, 24 february 2011 http://www.bbc.co.uk/news/uk-england-london-12569011 (viewed 6 march 2012)] milk teeth and breast milk are, like hair, fingernails, and waste (mchale 2000), essentially renewable bodily products and in some circumstances may become property (chambers 2001: 20-24). other renewable bodily products such as human gametes are also often donated, but any monetary reward is normally regarded as compensation for time and effort, rather than part of a commercial arrangement (skene 2009). the refusal of law to countenance ownership of unchanged human tissue can lead to perverse outcomes, especially where the person from whom tissue is removed is not aware that it has been retained or used. this was the situation of both henrietta lacks and john moore, americans who had tissue removed from their bodies and immortalised as highly lucrative cell-lines used in medical research. lack’s cells were removed from her tumour before she died in 1951 and were the first to be reproduced in an immortal cell line (see generally skloot 2010). they were used in developing the polio vaccine and have been reproduced and used globally in research ever since. public benefits, as well as large profits, were the result. lack’s family were themselves unable to afford health insurance, and were unaware of the cell line for many years. john moore also had cells taken in the course of treatment. a patent was granted over the resulting cell line, and his argument that his property had in effect been stolen from him was rejected by a court.[footnoteref:5] the irony of both cases is that a person cannot own their own tissue, but once it is removed and altered, someone else can own it. the public may ultimately benefit, but so too do pharmaceutical and medical research companies. [5: moore v regents of the university of california (1990) 793 p 2d 479. ] cell culture public domain image, wikimedia commons it scarcely needs mentioning, as these examples illustrate, that the legally enforced dualism between persons and property is extensively corrupted in practice. humanity often fails in its efforts to separate persons and property, and to value subjects over objects. not only are subjects frequently commodified, but objects are personified and valued well over the least powerful humans. this is not always something we do individually, but is to be seen in cultural and practical slippage between persons and property. in addition to the examples mentioned, we can see this crossing over between persons and property in a variety of different ways. first, global trafficking networks illegally commodify people as manual labourers, sex workers, or adoptive children and the black market in organs is extensive (budiani-saberi and delmonico 2008). slavery is illegal, but any claim that it has been abolished is premature (rassam 1999). second, we are also accustomed to commodifying our own bodies, our own capabilities, achievements, and our personalities, as well as those of others. third, there are objects, such as human dna and body parts which we may see as personal, but which are also capable of being objectified. and finally, we frequently and quite legitimately invest objects with some personal, cultural, national or spiritual significance. the object is more than simply a thing, but becomes rather a thing of special meaning and is perhaps even invested with its own subjectivity (see generally davies 2007: 77-81). part of the complexity here is that the terminology of property is both compelling and dynamic – it is easy to imagine ownership of all types of things, and the semantic shift from having power over something to owning it is relatively slight. discourse around property is highly adaptable. in a recent south australian case a man was charged with abducting his own children. in his defence, he claimed that the family court order giving custody to his ex partner was invalid because he had a prior ‘copyright’ claim. he stated for a start the children are copyrighted, which means they are dramatic work produced by using skill . . . the mother then entrusted me further than that, having me put my surname on them as a trademark which gives me the ultimate say what’s going on with them, until they turned 18 . . .. everything that has been happening with them is an unlawful breach of that . . .[footnoteref:6] [6: r v breur [2011] sadc 184, para 44.] although this claim is, as the judge said, ‘plainly absurd’, using the language of property in such a context is in fact imaginable or thinkable. after all, the south australian criminal legislation does refer specifically to the ‘right to possession of a child’ which itself sails close to conceptualising the child in proprietary terms.[footnoteref:7] [7: criminal law consolidation act 1935, s80(2).] in sum, although it broadly remains true that the person is the opposite of the commodity form, we can see that people and things are not entirely separate, but rather circulate in a vast economy of commodified persons and personified objects. this looks like an impasse or contradiction which needs clearing up, but it is in fact explained by the relational nature of persons and property – that they are constituted within social, legal and symbolic networks. persons and property this leads me to the second half of frow’s statement, that the person is the condition of existence for the commodity or property form, a claim which has several quite different meanings. first, to state the obvious, persons are the precondition for property because the existence of property implies a subject who holds the legal rights and responsibilities of ownership. second, there is an etymological connection between the word property and an idea of the self – the word property is related to terms such as proper, propriety, and appropriate. this is more evident in other languages than it is in english, but one archaic sense of the term proper designates something connected to the self – just as we might refer now to a person as their ‘own woman’ meaning that she is independent, or say that she has her own objectives, in the past the term proper might have been used in such contexts. both the terms ‘own’ and ‘proper’ refer to that which is particular to a person, and are connected to property as things which we own. the semantic connections are fascinating and extensive – again to quote gray, a ‘powerful network of nuances’ (2010: 194; see also davies 2007: 25-27), but there is not time to explore it fully. a third connection between property and the person comes from philosophy.[footnoteref:8] best known in this context is john locke who, as i have said, stated that ‘every man has a property in his own person’. this claim negates the possibility of slavery, but it also connects the person with property by stating that we own ourselves. jw harris has called this a ‘spectacular non sequitur’ since it clearly does not follow from the fact that we are not owned by others that we therefore own ourselves (harris 1996: 71). the idea presumes that everything must be either persons or property and implies that we are both subject and object to ourselves. regardless of these logical difficulties, the image of the person as a self-owner – or the ‘liberal notion of possessive individualism’ as macpherson termed it (1964) – is profoundly embedded in liberal thought – it is the image of self-determination, of having basic control and power over ourselves, and only surrendering part of this power in exchange for other benefits, such as the protection of the state, or remunerated employment. [8: although hegel’s philosophy of right also constructs a significant narrative about the connection between property and the person, i do not deal with it here. see generally davies 2007: 96-107. ] this is a deeply individualistic notion of the person – it involves the idea that the person is quintessentially an owner; that we do actually own ourselves as well as a selection of the things around us; and that the person is, metaphorically at least, what jennifer nedelsky called a ‘bounded self’ or a person defined by their boundaries and self-containment (nedelsky 1990). we are all self contained and autonomous. such an image of the self may appear to be available to both women and men, and regardless of race or heritage. however, it is a metaphor of the self which has historically been very strongly associated with masculine and white identity. women have been more likely to be seen as unbounded: as relational selves and carers (nedelsky 1990: 170; naffine 1998), while aboriginal people in australia were typically regarded as non-owners and not the subject of rights. in the context of the united states, cheryl harris has argued that whiteness itself is a kind of self-owned property, and that this is a symbolic effect of slavery, which divided people along racial lines of self-owner and chattel (1993). although the formal dehumanisation has now been remedied, when it comes to symbolic relations, these images of the person are still quite strong: it remains the white male who is typified as the normative owner, self-owner, and subject of rights, while others occupy the position of objects and can struggle to be visible as rights bearers. it is no surprise that this symbolism about who is an owner is reflected in reality, where gendered and racial distributions of property are well known. beverley skeggs argues that possessive individualism remains strong in popular understandings of personal identity. we are formed as social beings by the acquisition of cultural property. as she says, . . . some activities, practices and dispositions can enhance the overall value of personhood: an example of which would be the cultural education of the middle class child who is taken to galleries, museums, ballet, music lessons, etc, activities which are all assumed to be morally ‘good’ for the person but which will also have an exchange value in later life as the cultural capital necessary for employability and social networking. (2004: 75) we can see from this that the reverse of frow’s statement also rings true, that is, not only is the person the condition of existence of property, but property is the condition of existence of the form of the person. we become defined in part by those cultural attributes which we have acquired as a kind of personal property or value. locke’s statement about self-ownership is not only the basis for this extensive and very problematic western liberal notion of selfhood, it is also the basis for owning other things, besides ourselves. as is well known, locke goes on to argue that since we own ourselves and our labour, whenever we work on something we transform it so that it is connected to us – locke says that if we take something out of the state of nature and change it, we have a natural right to it. in the contemporary context this might serve as a partial justification for copyright, patents, and other forms of intellectual property which are the result of creativity. it might also serve as justification for our labour-based earnings and anything we have purchased with those earnings. but it is slim if any justification for inherited property, or profits based on the labour of others, or investment profits. locke’s natural law justification served for an era of colonial expansion where the labours of indigenous peoples went unrecognised and their connection to land was seen as arbitrary, especially where they lived relatively mobile lives (arneil 1994 and 1996; tully 1993; parekh 1995). in consequence, appropriating the land by fencing and agriculture was seen as a legitimate taking of terra nullius, or land belonging to no-one. ironically, non-indigenous people are now beginning to understand the depths of indigenous connections with land, and the limitations of the more exploitative relationship toward land which has characterised most of western history (see watson 1997). we can see therefore that there are several powerful connections in western language and philosophy between property and the person. most significantly, we are often said to be self-owners in a social and cultural sense, even if there is no legal basis for this; property acts as a kind of metaphor for an independent person, the bounded self; and property ownership is sometimes said to be justified by the natural right that people have to their own labour and products. the person-property relation operates not only to connect persons to things, but also to define the self, to justify ownership, to delineate private from public, and to organise society. 3. law moving on as i indicated at the outset, property has long been understood by legal theorists to be socially constructed and based on the relationships between people. however, because of the philosophical ties to individualism, a pervasive view of property has emphasised the priority of individual rights over broader cultural and community interests. this view of property crosses both legal and everyday uses, and is in some ways encouraged by the adaptability of property discourse which i mentioned earlier. for some time, however, there has been what might optimistically be called the beginnings of a paradigm shift in the meanings and extent of property and its ties to individualism and liberalism. you would not perhaps instinctively or even reflectively think this, looking around at the excesses of modern capitalism, the culture of accumulation, the detachment of individuals from physical communities, the extremes of individual wealth, and the disproportionate value and political power which we still allow to people who have the cultural capital of their race, gender and ownership status. perhaps what looks to be a paradigm shift is in fact only an eleventh-hour reaction to these excesses. nonetheless, i think it is possible to discern in law, in scholarship, and in many forms of activism, some pressures and changes to the idea of the person, to the idea of property, and the ways in which they relate. increasingly, we see the values of community, environment, and the future reflected in this discourse and indeed in the law. it is true that these are very imperfect and piecemeal changes, which do not begin to address fundamental matters such as the continuing dispossession of indigenous peoples around the world or the extreme inequality which ownership regimes produce. it will moreover doubtless take decades or longer for these to solidify into any substantial change in the form of liberal property regimes, but i think such a change is possible. to begin with the person, the ideology of the liberal bounded and autonomous self has been challenged by a more relational idea of the person. certainly this is true in legal scholarship, where feminist commentators have for some decades criticised and reconstructed notions of the person which are based solely on the model of the rational self-determining individual. as moira gatens, for instance, says – ‘for an individual to endure requires exchange, struggle, and co-operation with other individuals’ (quoted in strathern 2005: 30). and in the context of property, jennifer nedelsky, argued some years ago that the boundary metaphor produces an impoverished and politically inappropriate notion of the person, a person who is separated from their communities and which suppresses the role of relationships in the formation of the self. she argued that this person should be rethought in favour of a connected conception of the person which would not, however, be defined by the traditional gender stereotypes (nedelsky 1990; see also nedelsky 2011). this does not necessarily mean eliminating the values of rationality and autonomy, but simply putting them into a balance with relationality and context. when we look at property, we also see a heightened concern for the relationships within which property is situated. this is evidenced by a variety of debates focused on the idea of the commons. promotion of commonly owned resources has in the past been hampered by the orthodoxy of the ‘tragedy of the commons’ that is, the notion that such resources will over time necessarily be degraded and wasted, because of the incentives for an individual to overuse the resource. however, in 2009 elinor ostrom was awarded the nobel memorial prize in economics, in recognition of her work on the commons. ostrom’s work, undertaken in collaboration with many others, challenged the ‘tragedy of the commons’ narrative, by providing a more nuanced account which showed that well managed common resources such as fisheries, or commonly-held forests and pastures, are not necessarily wasted over time (see eg ostrom et al 1999). under certain conditions, including extensive co-operation among users and the development of elaborate management principles, such resources can be more efficiently managed than private resources (ostrom 2010). ostrom’s award is i think a symptom of the current awareness of the importance of shared resources for social well-being. numerous property law scholars over the past decade have turned their attention to urban, rural and global commons, to the public intellectual domain, and to the environment (holder and flessas 2008; alexander and peñalver 2009; milun 2010). this interest has resulted in contemporary notions of property in which individual rights and private sphere interests are only part of a more complex picture where the interests of a multitude of communities as well as social obligations and environmental imperatives are part of the discourse relating to all types of resource. the resources in question are many, ranging from scientific knowledge, to rights of way over land, to heritage, and the internet. just to give one of many possible examples, we can see this commitment to forms of community-oriented property in the construction of alternative licenses which are now available for distribution of intellectual property – most of the images used in this paper for instance, could be the subject of copyright (meaning there would be a need to seek permission and possibly pay a fee to use them). however, their owners have released them into the public domain or published them under some form of creative commons license which bypasses copyright law – they are freely available, usually with attribution. the internet provides many examples of conflict between open and proprietorial modes: wikipedia, for instance, recently blacked out its english-language website in protest at proposed us legislation for strengthening copyright enforcement which they say poses a threat to the free and open internet.[footnoteref:9] [9: see http://wikimediafoundation.org/wiki/english_wikipedia_anti-sopa_blackout ] property and the commons (image by f lamiot: creative commons attribution-share alike 3.0 license. wikimedia commons) this re-valuing of community is not confined to activism, symbolism, or the internet. law itself has arguably been moving in this direction for some decades, as environmental, heritage, and planning regulations have been strengthened. layers of regulation can be regarded as subtractions from an otherwise fixed notion of property, as interference by the state in our private things and selves (see eg gray 2007). however, it is more productive and arguably more accurate to regard such regulation as evidence of an alternative conception of property which is intrinsic to law. property law is not only about extensive, durable and exclusive individual ownership as the basis for social order, but also incorporates more fragile, contextual, and limited use-rights which are highly regulated, held at the discretion of the state and which can be withdrawn for social and environmental purposes. two decades ago, eric freyfogle predicted that water law – which is more about use of a scarce resource than ownership of it – was the leading edge of property. he said, if property law does develop like water law, it will increasingly exist as a collection of use-rights, rights defined in specific contexts and in terms of similar rights held by other people. property use entitlements will be phrased in terms of responsibilities and accommodations rather than rights and autonomy. (1989: 1531) echoing this thought, but describing it as reality some ten years later, kevin gray and susan francis gray wrote in relation to land law that it ‘may well denote no more than a temporarily licensed form of utility or user privilege which may be extended, varied, or withdrawn at the sole discretion of the state’ (quoted in underkuffler 2003: 3). as gray says, ‘property ... is organic, interactive, socially defined, normatively resilient, and extremely relative’ (2010: 192-193). even when it is focused exclusively on law, contemporary property scholarship often emphasises the contingency and the complexity of property, rather than its solidity and durability. as part of this rebalancing of rights with responsibilities, for instance, property in land is now sometimes imagined through the language of stewardship or custodianship (karp 1993; lucy and mitchell 1996). stewardship implies that an owner holds a duty to current and future users of a resource, and in a sense, a duty to the resource itself. stewardship has not been explicitly recognised as a facet of property, though it is making its way into various areas of law which deal with the environment.[footnoteref:10] extensive regulation dealing with maintenance and improvement of land quality, permissible land uses, recycling of resources, licensing for mining and clearance of vegetation, alteration of buildings and so forth, mean that responsibility to the future is already a prominent feature of law. [10: see, for instance, in the australian context, the product stewardship act 2011; the product stewardship (oil) act 2000; the environment protection and biodiversity conservation act 1999, s 3a; and the environmental stewardship program (http://www.nrm.gov.au/funding/stewardship/index.html).] another way of bringing the value of community into the discourse of property has been suggested by davina cooper in her discussion of belonging. cooper points out that ‘belonging’ is not only about control over an object, such as the things that belong to me in the sense that i own them, but is also ‘a relationship of connection, of part to whole’ (cooper 2007: 629; cf keenan 2010): in this sense, a person belongs to a family, not because they are owned by the family, but because they are connected to it, ‘part to whole’. belonging in this sense engenders an idea of property in which connection and relationship are central. property is about belonging, meaning that community fabric is as important as individual security in understanding it. 4. concluding thoughts generally therefore, recent scholarship has seen the development of a more complex notion of the person as well as a greater emphasis upon the community and environmental imperatives underlying the definition of property rights. in conclusion, i would just like to make a few comments about how these altered conceptions of persons and property are linked. first, we are moving away from an imaginary based on boundaries, self-containment and control, to a consciousness which is relational, contextual, and deeply social. the strong nexus between persons and property must now be seen as mediated by values associated with the commons, the public domain, and the numerous communities within which we find ourselves. it is simply no longer possible to remove shared interests from questions of identity and ownership. second, thinking about property and persons relationally means that the image of the quintessential owner shifts from isolated and powerful individuals, to connected individuals, groups, and even marginalised people (van der walt 2010). the development of native title in australia, for instance, is based on groups as the relevant interest bearers (a conceptual shift which remains, nonetheless, inherently deficient in practice). third, we can also see a different approach to the ever-present issue of distributional justice: in addition to thinking about who owns and how much, distributional issues can also be defined internally to property – that is, in relation to something which i own, what is the distribution of property rights between me and the community? instead of simply thinking about shifting property around between people, we are beginning to shift and rebalance what property means in different contexts. the flexibility of property discourse can facilitate this change. fourth, it is not possible in this or any other context to speak of a single undifferentiated community. communities are obviously multiple, contingent and dynamic. it is therefore not possible to formulate general principles about property and persons which will hold for all situations. and finally, persons and property are artificial legal constructs the meaning of which cannot be governed by law alone. they circulate through many layers of social relationships and networks. they constitute and are produced by material and symbolic economies. uncovering a few threads in these relationships begs a multitude of questions about others. references alexander, g and peñalver, e eds (2009) property and community new york: oup arneil, b (1994) ‘trade, plantations, and property: john locke and the economic defense of colonialism’ journal of the history of ideas 55: 591-609 arneil, b (1996) john locke and america: the defence of english colonialism oxford: clarendon press bottomley, a (2007) ‘a trip to the mall: revisiting the public/private divide’ in h lim and a bottomley eds feminist perspectives on land law abingdon: routledge-cavendish budiani-saberi, ba and delmonico, fl (2008) ‘organ trafficking and transplant tourism: a comment on the global realities’ american journal of transplantation 8: 925-929 chambers, r (2001) an introduction to property law in australia sydney: lbc information services cohen, m (1927) ‘property and sovereignty’ cornell law quarterly 13: 8-30. cooper, d (2007) ‘opening up ownership: community belonging, belongings, and the productive life of property’ law and social inquiry 32: 625-664 davies, m (2007) property: meanings, histories, theories london: routledge-cavendish davies, m and naffine, n (2001) are persons property? legal debates about property and personality aldershot: ashgate francione, g (2008) animals as persons: essays on the abolition of animal exploitation new york: columbia university press freyfogle, e (1989) ‘context and accommodation in modern property law’ stanford law review 41: 1529-1556 frow, j (1997) time and commodity culture: essays in cultural theory and postmodernity oxford: oup gray k (1991) ‘property in thin air’ cambridge law journal 50: 252-307 gray k (2007) ‘can environmental regulation constitute a taking of property at common law?’ environment and planning law journal 24: 161-182 gray, k (2010) ‘property in a queue’ in g alexander and e peñalver eds property and community oxford: oup gray, k and gray, sf (1999) ‘private property and public propriety’ in j mclean ed property and the constitution oxford: hart grey, t (1980) ‘the disintegration of property’ nomos 22: 69-85 hamilton, s (2009) impersonations: troubling the person in law and culture toronto: university of toronto press hardcastle, r (2007) law and the human body: property rights, ownership and control oxford: hart publishing harris, c (1993) ‘whiteness as property’ harvard law review 106: 1707-1791 harris, jw (1996) ‘who owns my body?’ oxford journal of legal studies 16: 55-84 hohfeld, wn (1913) ‘some fundamental legal 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case for stewardship’ cambridge law journal 55: 566-600 macpherson, cb (1964) the political theory of possessive individualism: hobbes to locke oxford: clarendon press mchale, j (2000) ‘waste, ownership and bodily products’ health care analysis 8: 123-135 milun, k (2010) the political uncommons: the cross cultural logic of the global commons farnham: ashgate naffine, n (1998) ‘the legal structure of self-ownership: or the self-possessed man and the woman possessed’ journal of law and society 25: 193-212 naffine n (2003) ‘who are law’s persons? from cheshire cats to responsible subjects’ modern law review 66: 346-367 nedelsky, j (1990) ‘law, boundaries, and the bounded self ‘ representations 30: 162-189 nedelsky, j (2011) law’s relations: a relational theory of self, autonomy, and law new york: oup ostrom, e, burger, j, field, c, norgaard, r, and policansky, d (1999) ‘revisiting the commons: local lessons, global challenges’ science 284 (9 april): 278-282 ostrom, e (2010) ‘beyond markets and states: polycentric governance of complex economic systems’ american economic review 100: 641-672 parekh, b (1995) ‘liberalism and colonialism: a critique of locke and mill’ in j nederveen pieterse and b parekh eds the decolonization of the imagination: culture, knowledge and power new jersey: zed books rassam, ay (1999) ‘contemporary forms of slavery and the evolution of the prohibition of slavery and the slave trade under customary international law’ virginia journal of international law 39: 303-352 skene, l (2009) ‘should women be paid for donating their eggs for human embryo research?’ monash bioethics review 28(4): 28.1-28.8 skeggs, b (2004) ‘exchange, value and affect: bourdieu and “the self” ’ sociological review 52 (supplementary issue 2): 75-95 skloot, r (2010) the immortal life of henrietta lacks new york: crown publishing strathern m (2005) kinship, law and the unexpected: relatives are always a surprise cambridge: cambridge university press tully, j (1993) an approach to political philosophy: locke in contexts cambridge: cambridge university press tur r (1987) ‘the “person” in law’ in a peacocke and g gillett eds persons and personality: a contemporary inquiry oxford: basil blackwell underkuffler, l (2010) the idea of property: its meaning and power oxford: oup van der walt, aj (2010) ‘property and marginality’ in g alexander and e peñalver eds property and community oxford: oup watson, i (1997), ‘indigenous peoples’ law-ways: survival against the colonial state’ australian feminist law journal 8: 39-58 __________________________________________________________________________________ 20 21 saoyo tabitha griffith trump’s assault on reproductive rights in africa _____________________________________________________________________________________ feminists@law vol 10, no 2 (2020) _____________________________________________________________________________________ end of trump’s rule will not end the assault on reproductive rights in africa saoyo tabitha griffith0f[footnoteref:1]* [1: * phd student, school of law and politics, cardiff university, uk. email saoyogriffith@gmail.com ] as president trump’s term in office comes to an end, analysis has focused on what his leadership meant for climate change, the racial divide, the us supreme court, foreign relations and human rights. largely overlooked is the impact that his policies and politics had in sub-saharan africa in relation to the advancement of sexual and reproductive rights. since the international population conference in 1994, the struggle to safeguard sexual and reproductive health and rights (srhr) has seen each side rely on political pressure, organized protests and legislative reform to push for or against its advancement. trump’s four year policies not only financed but also emboldened religious and fundamentalist groups in many african countries. in south africa, malawi, zambia, ghana, kenya and nigeria there were continuous attacks on policies, court rulings and proposed law reform to support access to safe abortion, comprehensive sexuality education and lgbt rights. his administration’s intolerance to the advancement of bodily autonomy, reproductive freedom and sexuality education quickly found local advocates. this led to increased disinformation, online cyber trolling, undermining of the united nations and in some instances physical attacks against those supportive of reproductive rights. the most important example is the impact of the mexico city policy (global gag rule) reinstated by trump’s administration in 2017. this expanded policy denied funding to foreign non-governmental organizations by demanding that they do not perform, counsel or refer women to abortion services. in return for compliance us global health assistance would be forthcoming. by forcing ngos to drop any abortion related work, the policy systematically attacked women and girls from african states that have for years been heavily dependent on us aid to advance sexual and reproductive health. the african population health and research centre argues that the policy is associated with an overall decrease in contraceptive use and an increase in unsafe abortions. across many african states, this led to the closure of clinics that were stripped of their funding and which suffered staff shortages, pay cuts and a shortage of family planning stock. this badly fragmented reproductive health services. alongside the gag rule came increased funding to religious groups. the us president’s emergency plan for aids relief (pepfar) operational guidance 2019 favoured working with local faith based networks. this is despite church resistance to providing comprehensive sexuality education and addressing the rising issue of sexual violence in religious settings. the us government actively aided conservative christian groups to scoop up more funding. during its ministerial to advance religious freedom in 2019 the state department offered faith-based organizations a tutorial in applying for government contracts to provide health services abroad. it was stated that conscientious objections to providing comprehensive sexual and reproductive health care was not a barrier to getting funded; indeed it explicitly stated that an applicant with this position was preferable. furthermore, trump’s administration gradually decreased funding to the united nations population fund (unfpa). this significantly threatened the ability to deliver reproductive services to millions of women and girls around the globe, particularly those in vulnerable humanitarian settings. by 2020, trump’s administration had deliberately withheld funds to support unfpa for four consecutive years even during a pandemic that had disproportionate effects on women. in october 2020 the us government, co-sponsored by egypt and uganda among others, launched the virtual geneva consensus declaration. this is a non-binding position paper that denies abortion as an international human right. it requires that the united nations allow states the sovereignty to design their own laws regulating matters of abortion and the family, a dangerous concept and free hand particularly for states that have a poor human rights record. the declaration has so far been co-signed by sixteen african states including burkina faso, benin, kenya, zambia, sudan, congo, cameroon, the gambia and niger. it is strong evidence of the retrogressive steps that the us takes to curtail women’s rights. with increased funding, anti-gender groups have become bolder in undermining the united nations and speaking out against embattled civil society organizations in africa. these anti gender groups actively engage in parliamentary and court processes using religious, political and cultural language to oppose srhr rights. the results have been devastating. in november 2018, niger ordered the closure of two reproductive health centres run by marie stopes international on grounds that they were illegally performing abortions. this was replicated in both kenya and nigeria with police officers raiding a marie stopes clinic in lagos on may 2019. a similar ban against marie stopes was witnessed in kenya in november 2018 fronted by the kenya medical practitioners board. in south africa, efforts by the department of basic education to expand the comprehensive sexuality education curriculum were met with religious resistance, and deliberate peddling of misinformation. there was an attack on the curriculum in 2019 with the argument that teaching children about their bodies would lead to an early interest in sex. a similar narrative was displayed in ghana on the proposed school sex education program. many religious groups termed it a “satanic” attempt to promote lgbt values. the policy never saw the light of day. the incoming us administration has a great deal of work to do to undo the damage of these policies. beyond repealing the gag rule on paper, its long-lasting consequences in sub-saharan africa must be addressed. deliberate financial, policy and political commitments will be needed to redress the harm caused by these newly emboldened anti-gender groups. _____________________________________________________________________________________ 2 _____________________________________________________________________________________ 1 cl quinan negotiating binary conceptions of sex/gender _____________________________________________________________________________________ feminists@law vol 10, no 2 (2020) _____________________________________________________________________________________ negotiating binary conceptions of sex/gender in a multi-gender world: response to ‘the challenge of same-sex provision: how many girls does a girls’ school need?’ c.l. quinan[footnoteref:1]* [1: * assistant professor of gender studies, utrecht university, netherlands.. email: c.l.quinan@uu.nl] introduction in “the challenge of same-sex provision: how many girls does a girls’ school need?” flora renz offers prescient commentary on the role that institutions – single-sex and otherwise – play in contesting binary conceptions of sex and gender in a multi-gender world. in the context of single-sex services broadly and single-sex education specifically, the paper interrogates existing aims of and challenges to gender differentiation while also raising the question of the extent to which recent developments in the realm of legal gender could challenge wider gender norms – or whether instead power structures become further solidified in this process. the case study of girls’ schools who have negotiated the presence of trans and non-binary students offers insight into what tensions may emerge in this area if broader changes to legal gender were enacted in england and wales. while the future of legal gender project is invested in tracing how potential changes to the existing framework for assigning and recognising legal gender would impact all people (not only trans and non-binary people), renz’s examination provides a preliminary understanding of the effects of accommodations for gender-diverse populations, with data gathered from interviews suggesting that trans students will not be barred from single-sex schools (or at least girls’ schools). indeed, these schools have been able to grapple with their own mandate of single-sex education in a changing gender landscape. renz’s paper also asks if single-sex education, and specifically female single-sex education, has an inherent value that is different to that of mixed education. this is not a question about whether girls’ schools should exist, or even how a change in the law would or could adapt to such single-sex facilities. although they are currently small in number, girls’ schools most certainly should be allowed to exist even if the law accommodated more than two sexes/genders or if decertification were to occur. historically, girls’ schools and women’s colleges have worked to combat the marginalization of girls and women in primary, secondary and higher education and have impacted gender-based income inequality by fostering women’s training and career prospects and channeling resources to underserved populations. single-sex education is not the only manner in which to address these gender-based disparities, but it is one way. in this sense, single-sex education could be considered aspirational in being committed to serving communities who are often neglected. this brings me to the broader political context, which must also be considered in this discussion. in europe and elsewhere, gender ideology debates have proliferated (kuhar and paternotte, 2017), while globally an uptick in trans visibility has perversely translated into increased violence towards trans and gender-diverse people (truitt, 2016). rather than widescale acceptance, trans people are constantly forced to prove they are who they say they are, that is, to “provide evidence of their very existence” (ahmed, 2016: 228). in the united states, so-called bathroom bills, which criminalize trans people for using the restroom that aligns with their gender identity, have abounded. even before these bills, trans people were targeted and courts ruled in at least two cases that trans individuals were required to use public restrooms according to birth-assigned gender, despite equality-based protections (spade, 2008; katyal, 2017). what insight might this example offer for the case of single-sex schools in england, where – in line with the requirements of the equality act 2010 – there is a clear legal basis for non-discrimination and inclusion of trans students? this could in fact indicate that there is reason to be skeptical of the law as enacting change and embracing diversity. returning to the paper, i would like to focus my remaining comments around three main themes – belonging, safe spaces, and institutions – each of which i will briefly touch upon in order to further reflect on the central questions that renz provokes: 1. belonging renz acknowledges the adaptability of schools in that they enact a more flexible reading of gender than is currently being accommodated in law. this also echoes dean spade’s point that in sex-segregated facilities, “[s]uch determinations about what constitutes ‘male’ or ‘female’ for purposes of placement are more frequently made through on-the-spot judgments or assessments of low-level decision-makers” (2008: 775). as renz’s analysis of the interview material highlights, decision-making is not always transparent and is made on a case-by-case approach, partially to align with the importance placed on inclusivity and community. however, because of this lack of transparency, it also forces us to ask what exactly is happening on the ground, especially given that in many contexts, as academic and activist work has shown, lgbt students are treated differently by students and teachers from their cisgender, heterosexual peers. being part of a community means ensuring that students feel valued within their school environment, but feeling valued means being accepted in one’s gender identity. do trans and non-binary students feel a sense of belonging at single-sex institutions? moreover, in terms of inclusivity and community values, it makes sense that single-sex institutions find solutions for when a member of the community transitions, but what about when a trans student tries to gain entry into this institution either (1) based on their gender identity but that gender not matching their birth certificate (for example, a trans girl wanting to enroll in a girls’ school), or (2) based on their sex assigned at birth but not their gender identity (for example, a student assigned female at birth who identifies as a boy, as non-binary, or as agender, attempting to attend a girls’ school)? while a student transitioning to a gender that does not align with a school’s single-sex mission often continues to belong to the school community, i wonder about students who transition prior to arriving at that school and want to be part of this single-sex environment based on their gender identity. that is, what mechanisms are at play before they become part of the community? 2. safe spaces it is perhaps ironic that girls’ schools could be positioned as a site to instigate broader societal change given that the notion of women’s spaces has been – and continues to be – so vitriolically debated in england and elsewhere. the paper puts forth the idea that spaces that are designated as single sex could actually “allow greater freedom from gender binaries without an opposite ‘other’ to serve as an explicit boundary of gender norms”. while on some levels this may be true, there is also a long-standing past and present of women’s spaces not accommodating individuals outside “women-born women”. while women’s spaces may often allow trans men in, trans women continue to be marked as suspicious or deceptive and are often barred entry into women-only spaces (bettcher, 2007). furthermore, when discussing single-sex institutions – which we might also call sex-segregated spaces – it seems to me that we cannot draw conclusions only based on schools but must also look to other places in which binary gender structures and limits our worlds, including bathrooms, domestic violence shelters, homeless shelters, and prisons, most of which might be more hostile to and would create more unsafe environments for trans and gender-diverse communities. 3. institutions when it comes to the role of institutions, including schools, and, i would add, gender itself, we must acknowledge that one of their primary functions or impacts is that they discipline (foucault, 1990). for example, renz mentions that one interviewee expressed regret at their inability to change a student’s name. instead of asking what this example might indicate about single-sex schools, it seems worth shifting attention in order to question how the school as an institution always already plays a significant role in the disciplining and policing of genders. and here, it is also critical to examine boys’ schools and how they might offer a very different approach to the inclusion of trans and non-binary students. in this respect, the move to co-ed schools could be seen as, in part, instigated to mitigate a hyper-masculine culture of boys’ schools, to say nothing of the harm they could inflict on trans children assigned male at birth but who identify with another gender. so perhaps girls’ schools have a benefit in empowering girls, but in looking at the full picture by including boys’ school, this single-sex focus might also translate into further entrenchment of gender norms, toxic masculinity, and the social and institutional fixity of binary gender. on this note, renz points out that many girls’ schools follow an ethos of empowering girls. in thinking about empowerment in the context of the institution, what strategies are used, what values are instilled, and what pedagogical strategies are drawn upon? in terms of structural change, it is this that would be worth devoting attention to on a societal level in order to give us tools to combat transphobia and cissexism as well as general microand macro-aggressions built into any system or institution that is reliant, explicitly or implicitly, on binary gender – which is to say, every institution in one way or another. conclusion to conclude, taking a prefigurative approach – as the future of legal gender project does – and putting things on the table that are not yet there means asking what the law can do for us in enacting the kind of world in which we want to live. feminist and queer scholarship and activism, which has consistently argued that the state doesn’t tell us what gender is or can be, might continue to serve as inspiration for critically analyzing how multiple and multiplying configurations of gender and social distributions of power shape and are shaped by law, resistance and emancipation. in this respect, “the challenge of same-sex provision: how many girls does a girls’ school need?” concludes with an important question: if “disruption of gender norms or boundaries only takes place within very narrow and specific spaces, then are the same norms and boundaries left unchallenged in other contexts?” perhaps this is utopian on my part, but i would argue that disrupting gender norms and boundaries in this one location – the single-sex school – is destined to have effects elsewhere. and if single-sex education is – as renz seems to argue – a project that is against gender oppression and is committed to respecting diversity, then single-sex schools make sense. but only if they do not tell us what gender is or can be. references ahmed, s. (2016) an affinity of hammers. tsq: transgender studies quarterly 3(1-2): 22-34. bettcher, tm. (2007) evil deceivers and make-believers: on transphobic violence and the politics of illusion. hypatia 22(3): 43-65. foucault, m. (1990) the history of sexuality vol. 1: an introduction. translated by robert hurley. new york: vintage books. katyal, sk. (2017) the numerus clausus of sex. university of chicago law review 84(1): 389-494. kuhar, r and paternotte, d. (eds) (2017) anti-gender campaigns in europe: mobilizing against equality. london: rowman & littlefield. spade, d. (2008) documenting gender. hastings law journal 59(1): 731-842. truitt, j. (2016) transgender people are more visible than ever. so why is there more anti-trans legislation than ever, too? the nation 4 march. available at: https://www.thenation.com/article/archive/transgender-people-are-more-visible-than-ever-so-why-is-there-more-anti-trans-legislation-than-ever-too/ _____________________________________________________________________________________ 6 _____________________________________________________________________________________ 7 rosemary auchmuty book review ___________________________________________________________________________ feminists@law vol 9, no 2 (2019) __________________________________________________________________________________ susan atkins and brenda hoggett, women and the law, institute of advanced legal studies, university of london, 2018 (originally published by basil blackwell, 1984) https://humanities-digital-library.org/index.php/hdl/catalog/book/atkins_hoggett rosemary auchmuty[footnoteref:1]* [1: * professor of law, university of reading, uk. email r.auchmuty@reading.ac.uk. ] women and the law was the first book ‘comprehensively to examine the gendered nature of the law’ in the uk, as the authors recall in their entry in women’s legal landmarks (ed. erika rackley and rosemary auchmuty, hart publishing, 2019, 374). it has now been reprinted in the institute of advanced legal studies’s open access series, with a foreword by susan atkins reflecting on changes in the law in the intervening 35 years. though there have been other admirable examinations of the gendered nature of the law since this book appeared, notably joanne conaghan’s law and gender (oup, 2013), women and the law remains indispensable for its clear and historically grounded account of the impact of our law on women and its analysis of how change comes about and how and why it is all too often hindered and resisted. the authors, academics at the time of writing, went on to play significant roles in challenging and changing the ‘gendered nature of the law’. susan atkins became director of the women and equality unit in the cabinet office. brenda hoggett became the rt hon baroness hale of richmond, president of the uk supreme court. they are living exemplars of their key messages, that the law will not work well for women unless we first uncover and draw attention to its differential effects, that reform will not happen unless we work for it – and that it works best when we are in there helping to make the laws. ‘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,’ they conclude (5). ‘this is not a legal textbook,’ the authors declare at the outset (1). legal textbooks at the time (and often still) were dry ‘accounts of the legal rules’ (ibid), devoid of context or critique, and organised into conventional legal subject categories like tort, property law and crime. but it is surely an overstatement to say, as they do, that there are already ‘many admirable accounts of the legal rules’ (ibid), given that most textbooks have ignored or skated over laws that apply particularly or differently to women. ‘our purpose,’ they go on, ‘is not to give a biased account of the law’ (we all know that anything feminist is inherently biased), but to reveal how ‘the law itself is biased’ (ibid, my emphasis). this is a bold and brilliant claim, amply borne out by the pages that follow. atkins and hoggett hasten to deny any ‘unconscious male conspiracy’ (ibid) in devising a legal system that works in the interests of men. otherwise, they say, women’s position would never get better, as it clearly has over the past 150 years. but the impetus for that change goes unmentioned, in sentences where agency is so conspicuously lacking as to suggest very cautious crafting – let’s not put off our male readers on the first page! ‘once a source of inferiority has been identified and analysed, there has been considerable pressure to change,’ is how the authors put it. ‘often that pressure has been resisted for long periods’ (ibid). note that neither the pressure group, nor the resisters, are named. and sometimes, they point out, improvements in women’s legal position come about as side-effects of other pressures for change. (foremost among these, of course, are situations where the current law inconveniences men.) ‘retrograde steps,’ they conclude, ‘have tended … to be associated with the disappearance of women’s issues from the agenda’ (ibid). let’s say this plainly: legal progress for women tends to occur in periods of feminist activism and retrograde steps in periods of feminist retrenchment and backlash against feminism. that reluctance to name feminists as agents of change and men as self-interested agents of reaction disappears, i am pleased to say, in the substantive body of the text, which is arranged in three sections: ‘women in society’, dealing with education and the workplace; ‘the private domain’, covering sexuality, motherhood, the home, domestic violence and (rather remarkably, at such an early date) ‘the case against marriage?’ (sic); and ‘the state and women’s rights’, which looks at the welfare state and citizenship. these divisions deliberately reflect categories of women’s experience rather than traditional law subjects and, even though some chapters could easily be mapped on to property law, family law, employment law and so on, the book’s organisation goes some way towards explaining why so little of its research made its way into the legal textbooks of the ensuing 35 years (not that textbook writers need any excuse for leaving out material on women). the material, as well as being biased and irrelevant to the real legal issues, was just not arranged in the convenient categories they recognised! but the authors’ purpose was to show how the same discriminatory ideologies and techniques of control underpin all the legal fields, so that (for example) the assumed roles of women as homemaker and men as breadwinner account for their unequal treatment in paid work, on divorce, in property disputes, and under social security and tax law. in an era well before the current fixation on equality and rights, atkins and hoggett demonstrate clear awareness of the limits of formal equality, and of the constant push to return to the status quo. in their chapter on ‘equality at work’, they note that there is no evidence to suggest that there has been a dramatic improvement in women’s working lives in the [nine] years since the equal pay act and the sex discrimination act became law. the gap between women’s and men’s earnings is roughly the same as then. indeed, in recent years the slight trend towards closing the gap appears to have been reversed. (51) this is still true, 35 years on. most women are only too well aware that the presumption of childbirth and a presumed discontinuation of paid employment is the cornerstone of all the discrimination they face at work. (53) this too is still true, 35 years on. a chapter entitled ‘beyond equality of opportunity’ looks at equal pay for work of equal value (not then the law) and positive action, still live issues today. the second section, ‘the private domain’, is the hardest hitting. on sexuality, for example, atkins and hoggett point out that, however reluctant the law might be to interfere in sexual matters, it is much more concerned to protect men than women: men are protected against attacks and approaches by other men and even women, even though they do not suffer the risks of pregnancy and childbirth. … women are protected against vaginal intercourse, which does carry the risk of pregnancy and childbirth. their interest in being so protected in certainly great, but the male interest in protecting them against it is also great [to ensure their exclusive sexual rights and legitimate children]. (80) even then, the law is really only concerned to protect ‘respectable’ women; prostitutes and sexually active women alleging rape are not so entitled. as for lesbianism, there were never any controlling laws (they suggest) because there was no male interest in its punishment (81) except when it came to matters of divorce or custody of children (116). (this is not quite true, i think, as men have not hesitated to punish lesbians simply for not being under a man’s control.) indecent assault on a woman (by a man or a woman) carried a maximum sentence of two years’ imprisonment at the time; but indecent assault on a man (by a man or a woman) carried a maximum of ten years, five times as long (81-2). was it really five times as serious? finally comes a discussion of rape, remembering that at the time marital rape was not a crime (87). some wonderful quotations from the criminal law revision committee’s report on sexual offences (1980) reveal the existence of a continuing sexual double standard (a century after feminists first drew attention to it) and men’s reluctance to let go of the idea that women were put on earth for their sexual gratification. why do we need this book? is it not simply a historical document that scholars can consult in libraries? we need it because, first, it offers a snapshot of women’s legal position in 1984, at what must have seemed a high point of feminist activism and legal change. second, because in spite of the thousands of monographs and articles on aspects of women’s legal position that have appeared since then, there has not been any book of comparable coverage, nor one demonstrating such erudition both in the research and in the analysis. and third, because no one knows about this stuff any more. women’s history, and especially our legal history, is routinely erased from inter-generational knowledge; it forms no part of our legal curricula, and feminism’s concerns and goals have been replaced in our students’ eyes by the illusory goals of gender equality, human rights, and meritocracy based on individual effort. what women and the law does is reveal the ways that the structural inequalities based on sex and the continuing injustices suffered by women continue to be maintained in spite of the legal ‘progress’ in every area of our lives. a note on this new edition. the book is reproduced more or less as it was published by basil blackwell in 1984 when referencing practice was more casual. there is an index, but no bibliography. footnotes have been substituted for the original endnotes – a nice idea – but some are incomplete, lacking page numbers, and others are in short form because the source (with full details) has been mentioned earlier in the chapter. but the reader is not told exactly where, so, instead of flicking your eyes down a list at the back, you are forced to leaf through the earlier pages in the chapter to find the relevant full reference you seek. finally, the authors are still named as atkins and hoggett – doubtless their decision – but i think that renaming hoggett as hale might have encouraged more of our star-struck students to read it! that said, the institute must be congratulated on making available, open access, such a landmark text; it is still sorely needed. in 1984, when this book was published, a backlash against second-wave feminism was already setting in. the authors were clearly aware of this, as is evident from their treatment in chapter 6 of the newly-enacted matrimonial and family proceedings act 1984, with its cheerful disregard of the homemaker wife discarded without skills or experience to enable her to be self-sufficient after the ‘clean break’ that freed her ex-husband to maintain a second wife and family. yet they also expressed confidence that the mainstreaming of feminist ideas through the influence of eu law and women’s increased participation in political and policy processes and lobby groups would embed women’s issues into legal and political consciousness. this has indeed happened, but only up to a point. backlash is alive and well today and the same legal system that now acknowledges sexual harassment and coercive control of women remains reluctant to convict (or even try) rapists or accord divorced women a fair share of marital assets. atkins concludes her 2018 foreword with the warning that ‘women and the law may have marked a moment in transition but it is a good reminder, not only of how far we have come but also of why a feminist focus remains as necessary today, for men as well as for women, as it was thirty years ago’ (xxiii). ___________________________________________________________________________ 4 ___________________________________________________________________________ 3 cunliffe book discussion: murder, medicine and motherhood ______________________________________________________________________________ feminists@law vol 3, no 2 (2013) ______________________________________________________________________________ ‘don’t read the comments!’ reflections on writing and publishing feminist socio-legal research as a young scholar emma cunliffe[footnoteref:1]* [1: * associate professor, faculty of law, university of british columbia, canada. cunliffe@law.ubc.ca ] i have found it difficult to know where to begin a response to two reviews that succeed in being both enormously generous and fully engaged with the work that forms the basis of murder, medicine and motherhood. it is a standard academic joke that we should count our blessings if our research is read by long-suffering family members and one or two of those in our field. with eve darian-smith and mehera san roque as my allotted readers, i am blessed indeed.[footnoteref:2] the two reviews published in feminists@law are particularly exciting for me as they are written by women whose research accomplishments offer aspirational models for my own work. in a world in which the work of writing reviews tends to be under-valued, it is a particularly feminist act not just to review a book, but to write the review as richly and carefully as these two pieces have been written. i will try to do justice to darian-smith and san roque’s engagement in my response. as well as responding to darian-smith and san roque’s insights, i have also taken this invitation as an opportunity to reflect a little on the experience of writing murder, medicine and motherhood, and on its reception. [2: these reviews arose from an author-meets-reader session at the 2012 law & society association conference. the session was organized by my dear friend pooja parmar. i am also tremendously grateful to pooja for organizing the panel and to rosemary hunter for suggesting that we turn the session into a set of articles for feminists@law.] in the next section, i trace the choices and unanticipated challenges that structured my research for murder, medicine and motherhood. both darian-smith and san roque have commented on this methodology, and i have noticed that after publication, the scope and content of the finished product of a research project can seem inevitable. in this section i try to unpack that appearance, because i think that there can be value in trying to remember why certain choices were made at certain times, and in pondering the accidents that prompt turns within one’s work.[footnoteref:3] the following section considers the transition that takes place when a published work enters the field and in fact changes the topic of research in certain ways. given the media attention that my conclusions have attracted and the possibility that kathleen folbigg’s case may now be reviewed, murder, medicine and motherhood has to some extent had this effect. in the course of my work becoming a more public product, my conclusions and my sense of myself as an academic have also been challenged at times. the rewards and perils of media engagement form a topic that is occasionally discussed in the literature,[footnoteref:4] but rarely with regard to explicitly feminist work. given that academics are increasingly exhorted by our employers and research funding agencies to demonstrate the public relevance of our work, and to engage with mass media, it seems important to consider the possibilities and the pitfalls of such engagement from a feminist perspective. [3: simon halliday and patrick schmidt’s excellent work conducting law and society research: reflections on methods and practices (cambridge: cambridge university press, 2009) provides a model for such reflection.] [4: two of the best examples are michael mccann and william haltom, distorting the law: politics, media and the litigation crisis (chicago: university of chicago press, 2004) and austin sarat and susan silbey, “the pull of the policy audience” (1988) 10 law & policy 97.] methodology: a mixture of choice and chance i am occasionally asked how i chose to focus on the folbigg trial. the project that became murder, medicine and motherhood did not begin as a study of a single case. in 2004, as i proposed the doctoral research on which the book was ultimately based, the english courts, home office, royal college of paediatrics and child health, and royal college of pathologists were responding to the realization that justice had failed sally clark and angela cannings. trupti patel had been acquitted. donna anthony’s exoneration soon followed, as did a number of reports that sought to understand the variety of errors that had contributed to these wrongful convictions and to prevent their recurrence.[footnoteref:5] however, with the notable exception of fiona raitt and suzanne zeedyck’s insightful article on munchausen syndrome by proxy, very little of the commentary on these cases explored why mothers had been the subject of these errors.[footnoteref:6] [5: see for example helene kennedy, sudden unexpected death in infancy: a multi-agency protocol for care and investigation (london: royal college of pathologists and royal college of paediatrics and child health, 2004); royal statistical society, peter green, letter from the president to the lord chancellor regarding the use of statistical evidence in criminal cases (royal statistical society 2002) available online at http://www.rss.org.uk/uploadedfiles/userfiles/files/letter-rss-president-lord-chancellor-sally-clark-case.pdf. ] [6: fiona raitt and suzanne zeedyck, “mothers on trial: discourses of cot death and munchausen’s syndrome by proxy” (2004) 12 feminist legal studies 257.] meanwhile in canada, one had to look more closely, but there were glimpses that all was not well with child homicide prosecutions in ontario. judgments had been issued either acquitting parents and caregivers charged with killing children (and criticizing expert witnesses along the way),[footnoteref:7] or staying prosecutions.[footnoteref:8] in other cases, prosecutions had been withdrawn by the crown, in some instances after trials had begun.[footnoteref:9] in australia, coincidence evidence against tracey phillips had been excluded by a nsw supreme court judge, resulting in a withdrawal of charges,[footnoteref:10] and charges had been laid against carol matthey for killing four children.[footnoteref:11] kathleen folbigg had, of course, been convicted and sentenced for killing her four children. [7: r v sm 1991 carswellont 3660.] [8: r v kporwodu & veno (2003), 176 c.c.c. (3d) 97 (ont. s.c.j.), aff'd (2005), 195 c.c.c. (3d) 501 (ont. c.a.).] [9: these cases had been reported in canadian media by 2004, but are conveniently described together in stephen t goudge, report of the inquiry into pediatric forensic pathology services in ontario (toronto: queen’s printer, 2008) volume 2, chapter 2.] [10: r v phillips [1999] nswsc 1175 (17 december 1999) bell j.] [11: “authorities were told of child deaths” the age (29 august 2003) 1.] it was apparent that serious battles were taking place in courtrooms around infant death, and mothers seemed the most vulnerable participants in these cases (though fathers and other caregivers were also affected, especially in canada). it was less clear why these cases were emerging in several jurisdictions at about the same time. the initial goal of this project was to understand where this particular trend had come from, to explore how it might be linked to changing expectations of both motherhood and medical science, and to think about the connections between these cases and the broader literature on criminalization.[footnoteref:12] [12: for example, david garland, the culture of control: crime and social order (oxford: oxford university press, 2001); jonathon simon, governing through crime metaphors (2002) 67 brooklyn law review 1035. i was also cognizant of the criticisms that had been made by feminists of the inattention to gender within the criminalization literature. for example lorraine gelsthorpe, “female offending: a theoretical overview” in g. mcivor (ed.) women who offend (london: jessica kingsley, 2004) at 76.] the motherhood aspect of the cases seemed crucial to me, from at least two points of view. first, taking seriously carol smart’s suggestion that legal discourse helps to produce gendered subject identities, i worried about the effects of a turn towards the punitive in criminal law’s approach to motherhood – and i saw troubling connections between criminal law and other fields such as family law and welfare law in this regard.[footnoteref:13] what disciplining effects might these cases have on other mothers? secondly, i was also struck by shelley gavigan’s rejoinder to smart – her suggestion that seeing women within law as purely a discursive construction overlooked the importance of lived experience, leaving women with ‘neither agency nor experience’ beyond the discursive construction of their lives.[footnoteref:14] i was interested in both how law produces authoritative subject identities for women and in how these authorized identities might depart markedly from the lives of the women they purport to categorize and thereby render susceptible to judgment.[footnoteref:15] [13: carol smart, “the woman of legal discourse” (1992) 1 social & legal studies 1 at 29.] [14: shelley gavigan, “mothers, other mothers and others: the legal contradictions and challenges of lesbian parenting” in dorothy chunn and dany lacombe (eds) law as a gendering practice (oxford: oxford university press, 2000) 100 at 105.] [15: i have written more about these concerns in emma cunliffe, “(this is not a) story: using court records to explore judicial narratives in r. v. kathleen folbigg” (2007) 27 australian feminist law journal 71 and with angela cameron in “writing the circle: judicially convened sentencing circles and the textual organization of criminal justice” (2007) 19 canadian journal of women and the law 1.] i knew i wanted to look at trial transcripts and court records, because i had a sense that they offered the material from which one might be able to challenge the fluency of law’s authorized narratives regarding facts and culpability, and i suspected i would need to mount that challenge at times. the legal archive seemed an obvious starting point for understanding more about cases than one can learn by reading judgments. however, very little was written about how one should approach the task of analyzing transcripts and court records. accordingly much of my first eighteen months was spent developing a workable process by analogy with qualitative research methods borrowed mostly from sociology and history – and influenced especially by the feminist institutional ethnographies of dorothy e. smith.[footnoteref:16] [16: dorothy smith, institutional ethnography: a sociology for people (lanham md: altamira press, 2005); dorothy smith (ed.) institutional ethnography as practice (lanham md: rowman and littlefield, 2006). an article by stephen robertson also proved invaluable. stephen robertson, “what’s law got to do with it? legal records and sexual histories” (1995) 14 journal of the history of sexuality 161.] a further challenge was presented by difficulties of access. access problems, which seem anecdotally to be widespread, but are too rarely described in published work, excluded the english cases from close analysis, and plagued my attempts to investigate matthey.[footnoteref:17] the nsw court registry was, by contrast, willing to allow me access to its records in folbigg and phillips and able (for a fee) to make copies of those documents i wished to retain. [17: the english court of appeal denied my request for access to the clark and cannings files on the basis that it considered a phd to be a personal project, and presumably therefore exempt from the principles of open justice. challenging this decision was beyond my resources. later in the study, the victorian supreme court returned all exhibits used in r v matthey to the parties immediately after coldrey j issued his judgment criticizing the prosecution evidence and the expert testimony offered in r v matthey (see [2007] vsc 398). these exhibits had been used in open court and would otherwise have been available for inspection as part of the court record. i had access to the transcripts of argument in the supreme court, and the transcripts of the committal hearing. however, without the exhibits, it would be difficult to perform a complete analysis of the case. these experiences eventually prompted me to write an article about the concept and importance of open justice: emma cunliffe, “open justice: concepts and judicial approaches” (2012) 40(3) federal law review 385.] in ontario, strong principles of open justice offered a more stable route to accessing court records. however, concerns about child homicide cases progressed during 2005 to the point where the office of the chief coroner for ontario announced that he would commission a review of all criminally suspicious cases in which pathologist charles smith had been involved.[footnoteref:18] this review concluded that there were serious errors in 20 of 45 cases, and the goudge inquiry was announced while the ontario court of appeal and supreme court of canada began to review individual appeals. this was welcome news for the parents and caregivers who believed that they had been wrongly convicted or unfairly accused of killing children, and those who supported their cause. it also made researching these cases much more of a moving target. [18: goudge, above note 8, volume 2 at 30-1.] in the end, after much worry, and many consultations with my phd committee, we decided that i would focus on a close analysis of the australian cases and draw the english and canadian cases in for context rather than direct study. i obtained copies of large portions of the folbigg and phillips files, and set to work persuading the victorian courts to give me, at least, the transcripts in matthey. by mid-2007, i had all of these materials. i also had the sense from time spent with the documents in the court registry that folbigg was different from the other cases – the crown evidence was more troubling, more complicated, perhaps more evenly weighted. i decided to write a chapter for the imagined dissertation explaining the folbigg case. after it had been drafted, i met again with my committee and much to my relief my supervisor suggested that i focus solely on folbigg going forward. six years later, the ‘progression’ of my phd dissertation from nine cases in three jurisdictions, to three cases in one jurisdiction, to focusing on a single trial is a subject of amusement among my committee – but at the time, it felt like an enormous gamble to write about ‘only one case’. another thing i hadn’t anticipated when i began the project was that it might take me deep into the published medical literature. however it became apparent from early reviews of the expert testimony that it would be helpful to read the cited material. this led me to wonder how that material fitted with a broader field of medical research and ultimately i read everything i could find about the relationship between sids and homicide. reviewing this literature, seeking to understand individual conclusions, the limits of those conclusions and the intellectual genealogy of a body of work as a whole, took months and required me to develop a somewhat different set of skills from those i had so far used to analyze the court record. i was fortunate to find sheila jasanoff’s work[footnoteref:19] and that of gary edmond[footnoteref:20] early in my research, as their (slightly different) conceptualizations of the relationships between legal and expert knowledges became the theoretical scaffolding that structured my approach to both the medical literature and the expert witnesses’ work in folbigg. edmond’s early work on expert testimony offered a model for careful analysis of the claims and discursive contests within experts’ work in court.[footnoteref:21] linking that literature to smith’s idea that institutional knowledge circulates through texts and is activated by the work of people[footnoteref:22] gave me a sense that it might prove fruitful to trace the connections and interruptions between published medical research, expert reports and testimony. [19: particularly sheila jasanoff, science at the bar: law, science and technology in america (cambridge ma: harvard university press, 1995).] [20: see the works cited below, note 20.] [21: gary edmond, “azaria’s accessories: the social (legal-scientific) construction of the chamberlains’ guilt and innocence” (1998) 22 melbourne university law review 396; gary edmond, “constructing miscarriages of justice: misunderstanding scientific evidence in high-profile criminal appeals” (2002) 22 oxford journal of legal studies 53.] [22: smith, a sociology for people, above note 15, chapter 8.] this combination of methodological choice and theoretical approach informed my conclusions in murder, medicine and motherhood and ultimately led particularly to the recommendations i have made for managing expert evidence. i am heartened that san roque finds these suggestions pragmatic and capable of ready implementation even as i am conscious that, requiring courts to re-conceptualize expert knowledge, they are unlikely to be fully embraced in the near future. nonetheless, i think the concept of double counting – the idea that courts should be attentive to the possibility that expert opinions are informed by the very adverse behavioural evidence and implicit prejudice that is often relied upon by triers of fact to ‘validate’ those opinions – is an important one, and i will explore it further in future work. i make a point of relating the ‘backstory’ to my doctoral work each year to the graduate students i teach in my methodologies class, because i think it illustrates the ways in which research projects are shaped by accidents and opportunities. i make a point of telling the story here because darian-smith has praised my methodological approach for its range and for the way in which it is integrated with my theoretical lens. the methodological challenges presented by this project seemed immense at times, and if i have succeeded in meeting those challenges, it is at least partly because i had a supervisory committee – susan b. boyd, wesley pue, christine boyle and dorothy chunn – who encouraged me to be flexible and creative in my approach, and to persevere with empirical work in the face of unexpected difficulties. i am very grateful to them for the trust they placed in me as i found a way through it all. transitions: from academic work to media engagement as i was preparing the book for final publication, i faced two decisions that i found difficult. first, how bluntly would i state my conclusion that kathleen folbigg had been wrongly convicted? secondly, what steps could and should i take to draw attention to my conclusions? as i have already identified, folbigg’s trial seemed in certain respects better managed than many of the trials that were approximately contemporaneous with it. the trial judge did not permit expert medical witnesses to testify directly to the dogma that the presence of multiple deaths in a given family suggested murder, reasoning that this opinion was based on common sense rather than expertise.[footnoteref:23] nonetheless, i found that this logic entered the trial in invidious ways, some of which made this reasoning more difficult for the defence to contest than might have been the case if the opinion had simply been directly attested to.[footnoteref:24] there were, additionally, strong hints that some of the experts were influenced by kathleen folbigg’s diaries and perhaps by other inculpatory evidence when they testified about cause of death in individual children. craig folbigg, kathleen’s estranged husband, likewise changed his testimony in a way that was considerably more damning than his previous statements to police and crown. the diaries were used by the crown prosecutor in a manner that could well have left the jury uncertain about what kathleen folbigg wrote, and how tedeschi (the prosecutor) interpreted those entries. all of these strategies were troubling, and each proved difficult for the defence to counter at trial. [23: r v kathleen folbigg, unpublished decision of barr j, 7 may 2003. ] [24: the discursive and strategic moves that permitted this re-emergence are traced in murder, medicine and motherhood at 73-79.] while recognizing that this was a difficult case to defend, i was also somewhat critical of some of the choices that had been made by folbigg’s defence team at trial. most particularly, when the crown suggested that the jury could use folbigg’s interest in physical fitness, or her evenings out with friends, or her occasional desire to work outside the home, or her frustration at craig’s refusal to help with household chores to discern a possible motive for her to kill her children, the defence responded by suggesting that these hadn’t been folbigg’s true desires at all. as a feminist (frankly, as an adult woman living in an oecd country), it seemed astonishing to me that the defence had not also challenged the crown’s reasoning. the notion that a reason to murder one’s children can be discerned from a desire to be fit, a concern about whether her husband would find her attractive when she felt overweight, a wish to share household work more equally or a desire to have her own money and to help secure the financial stability of her family seems absurd when decontextualized from its application to a woman who was already suspect by virtue of having lost four children and being charged with their murder. the apparent salience of these (contested) facts demonstrates the importance of framing – they mattered because folbigg had lost her children and because she was charged with murder. the possibility that this reasoning might put the cart before the horse was never adequately addressed at trial. rather, in the context of the trial, the bizarreness of the crown’s logic went largely unchallenged and the logic was at times actively supported by the defence strategy of accepting the category, but denying that folbigg fitted within it. the defence was undoubtedly surprised by craig folbigg and lea bown’s[footnoteref:25] testimony that kathleen had occasionally been rough with laura. this testimony was at odds with prior statements, and was cross-examined on that basis. again, however, the defence didn’t squarely challenge the proposition that murderous tendencies can be discerned from, for example, holding down a child’s hands in frustration when she resists eating her breakfast – preferring instead to deny that such incidents had occurred. like san roque, i am perturbed by the apparent ease with which the nsw department of public prosecutions has leveraged a particularly punitive – at times misogynistic – vision of contemporary womanhood in the service of convicting women for crimes that may never have occurred, and by the implications that these strategies may have for every woman who struggles at times with the frustrations and loneliness of mothering. it also troubles me that these moves were not targeted, and countered, by the defence at trial. yet these moves are not unique to folbigg, nor even – as clark and cannings demonstrate – to nsw. i suspect that they are rarely countered in criminal courts as strongly as they should be. [25: lea bown is kathleen folbigg’s foster sister. ] there were also some positive indicia of factual innocence in kathleen folbigg’s case. in cannings, the english court of appeal made much of the fact that none of cannings’ children had any signs of smothering on autopsy: it is of course possible to smother a baby without leaving any physical signs discernible on medical examination or at post mortem. nevertheless, given that all four children were said by the crown to have been subjected to violence sufficient to cause death, the absence of any physical signs of injury was somewhat surprising. there was no fresh copious bleeding in the lungs of the dead children, and no petechial haemorrhage. there were no pressure marks to show as reddening in the area of the mouth and nose, nor blood or bloodstained fluid in the nose. no bruises were discovered on the outer skin surface, or indeed subcutaneously. the fraenulum, in each case, was undamaged.[footnoteref:26] [26: r v cannings [2004] ewca 1 at para 160.] the four folbigg children were likewise free from all signs of foul play. this was important in aggregate, and perhaps most striking in relation to laura, who was well above the age at which it is normally considered possible to smother an infant without detection, and whose autopsy was conducted by a pathologist who strongly suspected homicide based on the family history. each of the children was autopsied, and in two cases (patrick and laura) investigating doctors identified a plausible natural cause of death at the time of autopsy. in relation to both of these children, doctors testified at trial in a manner that was inconsistent with earlier conclusions, but without explaining the reasons for their change of opinion. in fact, the jury would have had to work hard to realize that the medical opinions had changed at all. likewise, folbigg had none of the risk factors identified in the literature as predisposing a mother to smothering her children. this remains true even when one includes studies that have been criticized as being unduly suspicious of women.[footnoteref:27] craig folbigg did not suspect kathleen of having killed their children until he spoke to police and subsequently read kathleen’s diaries after she had left him, and them, in the marital home. when craig told kathleen that he had suggested to police that kathleen may have killed their children, kathleen told craig to go back to the police station and ‘tell them the truth’.[footnoteref:28] [27: this research is discussed at length in chapter five of murder, medicine and motherhood. perhaps, kathleen folbigg’s early childhood could be interpreted as constituting a difficult upbringing. barr j construed her history in this way when sentencing folbigg (r v folbigg [2003] nswsc 895). however, by most accounts she was a relatively settled child and teenager and one should be careful before generalizing from an infant history to adult findings of criminal guilt when there is an intervening period of unexceptionable behaviour and a capacity to form personal relationships.] [28: craig testified at trial that he interpreted this direction as a coded injunction to lie to police. ] the crown case at trial was that folbigg killed her children and then immediately raised the alarm. the crown made much of some evidence that the two children who died at night were found by folbigg as she went to the toilet – san roque has quoted tedeschi’s sarcastic comment about folbigg’s bodily functions. there was conflicting evidence about whether the children’s bodies were cool to the touch when they were found – but this was not drawn to the court’s attention. it is clear from the 2007 appeal that this factor mattered to some jurors (and to the nsw court of criminal appeal).[footnoteref:29] [29: r v folbigg [2007] nswcca 371 at para 8 and 56-9.] collectively, the lack of physical signs of foul play after careful assessment; the presence of positive indicia of natural causes; the lack of risk factors; the possibility that the bodies of the children who were found at night were cool to the touch when attended by ambulance personnel; the lack of suspicion of folbigg by her closest family and friends; and her immediate response to the revelation that she was now suspect, suggest that there may be good reasons to believe that folbigg did not kill her children. when i was writing the manuscript that became murder, medicine and motherhood, i was not particularly looking for evidence of factual innocence, or even for evidence of an error that could found a claim of wrongful conviction. i was, as i have already noted, interested in what prompted the trend towards charging mothers who suffered multiple infant death, keen to understand the implication of changing concepts of motherhood and medical science in this trend, and i hoped to investigate the links between these matters and the criminalization literature. i am grateful to darian-smith and san roque for focusing on these dimensions of the book in their comments. they remain, for me, the core of the academic project and the factors that will continue to animate my work. however, in light of the evidence that militated against folbigg’s guilt, i decided to state clearly that i believed folbigg had been wrongly convicted. nsw does not have any corresponding institution to the criminal cases review commission, and so the question of what might happen next was far from clear. i did not correspond with folbigg until the proofs were finalised. when the contract with hart was signed, however, i reached the conclusion that it was important to alert folbigg to my conclusions and offer to send a copy of the book to her.[footnoteref:30] the letter i received in response put the essential conundrum i now faced into devastating clarity. rather than protesting her ill treatment within the justice system, folbigg wrote: ‘if this is purely for publication … then i would appreciate being informed of this. as hope can destroy as much as enliven ones soul.’ receiving this letter, i was aware of both my relative lack of capacity to offer practical help – as an academic lawyer working in another country, with no practising certificate – and of the enormous privilege i enjoy by virtue of my education and institutional position. i resolved to do what i could to find folbigg a lawyer who could act on her behalf, and that i would also try to draw the media’s attention to my conclusions. [30: debra parkes and i had a number of conversations about whether to approach folbigg, and if so by what means. her wisdom and her greater experience with women in prison were instrumental to the strategy we formulated, and i appreciate debra’s generosity in helping me to find a suitable way to alert folbigg of the book’s existence while ensuring that she had adequate support and that her privacy was respected.] murder, medicine and motherhood is deeply critical of the press coverage of folbigg’s trial. based on my quantitative and qualitative analysis of that coverage, i concluded that the press systematically ignored the challenges made by various witnesses to the crown narrative of the case, and thereby presented an imbalanced account of the evidence in folbigg’s trial. my decision to try to enlist the media’s help to reverse the conviction felt ironic, at best. dorothy chunn, who has taught me so much about media and media analysis, assured me however that the press would care less about consistency in its own reporting than it would about the newsworthiness of a credible claim that folbigg may have been wrongly convicted. her prediction proved right, and my efforts resulted in several favourable stories, particularly in the sydney morning herald. the 60 minutes and alan jones show followed in mid-2013. i hope, though i don’t yet know, that these stories will help folbigg to persuade the court of public opinion that there may be more to her case than was first reported. as feminist scholars might anticipate, the journalists i have spoken to have been much more interested in the failures of institutional processes that formed part of the investigation and trial than they have been in my analysis of the ways in which folbigg’s mothering was punitively enlisted against her. this focus is consistent with the coverage afforded to sally clark, angela cannings, and the canadian exonerees. to the extent that a story of miscarriage of justice has gained traction in the media, it has largely excluded the concerns about the targeting and disciplining of women that san roque articulates in her piece in this issue, and that i sought to raise in murder, medicine and motherhood. a feminist narrative has thereby been stripped out of a more conventional liberal account of the rational expectations of criminal justice and medical institutions. my experience of engaging with the media in folbigg’s case resonates with the conclusions drawn by dorothy chunn, susan boyd and hester lessard in their study of feminism, law and social change. speaking about law reform, these authors observe that: while they never controlled the agenda-setting process, feminists have been active and influential to varying degrees in proposing and shaping socio-legal reform … however, the broader social and economic forces represented by neo-conservatism and neo-liberalism have an important mediating influence on the impact that feminism can achieve.[footnoteref:31] [31: dorothy e. chunn, susan b. boyd and hester lessard, “feminism, law & social change: an overview” in dorothy e. chunn, susan b. boyd and hester lessard (eds), reaction and resistance: feminism, law and social change (vancouver: ubc press, 2007) at 4. ] chunn, boyd and lessard conclude that feminist successes have been strongest when feminists have found common cause, or strategic alliance, with strands of neo-conservatism or neo-liberalism. this conclusion has important ramifications for feminist academics, who are increasingly finding their performance judged against criteria such as ‘impact’ – including the extent to which one’s work is embraced within political, judicial or public discourse. the assumption that merit is the only criterion by which academic work will be judged within these spheres is unsettled by studies such as chunn, boyd and lessard’s. in keeping with the media interest in ‘how it feels’ to experience reported events,[footnoteref:32] 60 minutes and the sydney morning herald have also featured interviews with kathleen folbigg’s friends and foster sister. while folbigg’s foster sister remains convinced that folbigg killed her children, her friends quietly supported her throughout her trial and imprisonment. in this most recent phase, the media attention has been reconfigured and folbigg’s friends have assumed a prominence that they did not have during the trial and appeals. the implicit message being promoted appears to be that folbigg’s friends are ordinary, loving women who are also mothers – and who cannot conceive that their friend committed the crimes of which she was convicted. this aspect of the reportage has exhumed folbigg’s humanity in place of the ‘monster’ who was previously depicted in the media.[footnoteref:33] it appeals to the emotional dimensions of the case – inviting readers to consider for the first time the awful possibility that folbigg may first have lost four children, and then been wrongly convicted of killing them. however, this reportage also sidesteps the question of how and why folbigg was portrayed so differently by the prosecution and in the media in the initial phases of the case. in particular, while the diaries have occasionally been reproduced and discussed in this media coverage, there has been relatively little sustained consideration of the role they might have played in folbigg’s mothering and her grief about her children’s deaths. the observations that i made in murder, medicine and motherhood about the implications of the privatization and gendering of responsibility for early childhood, and the ways in which this responsibility has been harnessed by crown prosecutors to the task of rendering some mothers suspect,[footnoteref:34] have (predictably) been wholly ignored within the media coverage. san roque’s piece in this issue demonstrates the extent to which such prosecution strategies are, in fact, reinforced by the media coverage of cases in which women are prosecuted for homicide. [32: see murder, medicine and motherhood at 168-70; richard ericson, patricia baranek and janet chan, representing order: crime, law and justice in the news media (toronto: university of toronto press, 1991) at 35. ] [33: murder, medicine and motherhood, chapter eight. ] [34: murder, medicine and motherhood, chapter six, particularly 104-16. ] works in progress as i prepare this response, the final chapter of folbigg’s case remains incomplete. the moderate success of efforts made by several people to draw attention to concerns about the evidence given at folbigg’s trial provides some reason to hope that the convictions may be reviewed. however, the mechanism by which this may happen remains unclear. having exhausted normal avenues of appeal, folbigg’s quandary illuminates the inadequacy of nsw’s mechanisms for criminal review. as san roque and gary edmond have argued, folbigg’s case and others also demonstrate that the ethical obligations imposed on prosecutors and experts do not substitute for vigilant judicial oversight of the evidence introduced against criminal defendants.[footnoteref:35] i will continue to do what i can to draw my conclusions to the attention of those who may be in a position to review folbigg’s convictions. despite the positive reception my work has enjoyed, folbigg remains in prison, locked in a protective ward in a maximum security women’s facility that is housed inside a men’s prison on the outskirts of sydney. [35: san roque, this issue. see also gary edmond and mehera san roque, “the cool crucible: forensic science and the frailty of the criminal trial” (2012) 24 current issues in criminal justice 51.] while i work to correct the injustice that has been done in folbigg’s case, however, i am grateful to darian smith and san roque for focusing on the systemic implications of my research. these implications extend to the relationships between punitive visions of motherhood, medical opinions that are deeply imbricated with social stereotypes, and legal processes in which existing checks and balances have failed to prevent errors from occurring. taking a broader view of the failures that led to wrongful convictions in england, canada and australia permits the folbigg case to be seen not as an aberration, but as a telling instance of the failures of contemporary conceptions of the relationships between gender, crime and truth-seeking. while such discussions may find their greatest resonance within academic circles, i remain convinced that they offer the most fruitful path towards a more egalitarian model of fact determination in difficult criminal trials. ________________________________________________________________________ 12 ________________________________________________________________________ 11 monica burman burman immigrant women facing male partner violence feminists@law vol 2, no 1 (2012) immigrant women facing male partner violence – gender, race and power in swedish alien and criminal law monica burman* introduction the main concern of this article is the legal situation for women who have immigrated into sweden to enter an intimate relationship with a man with rights of residence, but are subjected to violence by that man. this issue has until very recently been poorly recognized in swedish law and policy. for more than 10 years, the immigration authorities had nothing but a couple of cases from the former aliens board to guide them in their adjudication of immigration law as regards residence permits for women who end their relationships with abusive men. this case law reflects the preparatory works of immigration law, which are dominated by a lack of knowledge about men’s violence against women in intimate relationships and an ignorance of the significance of gender, race and power. as late as in october 2011, the supreme migration court, established in 2006, tried its first case regarding abused women with insecure rights of residence. this case gives evidence of a better informed understanding of men’s violence against female partners and the particular difficulties facing immigrant women. even so, the basic problems with swedish immigration law remain intact. several legislative and policy measures, especially in the area of criminal law, have been introduced in the pursuit of more effective and gender-sensitive law and policy in order to ensure that the swedish state meets its responsibilities regarding violence against women, gender equality and women’s human rights. however, the cedaw committee and the un special rapporteur on violence against women have, in their latest reports, expressed their concerns over the human rights situation for immigrant, refugee and minority women in sweden (cedaw/c/swe/co/7:7; a/hrc/4/34/add.3). furthermore, the existing immigration law has, for several years, been criticized by the swedish national organization for women’s and young women's shelters. in response to these critiques, an official committee has recently been appointed to deal with the issue of immigrant women exposed to male partner violence, but the committee has not been given the powers to propose changes in the law. the assignment is instead to map and analyze the violence women with insecure rights of residence are exposed to, to illuminate the complexity of their situation, and to propose social measures that will improve their lot and that of their children. these aspects are of course important, but the proposals from the committee cannot present a serious challenge to the power structures and discourses in immigration law that are problematic for immigrant women exposed to male partner violence. migrant women across europe with insecure rights of residence experience greater exclusion and vastly reduced access to legal solutions to combat violence against them (humphreys and carter 2006). it is also well known that the legal rights of residence for migrant women living with violent male partners are crucial in respect to their possibilities of leaving these men (madsen et.al. 2005; humphreys and carter 2006; bexelius 2008; lenardt 2008; sharma & gill 2010; ingram et.al. 2010). there is also a common tendency to culturalize violence against immigrant or minority women and relate it to ‘others’, whether the ‘other’ is women, men or states. such othering processes, whereby certain ‘cultures’ or marginalized groups are stigmatized as ‘violent’, serve to normalize this violence and hence make it less visible. this can be observed today, for example, in policies within the european union (kantola 2010; agustín rolandsen & montoya 2011). the reality of immigrant women with insecure rights of residence exposed to male partner violence can be described as being trapped between the law and life in a no-win situation (madsen et.al. 2005). they get caught between the rules of their native countries and those of the swedish state which denies them the right to divorce or separation and to be protected from violence. they can either choose to stay in violent relationships until they become eligible for permanent residence themselves or leave and risk expulsion, more violence and social exclusion. furthermore, if they do return to their country of origin, they may face the prospect of ending up in prostitution, being married off to old men, or generally having to endure wretched circumstances, unable to support themselves (madsen et.al. 2005; roks 2009). through a process of comparison this article analyses the ways in which gender and race are recognized and addressed in swedish criminal and alien law with reference to men´s violence against immigrant women with insecure residency. i will argue that although the swedish criminal law system has engaged with gender equality and recognized men’s violence against women as being a question of gender and power, the significance of race and racism has not been properly acknowledged. although these aspects regarding gender and race need to be dealt with urgently, at least in the criminal law immigrant women are constructed as owning rights to be protected. in contrast, swedish alien law is blatantly lacking in an understanding of men’s violence against women both in terms of gender power relations and of the ways in which this violence can be racialized or culturalized. my main conclusion is that there are significant processes of ‘othering’ abused women in both legal areas, but especially in alien law where abused migrant women are constructed as unwanted in swedish society when no longer fulfilling their function as men’s partners. consequently, the swedish state appears to be relieved of any responsibility for abused migrant women. this article offers an analysis of swedish preparatory works and case law and calls attention to how certain values and ideas are constructed in legal texts. it seeks to unmask and problematize power structures and discourses in law by utilizing an intersectional analytical approach developed in feminist research on men’s violence against immigrant women. there is a need for such an analysis because the specific exposure of violence for minority women related to the social, cultural and legal problems they face is very seldom acknowledged in swedish research into men’s violence against women. in my view, the core of such an analysis is (1) the recognition of culturally specific forms and experiences of male violence, (2) an emphasis on the need to acknowledge how different social power structures shape and differentiates both experiences of and responses to violence, and (3) the recognition of how the imbalance of power and control runs through abused women’s experiences (sokoloff & dupont 2005; de los reyes & mulinari 2005; thiara & gill 2010; wendt 2010; nixon & humphreys 2010). i particularly want to bring to the fore the significance of power structures and discourses of gender and race in the ways immigrant women’s exposure to male partner violence is reflected and responded to in law and how the women are constructed in this context. my focus is thus on the relationship between power structures, constructions in law and the lived experiences of immigrant women exposed to male partner violence. in this way i hope to highlight how intersecting power structures and discourses in law are oppressive for immigrant women in the way they ‘other’ the women and exclude them from the overall swedish gender equality agenda. with this approach i also hope to avoid the risk of reproducing, within a victim discourse, essentialized constructions of abused immigrant women as powerless and passive victims who need to be taken care of. the overall dichotomy related to victimization, in which agency/active/non-subordination are placed in opposition to helpless/passive/subordination, is always crucial to challenge in order to offer new subject positions for abused women. the victim position is even more problematic for immigrant women who, in a context of discrimination, racism and colonial practices, are not fully included in a swedish “us” (carbin 2010) they risk being marked by a discourse of ‘collective victimhood’ which sees the violence as something culturally specific to them as women from certain cultures or communities (thiara & gill 2010). criminal law gross violation of a woman’s integrity – a turning point for gender swedish feminist demands for criminal law that is more responsive to men’s violence against women often emphasize general prevention, positive legal rights, positive criteria for using the law and the necessity of paying attention to gender and a crime victim perspective. such demands are confronted by a swedish criminal legal discourse which is typically academic and neoclassical, in which the general and special preventive effects of criminalization are strongly questioned and where negative rights are emphasized. a moral principle of fairness and traditional principles of justice, such as legality, proportionality and predictability characterizing a retributive criminal legal system, are also stressed. hence feminist demands risk being associated with arguments that are considered irrelevant, of subordinate importance, or even a threat to the basic principles of criminal law its purpose, legitimacy and boundaries. using criminal law in order to promote the goal of combating men’s violence against women is thus considered problematic in mainstream criminal legal scholarship. criminal law is not, according to a neoclassical criminal policy, first and foremost an instrument for solving social problems. instead – it is argued – it has to be seen only as an instrument for determining blame in a fair and legally certain way (burman 2007). against this backdrop the swedish women´s peace reform and the introduction of a new crime named ‘gross violation of a woman’s integrity’ represent an important turning point. at the beginning of the 1990s men’s violence against women was politically recognized as one of the most serious obstacles to the achievement of gender equality and acknowledged as an expression of a view of women that was incompatible with this goal (prop. 1993/94:147). this new perspective was incorporated in a government bill on gender equality in 1994 wherein this violence was politically defined as a specifically gender-equality issue related to power and women’s human rights. in 1998 a government bill entitled ‘women’s peace’ offered a comprehensive and gender-sensitive reform, which incorporated several legislative and policy measures (prop. 1997/98:55). feminist knowledge about men’s violence against women formed the basis for the women’s peace reform. this reform recognized the importance of male violence against women as part of the gendered power structure of society and its role in undermining gender equality and women´s human rights. the reality of women exposed to male violence was described as ‘invisible’ or ‘suppressed’ in the criminal law, and in response, amongst other legislative measures, a new crime “gross violation of a woman’s integrity” – was enacted. even though the criminal legal community presented a comprehensive critique attacking the idea of enacting a crime specifically aimed at domestic violence, and despite the critique of the proposed construction of the crime strongly influencing its final form, the law was nevertheless enacted. this enactment represented a significant discursive change. there had been a long tradition in swedish criminal legislative processes of constructing men’s violence against women in heterosexual relations as ‘different’ and ‘strange’, and therefore not suitable for inclusion in the criminal legal system. but in the preparatory works for the women’s peace reform the difficulties in dealing with such violence were also connected to the criminal legal system itself. as a result, the criminal law, from being constructed as a rather stable entity, quite impossible to challenge, became more open to scrutiny in respect to, for example, the types of values embedded in its theory and practice. similarly, the criminal legal system’s inability to deal with difference related to gender was also exposed. knowledge from other fields, such as feminist research into violence, was also taken more seriously and more easily used to examine criminal law (burman 2009). this meant that the law became an instrument for promoting gender equality, and gender equality was simultaneously formulated as a relevant aspect of criminal policy. the purpose behind the new legislation was to ‘construct’ a crime that better accorded with the reality of violence against women in intimate relationships and with the evidence from feminist research, e.g. patterns of repeated violence and the severity of its consequences (sou 1995:60; prop. 1997/98:55). another purpose was to ensure that blameworthiness for such violence is more adequately valued. the definition of the crime is sex-neutral and includes all intimate relations, for example between parent and child or same-sex relations, but in the second paragraph there is a sex-specific formulation concerning heterosexual relations and explicitly gendering the perpetrator as a man and the victim as a woman. the new crime covers less serious acts that are already criminalized, for example non-aggravated assault, unlawful threats, harassment and unlawful coercion. such acts now can be judged together and judged as more blameworthy than before if two specific prerequisites are met; if the acts form an element in a repeated violation of the victim’s integrity, and if they are likely to severely damage the victim’s self-confidence. moreover, although every act is singularly criminalized, the details of the place and date of each one are not necessary. so those acts committed over a period of time can comprise the basis for punishment, even though the precise time and place of each act of violence and how they were carried out may be to some extent unspecified. the reform and the newly defined crime have had significant effects. there has been an increased visibility and awareness of men’s violence against women in the criminal justice system, whilst it also seems that police and prosecutors use the possibilities offered by the new law to give much more attention to repeated patterns of violence (niemi-kiesiläinen, 2006). after some years of low prosecution rates and uncertainties regarding the adjudication of the new law, significant increases in the number of reported cases, prosecution rates and the number of men sentenced to imprisonment, have been observed (nilsson 2004; lindström 2005; hradilova selin & westlund 2008). despite the current criminal law appearing to be rather successful at protecting women´s rights in the context of domestic violence, there are nevertheless lingering problems. several forms of male use of psychological violence to gain power and control over women remain excluded, even though the possibilities of considering psychological violence have increased (burman 2010). discourses hindering a gender equal treatment of the violence still tend to dominate and influence legal practice and case law, for example by those apologizing for violent men and/or blaming abused women for the violence they suffer (burman 2010). finally, as already mentioned, the exile-specific context of immigrant women and racialized power structures are poorly recognized in this legislation. othering processes in criminal law according to two official government inquiries the same institutional racial discrimination exists in the swedish criminal justice system as in countries where there is more extensive debate and research on the matter (sou 2005:56; sou 2006:79). attention so far has mainly been directed at discrimination against or unfair treatment of offenders or persons suspected of crime (diesen et.al. 2005; sou 2006:30; brå 2008a; brå 2009), with victims of crime receiving much less attention. however, studies indicate that the overall chance of a case reaching prosecution is less if the victim is of foreign origin than if s/he has a swedish background (diesen et.al. 2005; brå 2008a). in regards to immigrant women exposed to male partner violence, studies produce a rather complex picture. immigrant women seem to comply more easily with the ‘ideal’, defenceless and subordinated female victim of male partner abuse and are often considered to be less independent than women of swedish origin (andersson & lundberg 2000). their exposure to violence may be seen as more serious, their stories of continuing abuse to be more reliable or their trustworthiness as higher. however, this only seems to be the case if the violent man is also of foreign background (brå 2008a). yet cases of male partner violence against minority women are less often successfully prosecuted by the police than cases of violence against women with a swedish background and minority women report that they experience worse treatment from the police than swedish women do (brå 2008b). until now, there has been only one supreme court case regarding the crime of gross violation of a woman’s integrity that involves an immigrant woman as the victim of male partner violence. this case is interesting, not only because of what is said in the text, but also because of what is not said and the ways in which the case differs from cases when both the victim and the perpetrator are of swedish white origin. the woman in the actual case had married an immigrant man from africa with residence in sweden, having herself immigrated to sweden from africa five years before the trial. the man was found guilty of molestation and unlawful threats on four occasions and of a large number of assaults, with the acts having been committed during a period of two and a half years. the exile-specific factors facing immigrant women victims of domestic violence are to some degree acknowledged in the case. however, the legal argumentation in judging the repeated criminal acts as likely to severely damage the woman’s self-confidence is dominated by a strong discourse on the defencelessness and subordination of the immigrant woman. [the woman] had recently moved to sweden without any knowledge of the swedish language and was mostly alone at home with young children. she lacked a social network. the circumstances in the case show that [the man] did not make any efforts to make it easier for her to integrate into swedish society and that in various ways he tried to control and limit her contact with others. it is evident that she was more or less at his mercy (nja 2003 s. 144, p. 157). in this way, the woman´s submissiveness, isolation and language problems are emphasized, even though there is extensive information in the case about the woman’s agency, for example how she opposed the man, transgressed his ‘rules’ and, in spite of her language problems, made several contacts outside the home. in similar cases of repeated violence, when victim and perpetrator are of swedish white origin, such evidence of female agency would make courts hesitant about the woman being an ‘ideal’ victim of domestic abuse. this might influence the judgment of the prerequisite ‘likely to severely damage the woman’s self-confidence’ in the opposite direction (burman 2010). it is true that the woman in this case was constructed as a ‘real’ victim of male abuse, but at the cost of disempowering and discriminatory intersecting discourses on gender and race. perhaps it is even more important that the man in this case also was an immigrant from africa. men of swedish white origin who are violent against female partners have never before or since in the supreme court case law on domestic violence been judged in a similar way as controlling and dominant. as regards such men, the swedish case law is instead dominated by discourses on the perpetrator’s unstable psychological conditions, especially strong emotions, disturbances, anger or psychological stress, that are seen as ‘caused’ by the relationships with their female partners and as ‘causing’ their violence (burman 2010). in my view, these differences seems to reflect the overall societal tendency to problematize and culturalize a violent man’s behaviour, masculinity and attitudes related to women to a much greater extent if he has a foreign background (de los reyes 2003). it also serves as an example of the pitfalls of recognizing exile-specific factors in criminal law while simultaneously failing to acknowledge racialized power structures and the tendency to ‘other’ the problem as not being related to swedish men or women. racializing gendered violence in this way serves to make both the violence perpetrated by ‘normal’ white swedish men and their female victims invisible. swedish ‘normal’ men are, as in the case of rape, constructed as being immune to committing gender related crimes and their violence as not primarily having to do with gender inequality and gendered power relations (bredström 2002; jarl & stolt 2010). alien law power structures the system for partner immigration comprises a principal right for an immigrating partner to settle in sweden if the relationship with the person in sweden is judged to be serious and a two-year probationary period during which the immigrant partner is granted a residence permit with limited duration. this legal construction brings with it a special tactic for control often used by the abuser, namely the threat of a forced return to the country of origin. abused immigrant women with insecure residency live constantly under the threat that the men might leave them and some men even inform the swedish migration board that the relationship is unstable (misiowiec 1999; lenardt 2008; roks 2009). immigration law does, however, recognize the problem that immigrant women exposed to male partner violence do not dare disclose their exposure within the two-year probationary period due to fear of deportation and therefore continue a relationship in which they are abused. for this reason, even if the relationship has ended before the two-year time limit has expired, a residence permit may be granted, if the main reason for ending the relationship is that the woman or her children have been exposed to violence or other serious violations of freedom or personal integrity (the domestic violence rule). a common discourse present in preparatory works is that of the protection of global relations, in which it is seen as important that national borders should not hinder the establishment of intimate relations. however, a discourse on the misuse of immigration law, where bogus marriages are said to be a common background to illegal immigration, dominates the preparatory works by the way it is used repeatedly as an argument in how to shape the regulations. one example is the common line of argument that the risk of bogus marriages and misuse of the legislation must restrict the possibility of receiving a permanent residence permit based on the domestic violence rule. violence which is termed “petty encroachments” shall not as such lead to the granting of a new residence permit. in assessing whether the violence or violation might lead to a new residence permit special consideration shall be given to (1) the circumstances under which the abuse took place, (2) how serious the abuse has been, (3) if violence or violations have occurred as single isolated incidents or as repeated violations, and (4) the duration of the relationship (prop. 1999/2000:43). the evidentiary standard is that the woman has to show probability that the abuse has taken place. a prosecution or conviction in court is not necessary. police reports or written evidence from the social services, healthcare services or women’s shelters documenting the woman’s statements about the violence can be sufficient. another evidentiary requirement is that the causal connection between the violence and the woman ending the relationship must appear plausible. it is hard to understand the view that special criteria are needed in order to prevent misuse of the domestic violence rule. what is implied here? is it a fear that men will admit to having perpetrated violence in order to help women to get a residence permit? or is it that women, assumed to have had no serious intention from the beginning, would be given an opportunity to easily manipulate men into using violence and then reporting them to the police so they can obtain a residence permit? it is also possible that this is an expression of the common ‘fear’ or even ‘presumption’ that women make false allegations of violence in order to gain advantages they are supposed not to be entitled to. even if the relevance of this last consideration could not be questioned, the ‘problem’ it presupposes could be seen as solved by the rather heavy burden of proof that is placed on abused women. so why is it regarded as necessary, in addition to this burden, to give so much emphasis to the type of violence or length of the relationship? the relevance of the criteria can also be questioned. why is, for example, the duration of the relationship relevant for deciding the question of a residence permit? moreover, these criteria reveal a view that is in opposition to the general swedish violence-against-women discourse, which expresses zero tolerance against violence. in this discourse no explicit exemption is made from legal and social rights for abused women in relation to how serious the violence has been or the duration of the relationship. there are several examples in the preparatory works which unmask a serious lack of knowledge about men’s violence against women in intimate relations, e.g. a statement about evidence of the required causal connection between violence and the woman ending the relationship. one factor considered to count against such a connection is if a long time has elapsed between the violent events and the end of the relationship (sou 1997:152; sou 1999:16; prop. 1999/2000:43). however, here the need to acknowledge the way violence functions as a tool for exerting power and control, the different ways in which an abusive man can maintain power and control without resorting to criminalized acts, the complex process it is for women to leave violent men, and the exile-specific factors facing immigrant women, are all totally ignored. alien law offers two more alternatives for obtaining a permanent residence permit when a relationship has ended within two years: first, if the immigrant, apart from the relationship that was the reason for immigrating, has a special attachment to sweden, for example to children or a new partner; second, if other particularly strong reasons for granting a residence permit exist one example of this being cases when the proven abuse does not fully meet the requirements of the domestic violence rule, but the woman, due to a divorce or separation, risks social exclusion if she returns to her country of origin (prop. 1999/2000:43). case law and the few studies that have been undertaken in this area suggest that abused women face evidentiary problems and that few women are granted residence permits on the basis of the domestic violence rule. according to statistics from the swedish migration board, the most common ground in 2009 for obtaining a residence permit after experiencing violence was ‘special attachment’ (roks 2010). it also seems as if the second alternative ‘other particularly strong reasons’ plays a more important role for abused women than the domestic violence rule. until very recently, when the supreme migration court (smc) tried its first case involving the domestic violence rule, relevant case law consisted of three cases in 2000 from the former aliens board. in the three cases from the aliens board, the domestic violence rule was considered inapplicable to the granting of a residence permit. in one case the man had been charged with repeated rapes, assaults and unlawful threats, but was convicted of just a single non-aggravated assault. the aliens board found the violence in this conviction not serious enough to meet the criteria of the domestic violence rule. nevertheless, the board concluded that the woman had likely been subjected to sufficient serious violence. the board referred to the fact that the man had been deterred before the trial by the charges brought against him and that the woman maintained the same story of violence and abuse throughout the criminal procedure. the duration of the couple’s cohabitation in sweden, four months, was, however, regarded as too short for the domestic violence rule to be applicable. in the two other cases the aliens board found that the women did not meet the requirement of showing probability of “enough serious violence”, mainly because she failed to prove physical violence. in one of these cases the board was rather unclear regarding how they judged the evidence requirement, even though they regarded the woman’s contact both with the police and the women’s shelter as a factor that supported her claim that she had suffered repeated physical violence. in the other, the day after the woman had reported the violence to the police she withdrew her report and the case was later closed. the main arguments in the evidentiary assessment were her report being withdrawn without being heard by the police and the absence of documentation of physical violence. in addition, in one of these cases the duration of the couple’s cohabitation in sweden, nine months, was regarded as relatively short but nevertheless long enough for the domestic violence rule to be applicable. yet in both cases the psychological harassment and humiliating ill-treatment the board found had taken place was not deemed serious enough. ultimately, in two of the three cases, the women were granted a residence permit on the grounds of having ‘other particularly strong reasons’, with the violence or ill-treatment they had faced, plus the risk of social exclusion if they returned to their native country (iran in both instances), being regarded as strong reasons for residence permits to be granted. studies clearly indicate that the aliens board case law has had a strong impact on the application of the domestic violence rule. the main reasons for not granting a residence permit seem to have been that the woman has not shown sufficient probability that the abuse took place or that the violence experienced is not considered serious enough. another common argument for not applying the domestic violence rule has been that the duration of cohabitation is too short (migv 2003; blomqvist and berndtsson 2004; roks 2010). the overall picture is that the domestic violence rule has been applied restrictively, which is not surprizing considering the restrictive tone in the preparatory works. the aliens board case law has effectively reinforced ignorance about gender and violence and the patriarchal view in the preparatory works. in the smc case from 2011 the woman was granted a residence permit on the basis of the domestic violence rule. the case does to some extent counteract the previous commonly expressed suspiciousness towards immigrant women who report that they have been victims of male partner violence. the main issue in the case was whether the woman had shown probability that the abuse had taken place. the migration board and the migration court found that she had not met the evidentiary requirement. the main arguments in this assessment were that the woman had failed to disclose the violence in spite of several contacts with the migration board during the relationship and that she reported the violence to the police six months after she informed the migration board about the violence and that the relationship had ended. in this respect, the argumentation of the smc gives evidence of a better understanding of men’s violence against female partners in general and the difficulties for immigrant women to disclose and report violence in particular. for example, the smc acknowledged that immigrant women often need time in order to find out what they can expect from the swedish society and to consider what actions to take. in my view, the smc case is an example of when there can be no doubt about the applicability of the domestic violence rule. in contrast to the previous cases from the aliens board, the woman in the smc case managed to present extensive evidence supporting her story of physical violence and coercive control. she had reported the violence to the police, but the prosecutor decided to close the case. however, the police investigation contained interviews with several witnesses who had observed clear evidence of violence on her face and had heard her express fear of her husband. she had contacted the social services in connection with the separation from the man, and they judged her situation so serious that they provided her with a safe shelter. further, a restraining order had been issued which for a year prohibited the man to visit or otherwise contact her. finally, the fact that she took the initiative to inform the migration board about the separation and disclosed the violence before the migration board initiated the investigation that led to the decision to deport her, was regarded to speak in favour of her trustworthiness. the length of the relationship was two and a half year after her arrival to sweden. it was established in the case that the woman during that time had been subjected to physical violence on average on ten occasions per month. at least this case shows that there exists a possibility to receive a residence permit based on the domestic violence rule. however, immigration law is still based on a misdirected ambition to reveal bogus marriages by using irrelevant criteria about violence that are oppressive towards immigrant women. the domestic violence rule implies that these women have to put up with violence for a rather long time in order to fulfil the ‘relationship duration’ and ‘serious enough and repeated violence’ criteria. yet if she waits too long before leaving, the causal connection between the violence and her ending the relationship might be questioned. i believe that it will continue to be rather difficult for abused women to obtain residence permits based on the right to live a life free from male partner violence and that it will still be easier for abused women to obtain a permit on the basis of relationships to others, as partners to another man or as mothers to children born in sweden. violence can generally be viewed as a hindrance to a woman´s right to end a relationship (ekbrand 2006). alien law strengthens this hindrance because of the legal criteria that have to be met. yet a violent man can easily get rid of an immigrant woman by separating from or divorcing her and there is nothing to stop him from starting a new relationship with another woman with insecure residency. the law helps to maintain immigrant women in a submissive position and makes the process of strengthening or empowering them more difficult (madsen et.al. 2005:63; roks 2009). in sum, restrictive immigration legislation affects minority women’s gender equality and signals that immigrant women are unwanted in swedish society. othering processes in alien law the main interest in the preparatory works is directed towards the women who immigrate to sweden, not the men. categorizing discourses are common and share a construct of women as “the other”. in one category of immigrant women entering into a relationship with a man in sweden they are described as “adventurous”; as very ‘eager’ to come to sweden and as having only themselves to blame for the situation, because they have taken the risk of immigrating to live with a man in sweden without knowing anything about him. another category is women who are “social migrants”, hoping for a better life. the partner relationship is described as not “normal” because it is considered to be connected more to economic, social or political situations in the woman’s country of origin than to a “normal” established mutual love relationship. yet another category is “culturalized women”; women described as coming from countries in which their freedom of movement is strongly restricted and they are totally dependent on their men. these women are constructed as especially problematic because it is presumed they encounter special difficulties in sweden due to cultural conflicts and antagonisms regarding sexuality, relationships and gender roles. in this way, immigrant women are constructed in relation to a tacit norm the “swedish” woman who is presumed to have honest intentions regarding her relationships, who is living under gender equal conditions and is able to handle her situation. by granting residence permits on the basis of “other particularly strong reasons” the problem can also be defined as existing outside the “gender equal” swedish borders, in the abused woman’s “underdeveloped and gender unequal country of origin”. this is a way of “othering” the problem of male partner violence and avoiding having to deal with the responsibilities of the swedish state to protect women inside its borders against the violence. the starting point for swedish alien law is that the law shall not hinder the establishment of relations crossing national borders. but this starting point as well as the male demand for women which lies underneath it, becomes totally invisible when violence becomes an issue. what happens instead is that alien law only focuses on the immigrant women. the power structures embodied in alien law and the ways in which abused immigrant women are constructed excludes from the picture not only the gendered processes and consequences of violence, but also the parts taken by demanding men in sweden and the swedish state, both of whom originally welcomed the women to sweden. in my view, alien law leaves immigrant women’s integrity, rights and welfare poorly protected. having the possibility to stay in sweden seems to be something immigrant women must ‘earn’. the crucial question is rather, if it is reasonable for the state’s obligation towards them to be so weak, then why has the state supported women’s mobility in order for them to become the partners of men in sweden? concluding discussion the most obvious difference between criminal and alien law is in regards to gender. feminist demands on criminal law have often been (and still are to some extent) met with scepticism or resistance in mainstream criminal legal research and policy because the demands are interpreted as a use of criminal law which conflicts with the very idea of criminal law. criminal law is conventionally comprehended as being based on legal and ethical principles some of them laid down in human rights instruments, constitutions or laws which have the purpose of exerting a strong influence on the penalization of violence, the application of the law and the criminal legal process. the legal principles, concepts and subjects in this area of law are constructed with the aim of ensuring that the person who is being accused of a crime is treated in accordance with the rule of law. in contrast, the victim of crime has no self-evident position within the criminal justice system. further, arguments based on the relevance of gender are often rejected because criminal legal principles and norms are considered to be gender neutral. in spite of this continued rejection of feminist demands swedish criminal law has undergone some rather radical changes in regards to gender, power and male violence against women in intimate relationships and women who have been victims of male partner violence are constructed as legal subjects with rights. alien law is in many respects described in the opposite way, as ‘special’ and implying other demands such as flexibility and extensive scope for assessing the particular circumstances in individual cases (see nilsson in this edition). the legal criteria and evidentiary standard in the domestic violence rule are certainly flexible and might therefore be expected to lead to a more flexible outcome. instead, alien law shows a continued pattern of reproducing patriarchal notions of abused women and a problematic representation of violence itself. this is not so surprizing given that the significance of and relations between gender, violence and power have not been acknowledged and implemented in alien law. neither have existing human rights for immigrant women exposed to male partner violence been taken seriously. instead of being represented as legal subjects and women with rights, intersecting patriarchal and racist discourses construct immigrant women exposed to male partner violence as ‘other women’ who are unwanted in swedish society when no longer fulfilling their purpose as partners of men in sweden. this ‘othering’ process is similar to that in which female victims of trafficking for sexual purposes are precluded from being considered as belonging to the moral community of the destination country and in which their status as irregular immigrants, rather than women living in the country, is the categorizing condition (marmo & la forgia 2008; yttergren in this issue). the most obvious similarity between criminal law and alien law is that immigrant women exposed to male partner violence tend to be constructed as the ‘other’, even though the ‘otherness’ is formulated differently. also, the violence tends to be constructed as a non-swedish problem in both. male partner violence, at least when it is connected to unequal gender relations, is represented as something that mainly ‘other’, non-swedish men are engaged in or as a problem that other ‘patriarchal’ states are particularly unwilling or unsuited to deal with. neither legal area begins to approach what i, at the beginning of this article, described as an intersectional approach to men’s violence against immigrant women. some recognition of the specific situation for immigrant women exists in both legal areas, but the risks associated with highlighting ‘culturally specific’ violence without recognizing power structures are also visible within them. there is a clear tendency in both criminal and alien law to ‘other’ the violence and to separate the abuse experiences of immigrant or minority women. such a separation might, within a context of racism and sexism, promote othering discourses, blame the victim or exclude gendered power relations from the analytical frame (thiara & gill 2010; agustín rolandsen & montoya 2011). these problematic aspects are most clearly found in swedish alien law. in criminal law the main problem, as already noted, seems to be the connection made between race, culture and unequal gender relations. another risk associated with ‘diversity sensitiveness’ as regards violence against women is that it might end up in a ‘one size fits all’ definition of violence, such as ‘family violence’, which though capable of recognizing institutionalized racism, may render gendered power relations invisible (vincent & eveline 2010). in the most recent swedish gender equality policy documents, abused women of immigrant or foreign origin are to some extent recognized as a ‘particularly vulnerable group’ due to the specific factors they face as immigrants and abused women with insecure rights of residence are described as facing a ‘particularly difficult situation’ (government communication 2007/08:39; government communication 2011/12:3). in the directives to the recently appointed committee, these women are represented as a ‘particularly exposed group’ (directive 2011:44). however, the ways in which immigrant women who suffer male partner violence are affected by discrimination and power systems related to gender and race in swedish law and society is still an absent issue. indeed, naming the women as ‘particularly vulnerable’ or ‘particularly exposed’ puts them in danger of being constructed as deviating from the swedish norm (carbin 2010). if such a naming occurs together with ‘othering’ processes, such as the ones in criminal law, there is a risk of creating a discourse of ‘collective victimhood’ and precipitating a culturalization of male partner violence. however, with the kind of ‘othering’ processes that are present in alien law, there is a danger that violence in this context will be connected to shortcomings related to individual immigrant women, and not the role played by gender, race and power in swedish law and society. in sum, when it comes to women of non-swedish origin exposed to male violence, whether inside or outside swedish national borders, it is more appropriate to speak of the absence of a model for gender equality and the lack of protection of women’s human rights (see also nilsson and yttergren in this edition). giving voice to abused women from diverse contexts is important, but can end up in relativist identity politics (sokoloff & dupont 2005). a focus solely on law’s inability to take abused women’s different identity formations into consideration might make law unable to grapple with the diversity of violence. therefore i agree with those who argue that an intersectional approach to law should not mainly be bound up with issues of identity (for example, conaghan 2009). in my view, as regards immigrant women exposed to male partner violence, there is a need to include a broader social and legal context into an analysis of law and policy. intersectional analysis can provide an understanding of power and oppression which highlights and critiques the constitutive effects of law in producing the subjectivity of abused immigrant women, as well as the relationship between these constructions, power structures and material considerations, such as the violence immigrant women are exposed to. my analysis has focused on the latter aspects. it shows that the notions that men’s violence against women always harms women and is about the assertion of power and control over women should be placed at the centre of an intersectional approach to law and policy. doing so will hopefully contribute to counteract the problematic aspects of swedish law highlighted in this article and other risks associated with a simplified approach to gender and race in relation to men’s violence against women. law is often an unreliable ally in efforts to combat men’s violence against women and improve the rights and situation of abused women. using law to pursue gender equality and to confront and challenge patriarchal and racist domination and oppression is fraught with problems, especially when the gendered and racialized power structures in law remain unmasked, unchallenged and unchanged. however, the comparison between swedish criminal and alien law gives reason to be a little optimistic, for while alien law is a good example of what happens if nothing at all is done to challenge and change power structures in law, one can observe some significant positive outcomes of the gender equality reform of criminal law. 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(2005) trapped between law and life. report on abused minority women in the nordic countries. roskilde: center for likestillingsforskning [centre for gender equality research]. mahoney, m.r. (1994) ‘victimization or oppression? women’s lives, violence and agency’. in fineman, m.a. & mykitiuk, r. (eds.). the public nature of private violence: the discovery of domestic abuse. new york: routledge, pp. 59–92. marmo, m. & la forgia, r. (2008) ‘inclusive national governance and trafficked women in australia: otherness and local demand’. asian journal of criminology, 3, pp. 173-191. migv [the swedish migration board]. (2003) redogörelse för praxis i vissa fall rörande uppehållstillstånd på grund av anknytning [the application of the swedish migration board in some cases about residence permit based on attachment]. norrköping: migv. misiowiec, t. (1999) ‘våld mot kvinnor utifrån ett etniskt feministiskt perspektiv’ [violence against women from an ethno-feminist perspective]. sofia, 1999 (2), pp. 15-19. niemi-kiesiläinen, j. (2006) ‘feminist policy against violence in sweden’. in bondesson, u. v. (ed.). law & morality. københavn: forlaget thomson a/s, pp. 289-300. nilsson, l. (2004) ‘misshandel mot kvinnor och barn’ [assault against women and children]. in brå-rapport 2004:3, brottsutvecklingen i sverige 2001-2003 [the development of criminality in sweden 2001-2003]. stockholm: brottsförebyggande rådet [the swedish national council for crime prevention], pp. 65-83. nixon, j. & humphreys, c. (2010) ‘marshalling the evidence: using intersectionality in the domestic violence frame’. social politics, 17 (2), pp. 137-158. nordborg, g. & niemi-kiesiläinen, j. (2001) ’women´s peace: a criminal law reform in sweden’. in nousiainen, k., gunnarsson, å., lundström, k. & niemi-kiesiläinen, j. (eds.). responsible selves: women in the nordic legal culture. aldershot: ashgate, pp. 353-373. roks. (2010) fruimporten fortsätter. om kvinnor som utsätts för våld i anknytningsrelationer [imports of mail order brides continues. immigrant women with insecure residency exposed to violence]. stockholm: riksorganisationen för kvinnojourer och tjejjourer i sverige [the national organization for women’s and girls’ shelters in sweden]. roks. (2009) täckmantel äktenskap. kvinnojourernas erfarenhet av fru-import [under the cloak of marriage. women’s shelters experiences of mail order brides]. stockholm: riksorganisationen för kvinnojourer och tjejjourer i sverige [the national organization for women’s and girls’ shelters in sweden]. sharma, k. & gill, a. k. (2010) ‘the failures of the domestic violence rule for (im)migrant women’. in thiara, r. k. & gill, a. k. (eds.). violence against women in south asian communities: issues for policy and practice. london: jessica kingsley publishers, pp. 211-236. sokoloff, n. j. & dupont, i. (2005) ‘domestic violence at the intersections of race, class, and gender: challenges and contributions to understanding violence against marginalized women in diverse communities’. violence against women, 11, pp. 38-64. thiara, r. k. & gill, a. k. (2010) ’understanding violence against south asian women. what it means for practice’. in thiara, r. k. & gill, a. k. (eds.). violence against women in south asian communities: issues for policy and practice. london: jessica kingsley publishers, pp. 29-54. vincent, k. & eveline, j. (2010) ’the invisibility of gendered power relations in domestic violence policy’. in bacci, c. & eveline, j. (eds.). mainstreaming politics: gendering practices and feminist theory. adelaide: university of adelaide press, pp. 215-236. wendt, m. (2010) ’våldtäkt som demokratiproblem. förändring och stabilitet i politik och debatt’ [rape as a democratic problem. changes and stability in politics and debate]. in nationellt centrum för kvinnofrid [the national centre for knowledge about men’s violence against women] sju perspektiv på våldtäkt. uppsala: uppsala universitet, pp. 132-152. official documents un cedaw/c/swe/co/7 (2008) concluding observations of the committee in the elimination of discrimination against women: sweden. general assembly a/hrc/4/34/add.3 (2007) report of the special rapporteur on violence against women, its causes and consequences, yakin ertürk. addendum. mission to sweden. government bills prop. 1999/2000:43 uppehållstillstånd på grund av anknytning [residence permit based on attachment]. prop. 1997/98:55 kvinnofrid [women’s peace]. prop. 1993/94:147 jämställdhetspolitiken: delad makt – delat ansvar [gender equality politics: shared power – shared responsibility]. government committees and other official documents sou 2006:30 är rättvisan rättvis? tio perspektiv på diskrimingering av etniska och religiösa minoriteter inom rättssystemet [is justice fair? ten perspectives on discrimination against ethnical and religious minorities in the criminal justice system]. sou 2006:79 integrationens svarta bok. agenda för jämlikhet och social sammanhållning [the black book of integration. an agenda for equality and social unity]. sou 2005:56 det blågula glashuset – strukturell diskriminering i sverige [the yellow-blue glass house – structural discrimination in sweden]. sou 1999:16 ökad rättssäkerhet i asylärenden [strengthened rule of law in asylum cases]. sou 1997:152 uppehållstillstånd på grund av anknytning [residence permit based on attachment]. sou 1995:60 kvinnofrid [women’s peace]. government communication 2011/12:3 jämställdhetspolitikens inriktning 2011-2014 [the aim and direction of gender equality politics 2011-2014]. government communication 2007/08:39 action plan for combating men’s violence against women, violence and oppression in the name of honour and violence in same-sex relationships. directive 2011:44. kvinnor som utsätts för våld efter att ha beviljats uppehållstillstånd i sverige på grund av anknytning [women exposed to violence after being granted residence permit based on partner immigration]. ds 1999:36. the swedish penal code. * associate professor of law, umeå university, sweden. � hyperlink "mailto:monica.burman@jus.umu.se" �monica.burman@jus.umu.se� � in spite of its tendency to categorize abused women as passive and helpless objects i occasionally use the term ‘victim’ instead of ‘survivor’ or similar terms to represent women exposed to male partner violence. ‘victim’ is often a disempowering notion that renders it difficult to regard women as agents capable of taking responsibility over their own lives and the lives of their children (kelly 1988; mahoney 1994; crocker 2005). my reason for using the term ‘victim’ is that it in a legal context it is better suited than for example ‘survivor’ to represent the legal subject with the interest law aims to protect from harm by others (kolfjord 2004). � the critique and the processes and outcome of the legislative process are described and analyzed in nordborg and niemi-kiesiläinen 2001. � see ds 1999:36 for an official english translation of the crime. � more serious criminal acts such as rape and attempted murder cannot be included. if a man, beside rape(s), has committed, for example, repeated assaults against his female partner, he can be convicted of both rape and gross violation of a woman’s integrity, and the rape(s) can be taken into account in judging the two specific prerequisites of the latter crime. � the supreme court has elaborated this aspect in nja 2004 s.437. it seems to be the opinion of the supreme court that a prerequisite for accepting a series of unspecified acts is that some more detailed and specified acts can also be established. � chapter 5 section 3a and section 8 the aliens act (2005:716). � chapter 5 section 16 paragraph 3 the aliens act (2005:716). � see for example sou 1997:152, p.173; sou 1999:16, p. 377; prop. 1999/2000:43, p. 33. � see for example sou 1999:16 pp. 360-376; prop. 1999/2000:43, p. 36. � un 390-00. � un 418-00. � since 1982 a complaint from the victim or any other special consideration are no longer required for a prosecution of domestic violence. but it is still rather common for abused women to choose not to cooperate during the preliminary investigations and if there is no other evidence in favor of the police report, the prosecutors normally decide to close the case. � un 391-00. � un 418-00. � un 390-00 and un 391-00. � um 8405-10, 2011-10-21. � see for example sou 1997:152, p. 170 and prop. 1999/2000:43, p. 34. � see for example prop. 1999/2000:43, p. 35. � see for example sou 1997:152, p. 171 and prop. 1999/2000:43, p. 34-35. __________________________________________________________________________________ 8 __________________________________________________________________________________ 7 shona hunter cisgenderism’s move beyond anxious defence __________________________________________________________________________________ feminists@law vol 10, no 2 (2020) __________________________________________________________________________________ cisgenderism’s move beyond anxious defence: commentary on ‘gender’s wider stakes: lay attitudes to legal gender reform’ shona hunter[footnoteref:1]* [1: * reader in the centre for race education and decoloniality, carnegie school of education, leeds beckett university, uk. email s.d.hunter@leedsbeckett.ac.uk. thanks to jo shah for comments which helped bring me back to my central concerns over power’s uneven distribution as the line to follow. getting back to biology again is entirely my own ‘fault’.] peel and newman’s paper on ‘gender’s wider stakes’ throws up many rich methodological threads. in this response i take the opportunity to follow and extend the line of analysis they establish in considering participants’ engagement with the ‘attitudes to gender’ survey as a ‘snapshot of a cultural moment’ (peel and newman this issue: 25) which is highly contested and polarised. in particular i consider the affective dynamics producing such polarisation as a form of anxious collective defence which suggests something important about the way that binary systemic power is shored-up, reproduced and filtered through cultural attachments to ideas of biological sex. this shoring up reinforces rather than disrupts hierarchies of inequalities and difference which are sustained through a call to a supposedly majority biology rather than a supposedly minority experience of gender fluidity. i therefore want to take seriously peel and newman’s central argument around using cisgenderism as a means to interpret an apparently straightforward resistance to a change to the current legal status quo through a systemic lens. such a systemic lens recognises that we remain attached to discourses and practices of biological determinism that damage ourselves as well as others. in this regard, an understanding of cisgenderism holds important possibilities for coalition working for collective emancipation. as someone engaged in research and related public debate into the contested area of whiteness as an institutionalised orientation to power and as a lived expression of coloniality, i recognise the experience of having the terms and findings of my research, my own capacity as a researcher and even my personhood put into (sometimes hostile) question. this questioning comes from a variety of conservative, liberal and left progressive positions (see, for example, haffajee (2013) and the response from garman (2013)). as someone very obviously positioned through and benefitting from the social, cultural and academic power of whiteness i see much of this challenge as useful in pushing myself and my thinking into a productively discomforted place (kinouani 2019). this discomforted place moves beyond introspection and personal defence, to the political and consequential aspects of living and resisting living race (hunter 2015a). nevertheless, there is a fine line between doing the important work of recognising and naming power, its everyday functions and its more obvious abuses in nuanced and challenging ways; and creating and sustaining a toxic public culture characterised through anxious defence. such toxic public cultures mitigate against the sort of reflexively self-questioning, more reparative forms of public engagements necessary to creating systemically oriented social change. the strength, tone and nature of the ‘attitudes to gender’ survey’s qualitative responses are suggestive of the way that such a toxic public culture works via a polarising defensive reaction, popularised through the idea of ‘call out culture’ (see, for example, ross 2019). relatedly they are suggestive of how progressive positions can get caught up and undermined within this dynamic. jennifer nash’s (2019) insightful analysis of the defensiveness which she argues has come to mark black feminist theorising around intersectionality, shows how ‘defensive affect traps black feminism, hindering its visionary world-making capacities’ (nash 2019: 3), and keeping it in a protective posture mired in policing boundaries of identities, ideas and practices. nash sees this defensiveness as representative of a broader social condition of stunted or obstructed agency, whereby defensiveness over a particular object like intersectionality ‘becomes a way of exercising agency, as a wilful form of territorial exertion in the service of autonomy, but one that is frustrating and frustrated’ (nash 2019: 28). this agency is frustrated because of the conditions through which it is enacted, and because of an inability to ‘let go’ and break out of its continued reference to power’s definition. we might see the ‘gender critical’ defensiveness over the recognition of biological female sex as a territory to be guarded and a status to be claimed and protected in this way. gender defensiveness can be read as a form of such a ‘frustrating and frustrated’ agency, enacted in the service of enabling and maintaining women’s autonomy as a means to achieving gender equality through owning the terrain of sex. reinstating sex may sometimes function even as a means to defend a commitment to gender fluid rights. consider, for example, the survey respondent ‘aghast and angry and just about sick to death of the casual, lazy but also deliberate ‘confusion’ of sex and gender in the debate about these issues’ (peel and newman, this issue: 22). extending nash’s argument more generally, and being more assertive in my claims than critics of so called ‘call out culture’ like loretta ross (2019), i would contend that polarisation enacted through anxious defence of a position always works to undermine claims for inclusion by those at the margins. this is precisely because the dynamic of defence diverts the precious and limited energies of social justice work(ers) to the redrawing of insider/outsider lines of marginalisation. defensive cultures do not exist outside of the dynamics of power that they name. the circularity of this anxiously defensive dynamic is suggestive of the way polarisation works through the rhetorical defence of equality to locate all sorts of negative affect including fear, guilt, shame as well as hurt, pain and blame for negation elsewhere, unevenly, in other objects, people, ideas. it locates bad feeling in others whilst mitigating against putting the self/one’s own position into question. this polarisation works through a set of culturally enacted projective dynamics which operate through idealisation and denigration by way of association between ideas and persons, where ideas come to stand in for the person and vice versa (hunter 2015b). within defensive cultures there is always a close at hand usual suspect, the someone else who already fits the stereotypical bill as the problem, therefore the appropriate locus for ‘calling out’ and the justified object of blame. for the debate over sex/gender this usual problematic suspect is the figure of the trans or intersex person, whereby common trans stereotypes, for example those around trans women as threats to women and children, are weaponised (burns 2019) as a means to undermine a case for any form of non-binary gender choice. these stereotypes, as well as fear around and defence against their deployment, are what is at stake in a number of the participant responses presented in peel and newman’s paper, all of which are pitched in terms of defence of one or other form of equality, usually, but not always for women and children. at some points this assumed threat is obvious like in the comments framing the relation between gender self-definition and abuse where ‘self-id marital status, claim a widow’s pension; self id age, claim pension ten years early or claim access to school children as a 30-yr-old claiming to be 15. … the list of potential abuses is infinite’ (peel and newman, this issue: 20). or for the respondent who finds the tone of the survey’s questions ‘misogynistic, homophobic, interphobic and most worryingly encouraging of child abuse’ (peel and newman, this issue: 11). black people and very regularly black women experience the uneven brunt of other versions of this weaponisation in a range of contexts where, in resisting the experience of racist and sexist negation, they are constructed as ‘paranoid and angry without cause’ (kang 2019); they become erroneously pinpointed as the cause of polarisation and anxious defence in public debate. high profile examples include the hostile television and radio interview gaslighting of the black british woman mp diane abbott (kang 2019) and the print media equivalent gaslighting of university of cambridge based academic priyamvada gopal by the daily mail (frazer-carroll 2019). this weaponisation reframes the experience of defence as attack. it deflects attention away from the reproduction of institutionalised power to its challengers who are undermined, both as witnesses to their own experience and in their role as challengers to the diminishment of others. defensiveness in the context of such weaponisation can offer immediate forms of release and important catharsis. however, it has limited impact on a systemically enacted dynamic like racism whereby those experiencing symbolic violence can all too easily be positioned as the violators. across these examples the patterning of this anxiously defensive culture says more about the fears and anxieties of what might be exposed in the defender than what is supposedly being defended against. there is crossover with debates on the nature of white defence in my own field, where the relationship between defence and desire is understood to be important to the systemic shoring up of whiteness as the unspoken ‘master signifier’ in the discourse of race (seshadri-crooks 2000). defence against seeing whiteness functions through the establishment of an overall racial (visual) schema which works to protect the myth of racial biological certainty. this racial biological certainty is held onto so strongly because it operates as a form of general protection against the universal human fear of experience of difference and the related uncertainty and anxiety. we can read this broader mythology of biological certainty in the ‘attitudes to gender’ survey across gender critical and more pro-trans positionings. the common fear exposed by peel and newman’s analysis is the undermining of the biological certainty supposedly enjoyed by the majority which is put into question by the recognition of trans and intersex people’s (assumed) embrace of biological fluidity. the problematic minority become symbolic of the majority fear, able to be sacrificed in the name of the majority benefit. this fear matters, not only because it drives behaviour which impacts the experience of so-called minorities, but because it reframes an understanding of the experience of so-called majorities in terms of these same violences. we might be able to see ‘cis’ gendered people as at least as much, if not more, impacted by cisgenderism than trans or intersex people more impacted in the sense that gendered dualisms do not matter ‘only’ because they hurt some of us, but because they limit the freedoms of and produce losses for all of us, as hinted at by the 72 year-old bisexual feminist peel and newman (this issue: 22) quote: ‘my legal gender is female but i have always been uneasy about ‘womanhood’, so i was saved from distress by the woman’s liberation movement and its more fluid understandings of being a woman. i’m too old now to declare gender neutrality but i’m interested in following the debates’. this recognition that gender binaries are universally oppressive becomes very powerful if it is brought into connection with broader coalitions against biologically rooted forms of body categorisation, like those of some intersectional anti-racist positions. what is at stake is a truncated and exclusionary way of understanding the human. this is where we see some of the most innovative feminist queer black theory and activism moving, to open up a different set of human potentialities, which can build on the anti-essentialist positions of commentators like seshadri-crooks (2000) and gilroy (2000) to deal with the complexities of relational ontology (see for example weheliye 2014; singh 2018) – potentialities which are not accounted for in biologically deterministic absolutes. where cisgenderism can become really powerful as an analytic tool is through its identification of the act of sexing/gendering the body as an act of systemic domination that operates through the tight coupling of social ideas of gender and bodily variations we think of as sex; and which [then] intersects with other powerful ways of framing bodily variation, difference, uncertainty and related to supposed human vulnerabilities like race. the idea of cisgenderism puts into question the idea of biological certainty upon which race, as well as gender, is dependent. what the shift to cisgenderism does is enable analysis to move on from claiming analogous relations between race, gender and sexuality and other forms of difference, to an analysis of the intersections that uphold white supremacy as the cultural dynamic fundamental to contemporary racial capitalism. cisgenderism is fundamental to the enactment of whiteness within a global colonial context; these intersecting bodily categories rely on each other. the defence of (cis) heterosexual white women and children is fundamental to contemporary global colonial racial formation which is kept in place by the intersection of narratives around heteronormative, cis-gendered dynamics where white women’s protection is idealised and instrumentalised in the service of racial domination (martinot 2010). this recognition is crucial to resisting the pitting of social justice movements against each other in the endless pattern of attack and defence. this splintering between movements for social justice can only be resisted if the assumption of biological certainty upon which race, sex/gender (and other forms of social division) depend is put into question. references burns, k. 2019. “the rise of anti-trans ‘radical’ feminists, explained”. vox. https://www.vox.com/identities/2019/9/5/20840101/terfs-radical-feminists-gender-critical frazer-carroll, m. 2019. “are live tv and radio debates worth it for women of colour?” gal-dem. https://gal-dem.com/are-live-tv-and-radio-debates-worth-it-for-women-of-colour/ garman, a. 2013. “whitewash backwash: a response to the ‘unbearable boringness of the whiteness debate’”. media and citizenship, rhodes university. http://mediaandcitizenship.ru.ac.za/whitewash-backwash/ gilroy, p. 2000. between camps: race, identity and nationalism at the end of the colour line. london: allen lane. gopal, p. 2018. “response to mary beard”. medium. https://medium.com/@zen.catgirl/response-to-mary-beard-91a6cf2f53b6 haffajee, f. 2013. “the problem with whiteness”. the frantz fanon blog. http://readingfanon.blogspot.com/2013/03/the-problem-with-whiteness.html#more hunter, s. 2015a. “being called to ‘by the rivers of birminam’: the relational choreography of white looking”. critical arts: south-north cultural and media studies 29(sup1): 43-57. hunter, s. 2015b. power, politics and the emotions: impossible governance. london: routledge. kang, b 2019. “instead of acknowledging racial bias, the bbc is gaslighting diane abbott – it’s shameful and dangerous”. independent online. https://www.independent.co.uk/voices/question-time-diane-abbott-bbc-fiona-bruce-mistreatment-bias-abuse-race-gaslighting-a8736211.html kinouani, g. 2019. “the psychology of white fragility (part 1)”. race reflections. https://racereflections.co.uk/2019/05/26/the-psychology-of-white-fragility-part-1/ martinot, s. 2010. the machinery of whiteness: studies in the structure of racialization. philadelphia: temple university press. nash, j. 2019. black feminism reimagined: after intersectionality. london: duke. o’conner, r. 2018. “mary beard posts tearful picture of herself after defence of oxfam aid workers provokes backlash”. independent online. https://www.independent.co.uk/news/uk/home-news/mary-beard-tweet-oxfam-aid-workers-sex-scandal-backlash-feminists-cambridge-priyamvada-gopal-latest-a8216306.html ross, l. 2019. “i’m a black feminist. i think call-out culture is toxic”. the new york times. https://www.nytimes.com/2019/08/17/opinion/sunday/cancel-culture-call-out.html seshadri-crooks, k. 2000. desiring whiteness: a lacanian analysis of race. london: routledge. singh, j. 2018. unthinking mastery: dehumanism and decolonial entanglements. london: duke university press. weheliye, a. g. 2014. habeas viscus: racializing assemblages, biopolitics, and black feminist theories of the human. london: duke university press. __________________________________________________________________________________ 6 __________________________________________________________________________________ 7 alain pottage response to emily grabham __________________________________________________________________________________ feminists@law vol 10, no 2 (2020) __________________________________________________________________________________ response to ‘exploring the textual alchemy of legal gender’ alain pottage[footnoteref:1]* [1: * professor of law, university of kent, uk; professor of law, sciences po école du droit, france. email r.a.pottage@kent.ac.uk ] emily grabham’s paper deftly positions the process of legislative drafting as an object of social-scientific study. her reconstruction of the use of gender pronouns anticipates so many lines of inquiry that it is difficult to hold to any one. in this brief comment i pick up on a theme that is suggested by emily’s foregrounding of a statement issued by the office of parliamentary counsel: ‘the medium is not the message’. it is impossible not to have in mind the questions of temporality that emily’s work encourages us to see. in the case of legislation, the medium consists not only in the materiality of text but in the cultural techniques of authorship and interpretation that are implicated in this materiality. and time is an essential ingredient of these medial techniques; the grammatical and syntactical machinery of legislation and legislative drafting not only animates the pronouns used in statutes, it also constitutes a locus of authorship that might itself be a subject of experimentation. from the perspective of gender, or a perspective that looks beyond gender, the grammatical routines of legislative drafting might be just as interesting as the pronouns that they choreograph. legislative texts are articulated into a set of tenses – predominantly conditional – by means of which a normative programme or purpose is supposed to bind the future. as a legislative drafter might put it, a statute has to ‘provide’ for the future; to anticipate it (providere) by realising it into specified (contingent) events, and by specifying what will be the case if any these events should occur. the governing mood is the subjunctive: should a specified event occur, it will have been provided for. indeed, the legislative drafter writes ‘as if’ specified events have already occurred; the future is brought ‘back’ into the present by means of grammatical and syntactical protocols that materialise it textually in the locus of legislative authorship. first, conditional tenses function as (binary) switches which determine whether or when the time of a specified event will have come. second, one effect of the syntactical-textual arrangement of statutes into clauses and subclauses is that, from the perspective of the drafter, ‘provision’ for the future is made through the composition of a textual plane. there is time in this synchronous plane: the grammatical and experiential time that is involved in constructing (or, for the interpreter, reconstructing) a complex pattern of clauses and subclauses. this work of composition is explicitly notified in phrases such as ‘where by reason of subsections (3) to (5) of section 4 of this act …’, but it is already implicit in the most fundamental premise of drafting and interpretation, which is that statutes should be addressed as coherent compositions. the spatiality of the text as a material body, and the time it takes to traverse that body, is the dimension within which conditional futures are fabricated and projected ‘forwards’. what does this have to do with the question of gendered or non-gendered pronouns? speculatively, there is in the english context a deep historical connection between the grammatical or syntactical techniques of legislative drafting and the grammatical techniques of patrimonial property. the period from the sixteenth century onwards in which a profusion of charters, ordinances, proclamations and writs began to resolve itself into what we now recognise as the form of the statute (in large part through the agency of print) was also the period in which the early modern form of the patrimonial settlement was taking shape. treatises and decisions in the early modern period quite explicitly made the analogy between these two contexts of textual drafting. figuratively, both applications of drafting technique sought to convey or pass something into the future, by means of grammatical, syntactical, and textual switches that materialised future occasions or events into textual elements that could be grasped and arrayed in the present. the temporalities of suspension, reversion, and ‘for so long as’ that defined patrimonial estates and interests were ‘made of’ grammar. property, as an economic, symbolic, and ethopoietic substance, was materialised and articulated grammatically, and worked its way into the social according to the capacities of technical grammar to channel time. patrimonial settlements are a familiar part of the history of sex, gender, and power, precisely because the channelling of time was premised on sexual difference. with legislative drafting in mind, what is relevant here is the implication of gender in grammatical technique. the association can be illustrated by reference to the drafting techniques that were used to give married women what was then called ‘separate property’, a form that generates the drama in wilkie collins’ the woman in white.[footnoteref:2] a settlement might give a wife a power of appointment over ‘her’ property; that is, a right to select – ‘appoint’ – the beneficiaries. but the theory was that in exercising this power, the wife acted as the agent of the person who made the settlement; she was, as the lawyers put it, ‘a mere conduit pipe’. the writing by which she appointed beneficiaries was treated as if it had been a clause of the original settlement: ‘as if the limitation in that writing of appointment had been contained in [the] deed creating the power; for they take from the author of the power.’[footnoteref:3] so the ‘real time’ agency of the woman was erased, or rather eclipsed, by the inert, already-completed, temporalities that were fabricated by drafting technique. the figure of eclipse is clearly expressed in the lawyers’ distinction between ‘substance’ and ‘shadow’, between ‘the passing of the estate which is the substance of the deed [and] the manner how which is the shadow...’[footnoteref:4] [2: i highlight this novel partly because of the role in plays in marilyn strathern’s rediscovered feminist classic, before and after gender. sexual mythologies of everyday life (strathern and butler, 2016).] [3: southby v. stonehouse (1755) 2 ves. sen. 610, at p 612.] [4: case cited in counsel's argument in tomlinson v. dighton (1711) 1 p. wms. 149, at p 164.] here, substance and shadow were not people, they were primarily operations or documentary forms. and these operations brought into existence the gendered attributes that they operationalised. neither ‘he’ nor ‘she’ referred to a substantial person; the qualities and competences of the ‘shadow’ were strictly those that had to be assumed for this particular transaction, for this particular moment, in order for this grammatically-defined estate to ‘pass’ along a temporal channel that was already written into the settlement. in this mode of gender coding, ‘there is no consistent dichotomy, only a matrix of contrasts’, or ‘a prism that yields different patterns as it is turned’ (strathern, 1980, p. 177). the question of who or what turns the prism brings us back to the deep patriarchal logic of settlements, and also to the grammatical logic of legislation. even if i am wrong in suggesting that the technique of legislative drafting originated with the technique of drafting settlements, even if the kinship is only analogical, the analogy illuminates one sense in which legislative drafting techniques ‘have helped usher in specific legal and textual formations with attached concepts and ontologies that have travelled far and combined with other long-lasting bureaucratic and wider social understandings of gender’ (grabham, this issue). if grammar and syntax have the capacity to animate pronouns, and to generate and recombine the attributes that are associated with them, then experiments in ‘drafting otherwise’ might also involve working with alternative modes of grammatical animation, modes which traverse the binarism that is essential to conditional moods or tenses. it might also involve reimagining the locus of legislative authorship itself. doctrinally, legislative authorship is supposed to be merely instrumental, to efface itself in the service of a political purpose. however intelligent or creative it is, drafting always plays juridical ‘shadow’ to political ‘substance’. and drafting works instrumentally because language works instrumentally. to say, as do the legislative drafters, that ‘the medium is not the message’, is to understand technical drafting language according to ‘the theory of the postal system’ (siegert, 1999). the other side of that theory is the reality of a medial system that has already cued up the agencies of writers and readers. in the case of legislative drafting, the medial technology of grammar and syntax not only choreographs pronouns; it also interpellates the drafter into a particular authorial locus. the project of fabricating conditional futures locates the drafter themselves in the ‘time out of time’ that is generated by those conditional futures. engagement with the grammatical machinery might allow one not only to reinvent the modes of existence associated with pronouns, but also to retemporalise this moment of authorship, to open it up to the possibilities of collaboration, displacement, or ‘desubstantialisation’ that would come from renouncing the position of ministerial mastery that drafters are still compelled to adopt. it might also allow one to take on the ancestrally patriarchal logic of drafting as the project of transmitting semantic capital into the future. of course, legislation is also a political process, and judges are still the officially privileged interpreters of legislation, but with gender in mind experimentation with ‘legal form’ (to use emily’s phrase) might be just the place to begin to unfold the political potential of legislation. to return to the theme of medium and message, the fact that legislative texts now exist as digital forms might open them up to the kind of transformative modes of authorship – distributed creativity – that are exemplified in practices such as fan fiction. in particular, and although it works as pornography or ‘postpornography’, the genre of slash fiction offers a sense of how writing practices in the digital era can perform or ‘entextualise’ gender otherwise (willis, 2016). references siegert, b., 1999. relays: literature as an epoch of the postal system. translated by kevin repp. stanford university press, stanford. strathern, m., 1980. no nature, no culture: the hagen case, in: strathern, m., maccormack, c. (eds.), nature, culture, and gender. cambridge university press, cambridge, 174–222. strathern, m., butler, j., 2016. before and after gender: sexual mythologies of everyday life. hau books, chicago. willis, i., 2016. writing the fables of sexual difference: slash fiction as technology of gender. parallax 22, 290–311. __________________________________________________________________________________ 4 __________________________________________________________________________________ 5 davina cooper, emily grabham, flora renz introduction to the future of legal gender __________________________________________________________________________________ feminists@law vol 10, no 2 (2020) __________________________________________________________________________________ introduction to the special issue on the future of legal gender: exploring the feminist politics of decertification davina cooper, emily grabham, flora renz[footnoteref:1]* [1: * davina cooper: research professor in law, dickson poon school of law, king’s college london, uk; email davina.cooper@kcl.ac.uk. emily grabham: professor of law, kent law school, university of kent, uk; email e.grabham@kent.ac.uk. flora renz: lecturer in law, kent law school, university of kent, uk; email f.renz@kent.ac.uk. ] what might be the consequences if the state no longer legally classified people as female or male based on a sex registered at birth? we call this the “decertification” question. decertification refers to a situation in which state law steps back from recording, confirming, recognising, or standing behind sex/ gender[footnoteref:2] as formally attributed aspects of personhood. it is a question that lies at the heart of our esrc-funded project on the future of legal gender (flag), which began in may 2018.[footnoteref:3] [2: the currently contested language of sex and gender makes usage of both terms difficult as there is no basic consensus among critical activists and scholars. this research project foregrounds gender as a sociological concept that gives “sex” meaning, authority, and shape. flag recognises that different bodily qualities and attributes, including reproductive ones, contribute to how life is experienced, including through forms of oppression. the flag project also recognises how “sex” has come to function as a political and legal resource (some would say weapon) in the struggle to assert binary and immutable bodily differences. engaging with these usages, the project takes account of other research that questions the notion of coherent and fixed sexual difference. this latter research suggests that the qualities identified as making up the assemblage “sex” are provisional and changing, with social and technological processes combining with biological ones in ways that cannot be easily or usefully separated; that sex itself does not take a binary form; and that other bodily qualities (not conventionally aligned with sex) may, in different contexts, be more significant in shaping how social life is experienced. ] [3: alongside us, other project members are co-investigator, elizabeth peel, and research associates robyn emerton and hannah newman. the project ends on 31 march 2022.] our exploration of decertification is a response to two developments and one enduring feature of contemporary neoliberal countries, such as britain. the two developments are the move towards legislative convergence in how men and women are formally treated in legislation (substantive gender-neutrality) and the growing recognition, by public and other bodies, of people’s self-described gender identities. the enduring feature is the gendered character and asymmetries of social and institutional life. this gendered character is not fixed; nevertheless, gender remains an organising principle of society-making processes, giving rise to distinctly patterned norms, practices, and unequal social relations. given the conjuncture of these three trends, flag asks: is state withdrawal from formally registering, establishing, and assigning sex/ gender as an attribute of legal personhood an overdue reform? might decertification liberate people from the strictures of state-enforced sex/ gender? or is it, instead, a form of privatisation, withdrawing state responsibility for remedying gendered inequalities? this special issue explores these questions, drawing on research from the flag project. in this brief introduction, we sketch three key pillars of the research gender, law, and prefiguration. these provide foundations but also directions for the discussion that follows. we then introduce the five articles, each of which is followed by responses from two interlocutors. all the papers were initially presented at a colloquium at king’s college london in june 2019. we are very grateful to our discussants for their generous engagement. listed in the order they appear in this special issue, they are ruth fletcher, ambreena manji, christine quinan, jennifer fraser, kath browne, shona hunter, sumi madhok, vanessa munro, alain pottage, and helen xanthaki. we should stress that, at this stage of the project, our aim is not to draw definitive conclusions about decertification but to elicit discussion around some developing lines of analysis. these have coalesced around four primary research strands: exploring what decertification entails; addressing its implications for equality agendas, and for single-sex provision, in particular; exploring the craft and implications of statutory drafting for enacting new formalised gender settlements; and understanding wider public attitudes and feelings about legal reform. research on these four themes has involved over one hundred semi-structured interviews with service providers, municipal equality officers, lawyers and legal experts, government officials, trade unionists, school staff, ngo workers, sports and care sector workers, and members of different publics. in this special issue, we also draw on findings from a project survey that took place in the autumn of 2018, which generated over 3,000 responses (including over 1,000 qualitative responses as peel and newman, this issue, discuss). in addition, our analysis has benefited from comments, questions, discussions, and conversations across a range of fora, including public lectures, seminars and workshops with ngo and public sector staff, activists, academics, students, and others. the articles that follow explore different dimensions of decertification, and the reactions it has elicited. however, we should stress that flag is not an advocacy project. in this special issue, we do not argue for the state’s withdrawal from registering, confirming, or assigning sex/ gender. nevertheless, decertification characterises a reform pathway that is gaining relevance and force. in tasmania, australia, the legal introduction in 2019 of an “opt-in” approach means birth certificates no longer record sex unless applicants specifically request it. momentum for reform can also be seen in many governments’ formal or informal acceptance of people’s self-identified gender. while this has tended to be limited to two categories: female and male (women and men), third gender categories are also emerging – officially, informally, and somewhere in between – across a range of jurisdictions, making it likely that more governments will introduce law and policy in this direction (or at least consider it) over the coming years. together, these changes suggest that understanding some of the stakes, concerns, and implications of decertification for gender, law, and community decision-making and practice is important and timely. the first direction that flag faces is gender. this special issue traces the stakes and implications of different conceptions of gender. the conflict between sex-based rights advocacy and identity-based approaches to gender has come to dominate the political landscape; with the flag project also sometimes caught in the crossfire. given the tendency for public discussion and governmental discourse to understand gender through existing tropes of intelligibility, such as rights, interests, identities, selfhood, and groups, it is unsurprising that this division has monopolised debate. however, retaining a broader sense of the choices, divisions, and possibilities for gender politics is crucial – that there is more at stake than whether sexes/ genders are two or multiple; whether they are felt, chosen or imposed; and whether personal gender claims should be affirmed or resisted. questions that have emerged in our research foreground conceptual, strategic, temporal, and normative concerns – from questions about gender’s meaning and location (in bodies, discourse, social structures), to how gender relates to other social relations (including race, class, and disability), to understanding gender’s affects (including its harms and pleasures), to the political ambitions of social forces (for liberation, the meeting of needs and interests, new forms of subjectivity, or new worlds), to modes of political engagement (through policy, law reform, grass-roots activism, prefigurative projects), to the relationship between present strategies and other times (is the present a site where past inequalities must be countered, a space for imagining and enacting future hopes, or something else)? as a research project that is both critical and feminist, flag seeks to put these different questions and approaches into dialogue with each other as it carves out a space of inquiry that refuses to track current divisions. our analysis departs from narrations of gender that treat it as a property of subjects, as well as from narrations which understand it as a monolithic force imposed on sexed bodies. instead, we focus on conceptual accounts that foreground gender as a social phenomenon, shaped and rendered intelligible by other institutional features and relations, including capitalist and racialised globalisation processes. gender’s asymmetrical patterning affects bodies and subjects (even as it is also taken up and reworked by subjects). but gender also, importantly, contributes to how other institutions and aspects of social life are organised: from schools and sports to parliament, local government, and law. this social account of gender has been well-established in many areas of feminist scholarship; however, it has been passed over in recent conversations due to a growing tendency to approach gender as something that is subject-shaped – whether as an identity that people take up and give form to, or as something imposed on sexed bodies. at the same time, the articles in this special issue remain attentive to gender as a site of attachment, community, innovation, and dissent. gender may be claimed as a source of hierarchical power and control – highlighting what can be done to others because of the gender that one has (a gender that may also be forged through what is done to others). but gender is also claimed by people seeking to make lives in gendered society liveable, to advance radical political projects, and as a source of meaning that may outlive its currently coded hierarchy. different forms of contemporary and hopeful attachment sometimes jostle, and sometimes coincide, with relations of gendered detachment – from collective projects directed towards gender’s abolition to personal attempts to live without a gender identity. flag grapples with these issues, holding open for analysis questions already circulating such as whether gender should be abandoned or revised and whether the two may converge in conditions where revisions are so significant that gender in its current form no longer exists. these are also questions on which contributors to this special issue diverge. this collection of articles and commentaries collectively explores critical and interdisciplinary approaches to the future of legal gender, but they do not take a single common path. instead, the contributions forge tracks that diverge, fuse, and cross over each other, as they trace different approaches to gender’s meaning, presence, normativity, and hoped-for futures. the second direction that flag faces is law. feminist scholarship has been hugely influential in analysing law’s work in maintaining gendered relations of subordination, exploitation, and disadvantage. this work has focused primarily on women as the subordinated category, subject position, and class of concern, although more recently work has expanded to include other subordinated or marginalised gender statuses (and identities). this special issue aims to contribute to feminist legal scholarship, and particularly to work that critically interrogates law’s efforts and capacity to lessen gender-based inequalities. in many respects, our focus on decertification might appear to be narrow, removing the legal status of one specific category: gender/ sex that currently structures legal personhood, and that locates people in relation to diverse regulatory and distributive processes: from pensions and maternity provisions to single-sex schools and hospital wards. importantly, decertification, as we approach it, would not in itself remove state law from providing a formal remedial structure for discrimination on grounds of sex/ gender. what it would mean is that such claims would not have, and could not rely upon, a formal legal designation as female or male based on birth certificate records. in this way, sex/ gender would be placed on a par with other social relations that, in britain, are not currently treated as formalised aspects of personhood by state law, such as sexual orientation and race/ethnicity. given the enduring character of these relations of inequality, as well as others, such as class (that are also not recognised as shaping and composing legal personhood), we do not assume that decertification would undo the hierarchical or asymmetrical ordering work undertaken by governmental and other institutional processes when it comes to gender. at the same time, critical exploration of decertification poses important questions about the value of law, including anti-discrimination law, in undoing (or remedying) inequality. feminist legal scholarship has long expressed misgivings about the contribution that law and contemporary equality law instruments can make to lessening gender-based inequalities. from this perspective, the value in retaining formal sex/ gender status, as a tool to help tackle gendered inequalities, seems doubtful. yet, what has also emerged from our research is the value that many feminist policymakers, ngos activists, and others accord to law, arguing that it provides important practical tools and discursive justifications for countering women’s subordination even as others argue that a more expansive legal gaze is needed to incorporate other vulnerable gendered subjects. within this rocky and uneven legal landscape, our research project explores the stakes and anticipated effects of state law abandoning its practice of imposing sex/ gender classifications on subjects. equality law is, unsurprisingly, a central piece of this discussion. but the legislative use of gender-based terms (and here we include terms such as sex, male, woman, mother, father, sameand opposite sex) embraces a diverse range of legal fields and sectors far beyond equality law. thus, one challenge for this project, as a law reform project, is to explore how these different legal areas might be reformed if the formal language and status of sex/ gender could no longer be counted on. asking people their views on decertification reveals the value of a proposal such as this in bringing people’s attitudes, feelings, and understandings of law and law reform into sharp relief. responses to one specific pathway for legal change demonstrate something of people’s hopes and concerns about the future, about gender and, also, about law as it is. to explore the legal consciousness of different stakeholders and publics towards a proposal that, in britain, is not yet on the law reform table, even as some have felt at times that it might be drawing close, we draw on the political device of prefiguration. flag is a prefigurative law reform project in several respects. for those who advocate it, decertification itself constitutes a prefigurative approach to sex/ gender by treating its terms as if they no longer had the human significance necessary to warrant registration by the state. but decertification is prefigurative in another respect – namely, as a proposal that is addressed in this research project as if it were worthy of law reform scrutiny. to prefigure reform in this way allows a legal proposal associated with a time ahead to be rehearsed. this makes it possible to explore its potential, to identify its limits and challenges and, perhaps, to resolve at least some of them thereby easing the proposal’s “proper” arrival on the political agenda. it is important, however, not to overstate the value or feasibility of anticipating one possible legal future, given the suite of changes that are likely to precede or accompany its arrival. what decertification means or looks like in britain in 2020, as we conduct our research, cannot resolve the complexities that its political and legal assessment would face at a subsequent date. at the same time, considering decertification now provides an opportunity for some “ground-surveying” (if not necessarily “clearing”) – identifying challenges and issues that its formal progression would need to address and ideally resolve. but beyond its anticipatory, if critical, rehearsal, addressing decertification also allows it to materialise in the present. in other words, prefigurative law reform does not simply observe what could be as if it were a phantom visitor floating in from another time with no presence in the present. it also invites others to engage, interactively and collaboratively, with a law reform proposal, taking shape and existing as an academic research project. it is worth stressing that whatever consequences or effects this engagement has are unlikely to be those of accomplishment (certainly in the short term). discussing decertification does not, itself, bring such a measure into being or even necessarily make its realisation more likely. aside from the fact that flag is a project of exploration rather than of advocacy as we have said, the authority of an academic project is not the same as that of a government department (and even government departments may fail to accomplish the legislative programmes they advance). as a result, what our exploration of decertification can and will do is shaped – if not determined by its academic home and register. at the same time, this project takes place in a context where different bodies internationally – activist, policy, legal, political, and academic – are exploring sex/ gender deregistration reforms. while we do not know, at this stage, where these will lead, flag has been designed as a reflexive project. and so, in its final stages, we will reflect, explicitly and critically, on the relationship of our prefigurative law reform methodology to this vibrant, wider political terrain. we now turn to the five articles in this special issue. in the first article pulling the thread of decertification: what challenges are raised by the proposal to reform legal gender status davina cooper and robyn emerton explore the hopes, politics, and concerns that decertification raises as a mechanism for de-formalising sex/ gender. the article considers decertification, as a speculative reform initiative, in two primary ways. first, it asks what contribution, if any, might decertification make to a feminist politics intent on undoing gender-based hierarchies. second, it explores what decertification can offer as a methodological research thread that brings certain concerns, issues, and hopes into view. setting decertification alongside an alternative reform strategy of legally recognising multiple gender identities, the article explores the feminist benefits of decertification; the criticisms it faces; and different ways of responding to feminist concerns. here, the article turns to governmental strategies, such as privacy design and risk assessment, already being utilised to address the growing informalisation of sex/ gender, and the criticisms that can and have been made of these strategies. it then considers decertification’s relationship to more radical political projects intent on questioning and unsettling existing orderings. finally, the article considers the risks of androcentrism and gender-neutral law and argues for the need to embed decertification within a wider multiplex progressive agenda. the next article by flora renz focuses on the question of how decertification would affect single-sex services. in the challenge of same sex provision: how many girls does a girls’ school need? renz analyses some early findings from her socio-legal study of single-sex schools, drawing on semi-structured interviews with education policy experts and head teachers. renz addresses two interlinked questions about the challenges that decertification may pose to the provision of single sex-services generally, and education in particular: first, what does gender differentiation aim to achieve; and second, how do secondary education providers (and other service providers) currently approach the challenges that their differentiation policies face? renz sets out the reasons for single-sex education. she then summarises current legal rights, requirements, and debates concerning the inclusion of trans and non-binary pupils within single-sex schools, noting how adjustments to uniform policies and administrative practices are used as part of an ensemble of approaches that challenge gender stereotypes overall rather than focusing on individuals. she explores how ideas of ‘community’ and ‘inclusivity’ significantly shape interviewees’ approach to gender and its boundaries so that trans and gender non-conforming pupils are understood as belonging to the school community. presenting schools as a productive example of a ‘jurisdiction’, in which written gender rules interact with unwritten official practices, and a ‘case by case’ approach, schools’ capacity to adapt is highlighted. renz points to the ‘flexible and situational’ understandings of sex and gender that such schools can support, but also notes that different schools may take distinct approaches to equality act requirements. she concludes by returning to a set of questions about the definition and potential transformative effects of single-sex education for girls. elizabeth peel and hannah newman continue the work of exploring the impact of decertification on a wide range of constituencies. in gender’s wider stakes: lay attitudes to legal gender reform, they analyse the project’s attitudes to legal gender survey, which ran from october to december 2018, resulting in over 3,000 responses. whilst there is now a very established and vibrant field of feminist legal research in britain, social attitudes to legal gender are under-researched, as peel and newman point out. in their analysis of the survey data, they trace people’s everyday experiences and understandings of gender, legal gender status, and thoughts about reform. peel and newman adopt interpretive frameworks of cisgenderism and endosexism as routes into their analysis of the data to provide a social model for understanding people’s gender attitudes. cisgenderism refers to ideological accounts that understand gender as binary, where lived gender is assumed to align with the gender assigned at birth. endosexism refers to approaches to gender that erase the lived experiences of intersex people. these concepts provide touch points for peel and newman as they tease out the implications for law reform of layered, complex understandings and articulations of gender. in the fourth article – taking public responsibility for gender: when personal identity and institutional feminist politics meet, davina cooper explores the challenge that soft decertification poses. in soft (or de facto) decertification, sex/ gender continues to be legally registered, assigned and confirmed by the state, but public and other bodies act as if it were otherwise. while this could mean treating sex/ gender as if it was no longer a salient feature of personhood, the emerging tendency has been to treat gender as if it was anchored in other authoring or identification processes. as glimpses of de facto decertification emerge, this article explores its implications for equality initiatives hitherto focused on addressing the asymmetrically patterned lives of women and men. it considers new ways of understanding gender that are coming to the fore, and the challenges that arise for bodies engaged in equality governance in trying to address them. at the heart of the discussion is the question of responsibility the ethical, political, and legal obligation to pay attention or respond, that is anchored in different bodies’ capacity to undo or ameliorate social inequality and injustice. what does responsibility for gender entail when gender is treated as both institutionalised and self-determined; public and private? cooper focuses on two contexts where contemporary equality governance in britain addresses gender as a site of remaking and unmaking. the first concerns the front-stage initiatives and policies of public sector provision; the second concerns the back-stage scenes of organisational action, where informal decision-making arises. in both cases, taking responsibility for gender is far from straight-forward; yet, the essay argues for the importance of doing so. this is not just despite, but because of, the complex conditions that responsibility must grapple with when institutional gendered forms also exist as individual attachments. the final article in this special issue, exploring the textual alchemy of legal gender: experimental statutes and the message in the medium turns to the challenge of engaging with decertification as a feminist law reform project. one of the aims of the flag project is to produce an experimental statute decertifying gender in the law of england & wales. to this end, emily grabham focuses on the conceptual and discursive power of statutory text, tracing its complex co-articulation with changing gender norms. the article draws on empirical research – including interviews with legislative drafters, drafting experts, and feminist legal activists to explore the politics of writing an experimental feminist statute to decertify gender. grabham explores how apparently timeless expressions of sex/gender in statutes have shifted in response to social change and legal innovation. she also argues that the method matters: the act of writing an experimental statute pulls feminists into relationships, norms, professional debates, and epistemologies of expertise and governance around legislative drafting that are likely to fundamentally affect what we think is possible and what we can achieve. yet this can also help feminist scholars harness the power and potential of prefigurative feminist thinking. taken together, these five articles and the ten commentaries that accompany them convey something of the rich and complicated topology that decertification entails. typically, law reform projects start with a problem and then seek to identify the best solution; this research inverts the process – starting with one possible legal response to the problem of gender inequality in order to explore what its questioning and examination uncover and illuminate. whether decertification is desirable, from a feminist perspective, as a reform that would help to diminish gender’s social significance and force as a mode of hierarchical ordering remains an open question. what also remains an open question, and one increasingly important for this research, are the other legal, political and welfare developments that would need to accompany or precede decertification. by problematising the normalised status accorded legal sex/ gender, and researching one mechanism for undoing this status, we seek to contribute to the body of work that critically explores what gender means, the many ways it is enacted and changes, and law’s place and role in maintaining and transforming gendered norms and practices. the articles, and responses from our discussants, identify some of the analytical threads we are exploring. we make them public, at this mid-stage of our project, and welcome further and wider discussion – read on, and enjoy. __________________________________________________________________________________ 2 __________________________________________________________________________________ 1 “the swedish case of trafficking yttergren swedish gender equality for trafficked women? __________________________________________________________________________________ feminists@law vol 2, no. 1 (2012) __________________________________________________________________________________ swedish gender equality for trafficked women? radical official remedies and ethnic otherness åsa yttergren* introduction sweden is often described in terms of its high level of gender equality, which is associated with its institutionalized welfare. the quite radical official swedish ambition regarding gender equality is laid down in many public documents. within this context, prostitution is conceptualized as an extreme expression of gender inequality (see gunnarsson and svensson in this issue). the aim of this article is to provide an overview of the official swedish attitude towards trafficking in persons for sexual purposes (hereafter referred to as trafficking), to place this view in an international context, and also to critically analyze problems that arise when the official swedish objective of establishing gender equality is confronted with the issue of women who have been trafficked to sweden. what is the gender equality position in relation to women who are perceived as non-swedes or ethnically “other”? in this article, i refer to “the official swedish position” to mean the standpoint of the swedish parliament as expressed in terms of legislation, the preparatory work for legislation, or in other parliamentary or official government documents. the official swedish position regarding trafficking is closely bound up with its understanding of prostitution. as i describe below in some detail, social measures, including certain measures involving the police, are considered of great importance in combatting prostitution. this had already been highlighted in the 1970s and such measures are still regarded as the foundation for any other action against prostitution. thus, the swedish position is that social measures rather than criminalization are the main means of controlling prostitution. officially, the everyday occurrence of trading in sex and humans is regarded as an outcome of the imbalance of power between men and women, which represents a lack of gender equality (government bill prop. 1997:55, government directive dir. 2008:44, government committee sou 2010:49). in sweden, as in the european union (eu), the majority of eu member states and also the united nations (un), trafficking is condemned and legal proceedings are taken to eradicate the extensive trade in humans. procuring and trafficking are criminal offences. however, in contrast to the position in the majority of european states, sweden stands out in that it regards trafficking and prostitution in the same light. sweden was the first state in the world to criminalize the purchase, but not the sale, of sexual services: the demand for sex is regarded as the basis of both prostitution and trafficking. connected measures are required if prostitution and trafficking are to be effectively counteracted (government communication skr. 2007/08:167). according to the swedish government, combating trafficking and prostitution starts from a legal, social and gender-equality perspective (government communication skr. 2007/08:167). according to preparatory works and policies governing development assistance, the swedish approach to gender equality with reference to trafficking and prostitution is directed not only towards the domestic arena but also to other states. the aspiration for gender equality seems first to include swedes in the swedish context and secondly other ethnicities within their own native countries. in contrast, women trafficked to sweden are constructed as “others” who do not fit into either of these categories. the emphasis in the context of women trafficked to sweden is on combating transnational, organized crime, and in consequence gender equality is no longer a priority: the situation of these women is therefore regarded as some other state’s problem. this paper clarifies the official swedish position towards trafficking by analysing legislation, preparatory works and policy documents. in order to place the swedish official position in an international context i sketch the main international understandings of prostitution by referring to quite commonplace standpoints. however, the purpose is not to give an overview of the considerable body of literature that deals with the topic. i hope to move beyond the polarized positions of abolishing prostitution or normalizing it, which focus mainly on women in prostitution. issues often discussed in these positions are, for instance, the need to strengthen the rights of migrant workers in the sex industry (chapkis 2003), criticism of viewing women who migrate for work in the sex industry as victims with no agency (doezema 2000), the lack of free choice for women in prostitution (mckinnon 1993) or the view that prostitution, with or without the woman’s consent, always means sexual exploitation and oppression (barry 1995). i will analyze migration law and problems that arise when the swedish objective of achieving gender equality is confronted with the issue of women who have been trafficked to sweden. a point of departure is that gender ought to be taken into consideration at the moment legislation is framed. what is the outcome for women in terms of gender equality when they take up prostitution in sweden? addressing this issue does not mean playing down other problems. such problems include, for instance, the attempts in the palermo protocol to distinguish trafficking from legally accepted migration or from smuggling, and definitions of uncertain concepts within the protocol such as exploitation, deception, and consent. my interest however is in problematizing sweden’s self-image of having no or only a few gender inequality problems whilst other states are regarded as lagging behind. as i will argue, in the context of trafficking, swedish legislation fails to take gender and ethnicity into account which suggests that more might be done to eliminate gender bias within the three main global fields; the normative, the procedural and the cultural (unifem 2008/09). in the discussion below, i prefer the term “women in prostitution” to “prostitutes” because of the risk of equating “prostitute” with identity. i also use the terms “men in prostitution” and “men demanding paid sex” in order to make visible the part men play in prostitution. the international context of prostitution and trafficking the delineation of prostitution as either work or exploitation is a reflection of specific views, arguments, policies and legislation. internationally there are at least two competing theoretical views regarding prostitution; sex-work feminism and radical feminism (sullivan 2003). each view is divided into several subgroups but the most significant difference is between these two broad approaches to prostitution. within the so called “normalization” discourse prostitution is accepted while the “abolitionist” discourse opposes it (westerstrand 2008). in the normalization discourse prostitution is “sex work” and is understood, like any other employment, to be freely chosen by women who are therefore entitled to labour rights. this approach tends to emphasize the need for regulation to ensure that prostitution is treated in the same way as other work. normalization discourse makes a distinction between voluntary and forced prostitution – the latter is combatted, while prostitution as an institution is not questioned. women are understood to enter prostitution or other sectors of the sex industry voluntarily meaning that their choice to do so ought to be respected. thus, women’s right to safety and protection when working for their subsistence is a focal point for subgroups such as liberal feminists and pro-sex feminists (adams 2003, sullivan 2003, chapkis 2003). within the abolitionist stream prostitution as an institution is opposed by radical feminists and also by those who are concerned primarily with the negative consequences of prostitution, termed by westerstrand as the “contextualizing” branch (westerstrand 2008). for those taking these positions the distinction between voluntary and forced prostitution is of no relevance. if the aim is to improve conditions for women and girls, the attempt to determine who is forced into sex work and who chooses it voluntarily is the wrong approach (kelly 2003). prostitution is regarded as degrading to women and as causing grave psychological damage. the question is not whether women “choose” prostitution, but why men have the right to “demand that women’s bodies are sold as commodities in the capitalist market” (pateman 1988). radical feminists understand prostitution as a form of violence as it “constitutes a variety of male sexual violence towards women” (jeffreys 2008) but the contextualizing branch, which is closest to the swedish official view, is cautious about defining prostitution as violence (o’connell davidson 2006). trafficking and prostitution are part of a worldwide and constantly growing sex industry where trafficking is sometimes described as a more or less organised importation of women from poor regions to the rich western world. in the other direction, the rich areas of the world export those demanding paid sex to poor regions (månsson 2005). the views regarding prostitution mentioned above are also present when trafficking for sexual purposes is debated in practical and activist contexts. for instance, the global alliance against trafficking in women (gaatw) campaigns for legal rights and better working conditions for sex workers while the radical feminist approach corresponds to the views of the coalition against trafficking of woman (catw), (westerstrand 2008, anderson & o’connell davidson 2002). this division of views is illustrated by the fact that a new international agreement, the convention against sexual exploitation, was proposed in 1995 by us feminist kathleen barry. barry’s proposed convention criminalizes “customers” while rejecting “any form of penalization of the prostitute”. the proposal was supported by catw but opposed by gaatw (barry 1995: 329; see also dworkin 1983). trafficking is sometimes described as the “slavery of our time” as it arguably has some features in common with the western world’s slave-trading of africans (obokata 2006). however others are more cautious about such assertions (o’connell davidson 2008) and the rhetorical use of the term “sex slavery” in anti-trafficking discourses in order to restrict immigration or demand more rigorous policing of the borders, has also been criticized (chapkis 2003). whatever terminology is used, the annual revenue from human trafficking for various purposes has been estimated at ten billion us dollars (us department of state 2005). global trafficking for sexual purposes amounts to approximately 80 per cent of all human trade of which about 80 per cent of those trafficked are female (unodc 2009). in these circumstances it is no exaggeration to say that trafficking for sexual purposes is a gendered issue worldwide. roughly described, the traffic flows “from south to north, from poor to rich, from black and brown to white, and from female to male” (scheper-hughes 1998). this statement refers to trafficking in organs but also broadly covers the pattern of trafficking for sexual purposes. it is primarily women who are trafficked for sexual purposes while the great majority of those demanding and buying sex are men (us department of state 2008). the eu has recognized the “gender-specific phenomenon of trafficking” and indicated “that women and men are often trafficked for different purposes. for this reason, assistance and support measures should also be gender-specific where appropriate” (directive 2011/36/eu). the gendered nature of trafficking is also explicit in un approaches to the problem: one purpose of the palermo protocol is to “prevent and combat trafficking in persons, paying particular attention to women and children” (article 2 palermo protocol). sweden has its share of trafficking, primarily as a destination country for those trafficked (holmström & skilbrei 2008), and the gendered pattern also appears in the swedish context swedish national council for crime prevention 2011:19). court judgments show that those trafficked are mainly female, most perpetrators are male and perpetrators’ actions are usually directed against women. the number trafficked to sweden is estimated at 400-600 persons per year (national swedish police board 2004), though such statistics should be treated cautiously as they are dependent on the priorities of the government and police authorities (national swedish police board 2010). to understand the contemporary, official, swedish position towards trafficking it is essential to understand sweden’s view of prostitution since trafficking and prostitution are regarded as an inseparable entity. below i sketch out the official view concerning prostitution, where social welfare measures and police efforts are the absolute priority before criminalization. the official swedish view concerning prostitution social welfare measures come first, criminalization second measures to counteract prostitution and the trafficking of persons for sexual purposes on national, regional and local levels are a priority of swedish gender equality politics (government communication skr. 2011/12:3). the official swedish position towards trafficking is based on the official view concerning prostitution. prostitution is primarily counteracted by social welfare measures, including certain police efforts as described below, and only secondly by criminalizing the purchase of sexual services. nevertheless, it is the criminalization of demand that has attracted international attention; that social measures are considered of great importance when combating prostitution is noticed less frequently. women in prostitution are explicitly encouraged and supported by the police as well as by visiting social workers within the swedish welfare regime to abandon prostitution. preparatory work for the relevant legislation points out that the criminalization of the purchasing of sexual services is complementary to social welfare measures (government bill prop. 1997/98:55). the importance of such social measures was highlighted in the 1970s and forty years later the necessity for such measures is still emphasized and given priority (government committee sou 2010:49 and sou 1995:15). thus, the swedish position is that social services rather than criminalization are the main means of checking prostitution. the aim is not only to reduce the damage done by prostitution but rather to extinguish prostitution itself. this approach differs from that in countries with a liberal view of prostitution, where prostitution is regarded as something that must be accepted and controlled in order to reduce the harm it does. several official actors provide social measures directed to women in prostitution and men demanding paid sex as well as to children and young people in prostitution. the overall purpose of social welfare measures is to support and help both men and women to escape prostitution, whether they are the exploiters or the exploited. the swedish national board of health and welfare has the overall responsibility for following the extent and progress of prostitution in sweden (government bill prop. 1997/98:55). the police authorities state that there are about 300 persons engaged in street prostitution in the three largest swedish cities and at least that number who advertise through the internet. one internet search, for instance, produced slightly more than 300 sellers of sexual services of whom 18 per cent were men. ethnicity was found to be an important factor in swedish prostitution when marketing sexual services (swedish national board of health and welfare 2007). for other parts of sweden, proximity to the commercial sex markets of adjacent countries is important and migration interacts with prostitution in several regions. this is especially the case in the north of sweden which is close to russia, and in the south, because of its proximity to the rest of europe. most of the precautionary and caring measures aimed at women and men in prostitution are provided by the social welfare services of each municipality. the municipality has the responsibility to support and help people who are permanently, temporarily, legally or illegally in its area (social services act 2001:453). in the 1970s specific prostitution groups were constituted in stockholm, gothenburg and malmö in order to help both exploitative men and exploited women to leave prostitution. these groups have been active ever since and are engaged in outreach programmes on the streets but also on the internet aiming to motivate and support those engaged in prostitution to stop. they provide therapeutic and psychosocial support, and have a policy of zero tolerance towards prostitution (government committee sou 2010:49). for about the last ten years the social welfare services in the three cities have directed their work particularly to demanders in order to change their behaviour. (government committee sou 2010:49). the swedish government has instructed the swedish national board of health and welfare to evaluate and develop social measures directed to both potential and active buyers of sex and women in prostitution (government communication skr. 2007/08:167). since 1997 the national police have the comprehensive function of reporting nationally to the government regarding trafficking in women (government bill prop. 1997/98:55). the mandate was explicitly given in the action plan against prostitution and trafficking in persons for sexual purposes (government communication skr. 2007/08:167). in stockholm, gothenburg and malmö most of the operational police work directed towards prostitution and criminality linked to prostitution is carried out by a number of specialized groups, while in other parts of sweden combatting prostitution falls within the bounds of regular police activity. the police work is directed towards the perpetrators of trafficking, procuring and purchasing of sexual services. the police efforts target both outdoor and indoor prostitution and also marketing and sales on the internet. when patrolling the streets the police have a preventive approach, informing both men and women in prostitution about police fieldwork. for many women in prostitution the very presence of the police on the streets means security. the police cooperate with both social workers in the field and the national health service (national swedish police board 2010, government committee sou 2010:49). criminalization of procuring, trafficking and purchasing of sexual services from 1812 until 1918 prostitution was controlled and sanctioned by the swedish state. once a week the identity and the bodies of women in prostitution were inspected as they were regarded as disease carriers (swanström 2000, 2006). prostitution per se has not been prohibited in sweden since 1918 (jareborg 1979). the issue of criminalizing prostitution was raised in the 1970s when the most extensive government committee report ever on prostitution was presented. prostitution was regarded as incompatible both with ideas about individual freedom and attempts to achieve gender equality. however, on this occasion no proposal to criminalize prostitution was actually made; instead other solutions were emphasized with the aim of reducing prostitution, in particular, both legally regulated and non-regulated social welfare measures (government committee sou 1981:71). contemporary legislation has its roots in this report which presented the experiences of women in prostitution, of those demanding and buying sex, and those of pimps also. the interviews created an understanding of prostitution in historical, economic, cultural and gendered terms (ekis ekman 2010). in the official swedish view trafficking and purchasing of sexual services are now seen as extreme expressions of gender inequality. swedish gender equality politics is founded on a gender system analysis about unequal power relations between men and women on both individual and structural levels (see gunnarsson and svensson in this issue, hirdman in government committee sou 1990:44 and also government committee sou 1995:60, government bill prop. 1993/94:147). the structural understanding of gender equality is explicitly expressed in preparatory work regarding the swedish criminalization of acts violating the individual’s integrity in order to gain sexual, financial or other advantages or satisfaction. combatting trafficking and prostitution is regarded as a way of targeting women’s subordination. from this point of departure the social and human costs of prostitution outweigh any eventual individual voluntary participation in prostitution. it is not denied that women might sometimes choose prostitution as a source of income. however, it is not the women in prostitution who are the focus, but the men who demand sex from them. whether women really choose or do not choose prostitution is regarded as an irrelevant or secondary issue and the distinction made between voluntary and forced prostitution has no relevance. from the official swedish point of view the distinction appears quite eccentric as females are neither regarded as so-called sex workers nor saleable items available in a free market economy. being in prostitution is regarded as being subject to another person’s power, lust and desire and not carrying on a legitimate profession. sweden subscribes to a free market economy but opposes the idea of prostitution as one of its sectors because of the unequal positions of women in prostitution and men demanding paid sex. the women’s peace reform in 1998 recognized the imbalance in power between the sexes. prostitution is described as being closely related to men’s violence against women and both are seen as expressions of gender inequality (government bill prop. 1997/98:55). both prostitution and men’s violence against women are seen as serious structural hindrances to social equality, gender equality and the enjoyment of human rights by those subjected to trafficking or prostitution. the right to decide over one’s own life and body is regarded as being seriously violated since human dignity is reduced to a market value (government communication skr. 2007/08:167). the aims of the penal code in establishing liability for both the procuring and purchasing of sexual services are to combat prostitution and to assert its lack of social acceptance because of the serious harm it does to both individuals and society (government committee sou 1995:15, government bill prop. 1997/98:55). it is said that gender inequality will remain unattainable as long as men sell, buy and exploit women. prostitution is regarded as incompatible with societal struggles for gender equality and men buying sex from women is a phenomenon unworthy of a gender-equality state (government bill prop. 1997/98:55). in support of this view, sweden has implemented the palermo protocol from 2000, which addresses trafficking and offers the first definition of trafficking in international law. it addresses “the exploitation of prostitution of others and other forms of sexual exploitation” but “only in the context of trafficking in persons” (general assembly a/55/383/add.1). these terms are not defined in the protocol “which is therefore without prejudice to how states parties address prostitution in their respective domestic laws” (general assembly a/55/383/add.1). obviously the protocol does not take a standpoint against prostitution as an institution. on the contrary, it is up to the each state party how it will address prostitution nationally. in contrast to the ambiguity in the protocol on the relation between prostitution and trafficking, the official swedish view is that the very presence of prostitution motivates traffickers to trade in human beings. the swedish construction of any crime as an offence against either the public or the individual’s interest is important since there are no individual victims of crime against the public (heuman 1973). however, this distinction has a mainly procedural significance and there are, consequently, differences in a procedural sense between women exposed to trafficking and women exposed to procuring and purchasing of sexual services (government bill prop. 2003/04:111). procuring criminalizing those utilizing another person’s temporary sexual relations can be a way of combatting prostitution. typically the perpetrator of procuring is a pimp. the wording of the swedish penal code’s liability for procuring is very similar to that in the regulations existing in other european states (transcrime 2005). unlike trafficking, there is no requirement in the construction of the crime stating that a person must use improper means to subject another person, such as violence and threats. procuring is primarily constructed as an offence against public interests (government bill prop. 2004/05:45). during the period 2008-2010 there were 103 reports on “trafficking-like crimes”, that is, when a person in sweden is assisted by a person abroad who organises the transfer of women to sweden where they are then ruthlessly exploited in prostitution. the offenders in 25 cases were prosecuted; 19 perpetrators were subsequently convicted of procuring (swedish national council for crime prevention 2011:19, government bill prop. 2004/05:45). trafficking in persons for sexual purposes in 2002 the swedish parliament passed the legislation which criminalized national trafficking in persons for sexual purposes; this was expanded in 2004 to cover several forms of human trafficking for other purposes whether committed nationally or across borders (penal code 2002:416, 2004:406 and government bill prop. 2001/02:124, prop. 2003/04:111). according to the palermo protocol a person’s consent to sexual exploitation is of no relevance when improper means such as violence or coercion have been used. thus, a trafficker does not escape criminal liability if a woman has consented to be trafficked. this is also reflected in swedish law: it is impossible to consent to be sexually exploited if the perpetrator has acted improperly, as stated in the penal code (24:7). thus trafficking is constructed as an offence against the individual’s liberty and peace (government bill prop. 2009/10:152, prop. 2001/02:124). from 2008-2010 six persons were convicted of trafficking (swedish national council for crime prevention 2011:19). because of the difficulty of proving the element of “improper means”, perpetrators are often found guilty of procuring, rather than trafficking. (government bill prop. 2004/05:45). this is obviously problematic, since procuring is a less serious violation (penal code 2010:371, government bill prop. 2009/10:152, government committee sou 2008:41). prohibition of the purchasing of sexual services deterring men from buying sex is regarded as a way of reducing prostitution. demand is addressed by the criminalization of the purchase of sexual services, but women in prostitution do not risk legal repercussions. when the legislation to criminalize purchase of sexual services was adopted in 1998 sweden was the first country in the world to address the role of male demand for prostitution. in the swedish context the term “demand” encompasses men’s demand for paid sex, not an employer’s demand for cheap and exploitable labour in the sex industry (anderson & o’connell davidson 2002). the relation between the “seller” and the “buyer” is not regarded as in business but as a relationship where a stronger party sexually exploits a weaker party. the exchange of sex for money is mainly guided by the demanding party wanting to satisfy their sexual drive (government bill prop. 1997/98:55, ekberg 2004). the government committee originally proposed criminalization of both selling and buying sex (government committee sou 1995:15), however, this proposal was rejected. only buying, not selling, sex was in the end criminalized since (it was argued) women would not be eager to leave prostitution if it would mean in practice that they would have to admit they were criminals when they sought help to leave. the committee argued that criminalization in sweden provides encouragement to global groups which are attempting to counteract prostitution and, furthermore, that it will make sweden a less attractive place for organized prostitution (government bill prop. 1997/98:55). the principal rule is that acts committed abroad by a swedish citizen or by an alien with right of residence in sweden will be subject to swedish law. swedish courts therefore have the competence to pass sentence on such acts, on the condition that the act is also criminalized where it was committed (penal code 2:2). however, this aspect of the swedish jurisdiction has been criticized, especially in relation to trafficking which is often transnational, but not always criminalized. the condition has recently been cancelled regarding all forms of trafficking (penal code 2010:399), but not regarding the purchasing of sexual services, meaning that swedish men or those with a right of residence who engage in trafficking can be prosecuted in sweden. it has also been proposed that this condition, that the act be criminal where it was committed, ought to be abolished in the case of purchase of sexual services, an approach taken by norway in their legislation. such crimes are constructed as an offence against the public interest, wherever committed (government bill prop. 2004/05:45). initially the penalties for purchasing sexual services ranged from a fine which is proportional to a person’s income to imprisonment for up to six months. in most cases the perpetrator was sentenced to a fine (government committee sou 2010:49). from 1 july, 2011 the maximum penalty was raised to imprisonment for one year in order to enable more nuanced assessments of the penal value considering the widely differing circumstances in cases of purchasing sexual services. for instance, buying sex from persons in exposed situations, such as victims of trafficking, should be judged more severely than some other offences (penal code 2011:217, government bill prop. 2010/11:77). the official swedish view – short summary and examples of criticism the official swedish policy on prostitution can be characterized as a contextualizing approach to the issue (westerstrand 2008). it opposes prostitution as an institution and counteracts it, for instance by criminalizing the purchase of sexual services. there is, moreover, no differentiation between voluntary and forced prostitution. as i have explained, the position is based on a structural and ideological standpoint which recognizes the imbalance of power between the sexes (government bill prop. 1997/98:55). the official approach differs from that which takes the existence of prostitution for granted and, from that standpoint, argues for better conditions for women in prostitution, for instance by contesting understandings of prostitution in which sex workers are pressured to embody negative discourses about their profession (sullivan 2003: 79). such a “sex worker” approach is rarely promoted in the swedish parliament but there are nonetheless networks which claim labour rights for sex workers. similar positions can also be found amongst a few swedish academics who understand the official swedish view as a radical or socialist feminist position. petra östergren, for instance, advocates a feminism that is positive towards sex and demands labour rights for sex workers (2009). however, the understanding of the official swedish position as a radical feminist position has no rationale in legislation or preparatory works, which see the issue of prostitution in terms of its social cost and as related generally to violence against women. another academic commentator, susanne dodillet, criticizes those swedish politicians and social workers who describe prostitutes as victims with, according to her, no will. she also criticizes the politicians for not having listened to the prostitutes’ own voices. given the history of the legislation that is quite an astonishing statement. as indicated above, the most extensive government report on the issue which formed the basis for the current approach, included interviews of both women and men in prostitution. dodillet also omits from her critique the impact of the gender system analysis on the official swedish position as the basis for gender-equality politics in general, including various measures to reduce gender inequality, that is, the criminalization of the purchase of sexual services (dodillet 2009). from another point of view the commercial tone of the penal code, which uses terms like “buy” and “sexual services”, has been questioned. such language politically neutralizes the acts of both traffickers and buyers of sex and leads to obvious sexual exploitation remaining unrecognized (niemi 2010). the terminology has been specifically considered in the legislative process. one government committee proposed that the crime of trafficking should be defined as being for the purposes of “sexual exploitation” since prostitution was regarded as the most typical example of sexual exploitation (government committee sou 2001:14). however, the government has dismissed the suggestion because of uncertainty about whether the law was really ready for such a term (government bill prop. 2001/02:124). the government has recently formally evaluated the criminalization of the purchase of sexual services. according to police and social workers traffickers avoid sweden because of this prohibition, because of its effect in reducing overall demand (national swedish police board 2010). criminalization is regarded as an important tool in preventing and combatting both prostitution and trafficking. the number of women involved in street prostitution has halved and the transfer of prostitution from the street to the internet is no greater than in other countries. criminalization has also had a normative effect. in 1996, before criminalization, 69 per cent of swedish citizens were against it; today about 70 per cent (in three different studies) are pro-criminalization and it has a deterrent effect on potential purchasers of sex (government committee sou 2010:49). ten years after the act was adopted in 1999 the number of purchasers of sex has decreased from 13.6 per cent to 8 per cent of the population (kuosmanen 2008). gender equality for women trafficked to sweden? the discussion so far has illustrated the strength of gender-equality politics and law in sweden, with the penal code being used as one tool for achieving gender equality. sweden also aims to promote gender equality in other countries, for instance when participating in international development assistance (government communication skr. 2007/08:109) where amongst other things, human rights, gender equality and non-discrimination are highlighted. the government has identified a handful of global challenges as being particularly important for achieving a just and lasting global development. these central challenges include counteracting all forms of oppression and combatting human trafficking (government bill prop. 2002/03:122, government communication skr. 2007/08:89, the swedish cabinet office and the ministries 2010). the swedish ambition regarding gender equality in other states is based on the outcomes of un international conferences, especially cairo 1994 and beijing 1995. arising from gender analysis concerning unequal power relations between men and women on both individual and structural levels, the swedish objective is to persuade other states to alter their power structures, and to question and change notions of both male and female sexual behavior. some strategic areas have in particular been indicated, such as increased male responsibility for gender equality, strengthening the power of women, challenging gender-based violence, trafficking and prostitution. for instance, the swedish international policy for sexual and reproductive health and rights published by the swedish ministry for foreign affairs (2006), describes societal norms as male, manifested in domination, aggression, heterosexuality and an uncontrollable sexual drive. un resolutions empowering women are emphasized in the government’s foreign policy and the fundamentals of human rights and personal and physical integrity are evoked (commission on human rights, e/cn.4/res/2005/84 and e/cn.4/res/2005/41). the swedish government states that women’s and girl’s human rights are disregarded by many (other) states and promotes an extensive implementation of cedaw (swedish cabinet office and the ministries 2009). thus, swedish efforts to achieve gender equality do not stop at the national borders. against this backdrop one might assume that the gender equality ambition would be both relevant and present when women are trafficked to sweden. so what is the swedish response, in gender equality terms, to foreign women trafficked to sweden for sexual purposes? since october 2004 a woman trafficked to sweden might be granted a residence permit with a limited duration of six months if she meets certain criteria (aliens act 1989:529, 2005:716, 2004:206). firstly, a residence permit must be regarded as essential for initiating any legal proceedings against the trafficker. secondly the “foreigner” must clearly show that she is willing to cooperate with the public authorities. thirdly the “foreigner” must have severed every connection with the suspect and fourthly, issues of public order and security must be taken into consideration as there may be an obstacle to the granting of a residence permit for a limited duration to the trafficked woman (aliens act 2007:322). the application for a residence permit for the trafficked woman is not in her own hands but in those of the leader of the inquiry into the trafficker. an even more limited residence permit of thirty days is also available upon application by the inquiry leader, if it is necessary for the legal proceedings and if there is no risk to public order and security. the purpose of this permit is to give the “foreigner” time to recover and decide whether or not to cooperate with the authorities. in both cases the application is heard by the migration board, and the right to appeal its decision is reserved to the inquiry leader (aliens act 2007:322). according to preparatory work for this legislation, the qualification criteria are meant to ensure that no one misuses their presence on swedish territory (government bills prop. 2003/04:35 and prop. 2006/07:53). the complexity of trafficking is acknowledged in the preparatory work for the specific rules of the aliens act, and the relation between the trafficker and the trafficked woman is recognized as a power relation. however, it is open to question whether the qualification criteria fully reflect this complexity. for instance the requirement that all connection with the suspect be severed may ignore risky consequences of doing so in terms of the woman’s own or her relatives’ existence. the supposition seems to be that it will be possible for the (power) relation to be broken within a short time. on the other hand trafficked women are understood as being unable to make decisions about whether or not to cooperate with the swedish public authorities, and are given time to think things over. none of these presumptions seem to accord with the official swedish knowledge about power as explicitly expressed in several preparatory works, for instance regarding the criminalization of the purchasing of sexual services in order to combat prostitution and achieve gender equality. instead, the qualification criteria for the specific rules of the aliens act seem to give the fullest priority to the state’s interest in preventing any misuse of swedish territory. in the context of women trafficked to sweden the official swedish understanding of prostitution and trafficking seems to fade away, to be replaced by a security context which discards such fundamentals as gender equality and anti-discrimination. what remains for trafficked women in sweden? they are eligible for social welfare assistance for a period of thirty days, or maybe six months but only if they cooperate with authorities investigating instances of trafficking. it seems that official efforts to achieve gender equality do not apply in the context of women trafficked into swedish society. one might say that women trafficked to sweden are present in swedish society because swedish men demand and consume them. they belong and should not be subjected to societal ejection and degradation or be tolerated only as long as the swedish state tolerates their presence (marmo 2008). arguably then, the swedish ambition of achieving gender equality includes women both within and far from its own territory but excludes those trafficked to sweden. the specific rules of the aliens act mean that sweden, as regards women trafficked to the country, abandons its contextual approach which focuses on men demanding paid sex. when women perceived as non-swedes or ethnically “other” are trafficked to sweden, and are actually present on its territory, the official swedish response is much like the approaches of most eu member states. the regulation of limited-duration residence permits is in accordance with the swedish state’s interest. it is not an expression of sweden’s goal of promoting gender equality which, in fact, seems to play a surprisingly insignificant role in this area. this position does not differ from those of most european states, on the contrary, it is a measure that meets the ec directive regarding residence permits issued to third-country nationals who are victims of trafficking, and who cooperate with the proper authorities (council directive 2004/81/ec). concluding remarks the understanding of prostitution and trafficking as interconnected and extreme expressions of gender inequality determines the official swedish view of these issues as expressed in legislation, and in particular by the criminalization of the purchase of sexual services. the criminalization of the purchase of sexual services is a rare approach, both within the region and globally. the vast majority of eu member states prohibit neither indoor nor outdoor prostitution and the purchase of sexual services is not criminalized. some states intervene by prohibiting brothels while in others female prostitutes are registered and/or subject to recurrent health screenings. apart from sweden, eu member states such as ireland, lithuania and malta are classified as abolitionist states (transcrime 2005). however, the classification of sweden as an abolitionist state must be understood in light of the fact that it is only the acts of those demanding and buying sex which are criminalized, not the acts of women in prostitution. the criminalization of men’s demands for paid sex is not unique to sweden, since both norway and iceland criminalized the purchasing of sexual services in 2009. the norwegian legislation is also more far-reaching than the swedish since it criminalizes norwegians purchasing sexual services abroad. finland has also taken steps in this direction by criminalizing the purchase of sexual services if this entails exploitation of a person subjected to trafficking or procuring. sweden, norway and iceland seem to understand prostitution, trafficking in women, exploitation and vulnerability as four aspects of the same phenomenon. denmark is the nordic exception, as neither the buying nor the selling of sexual services is criminalized or prohibited in any way. even if several nordic countries have similar regimes the national policies are based on different ideological and empirical contexts combined with different social measures (skilbrei and holmström 2011). the official swedish policy regarding gender equality is far-reaching, and in many respects, a success. it has resulted, for instance, in a change of attitude among the population, towards a position approving the criminalization of purchasing sex. the numbers in prostitution in sweden and also the numbers trafficked to sweden indicate that the swedish approach might be fruitful. but it is not a total success. in the light of its radical ambition concerning gender equality both in its own territory and in other states, one might assume that these efforts would also embrace women who are trafficked sweden. however, as we have seen, this is not the case. there is a gap between gender equality efforts on the one hand and criminal and alien law regarding women trafficked to sweden on the other. the official swedish position regarding gender equality, which is carefully explained in preparatory work and other state documents, is not applicable when women perceived as non-swedes or ethnically “other” are demanded, consumed and exploited in sweden. when trafficked women enter swedish territory it seems as though efforts for gender equality are sidelined and seem to become invalid. simultaneously, the swedish state’s radical approach dissolves into the eu security approach. the multi-violated others become mere instruments in the state’s prosecution of crime. they are desirable in the swedish judicial system since they are witnesses to crime. when they have fulfilled their instrumental function, and the traffickers have eventually been sentenced, the women become undesirables in swedish society. thus, the official swedish position regarding trafficking in persons for sexual purposes, based on gender equality considerations, can be seen as successful but the swedish response to women who are perceived as non-swedes or ethnically “other” does not fit in with this approach. in this respect the official swedish approach is inconsistent. trafficked women seem to be regarded neither as victims subjected to criminal offences by the perpetrator nor as women covered by the swedish “territorial” gender equality politics. nor are they perceived as agents able to make their own decisions. primarily, trafficked women are perceived as instruments to be used in the interest of the state, they are present on swedish territory but are not the target of the ambition to achieve gender equality since they are perceived as non-swedes or ethnically “other”. references adams, niki, anti-trafficking legislation: protection or deportation? feminist review, no. 73, 2003, pp. 135-139. anderson, bridget, o’connell davidson, julia, trafficking – a demand led problem? a multi-country pilot study, save the children sweden 2002. barry, kathleen, the prostitution of sexuality: the global exploitation of women, new york university press, new york 1995. chapkis, wendy, trafficking, migration, and the law: protecting innocents, punishing immigrants, gender and society, vol. 17, 2003, pp. 923-937. department of law, umeå university, remissyttrande av juridiska institutionen, umeå universitet, över betänkandet sou 2010:49 förbud mot köp av sexuell tjänst. en utvärdering 1999-2008, 22 october 2010 [comments on the official report prohibition of purchase of sexual services. an evaluation 1999-2008]. dodillet, susanne, är sex arbete? svensk och tysk prostitutionspolitik sedan 1970-talet, vertiga akademika, stockholm 2009 [is sex work? the swedish and the german policies on prostitution since the 1970s]. doezema, jo, loose women or lost women? the re-emergence of the myth of ‘white slavery’ in contemporary discourses of ‘trafficking in women’, gender issues, vol. 18 no. 1, 2000, pp. 23-50. dworkin, andrea, “feminism: an agenda” in letters from a war zone, secker & warburg, london 1988. ekberg, gunilla, the swedish law that prohibits the purchase of sexual services, violence against women, vol.10 no.10, october 2004, pp. 1187-1218. ekis ekman, kajsa, varat och varan. prostitution, surrogat-mödraskap och den delade människan, leopard, stockholm 2010 [to be or being a commodity. prostitution, surrogate motherhood and the divided human being]. heuman, lars, målsägande, pa norstedt & söners förlag, stockholm 1973 [victim of crime]. holmström, charlotta, skilbrei, may-len (eds.), prostitution i norden, forskningsrapport, köpenhamn 2008 [changing nordic prostitution markets: an introduction]. holmström, charlotta, skilbrei, may-len, nordiska prostitutionsmarknader i förändring: en inledning, in holmström & skilbrei 2008, pp. 9-36 [changing nordic prostitution markets: an introduction: an introduction]. jareborg, nils, brotten i, p.a. norstedt & söners förlag, lund 1979 [the crimes i]. jeffreys sheila, the idea of prostitution, spinifex press, melbourne 2008. kelly, liz, the wrong debate: reflections on why force is not the key issue with respect to trafficking in women for sexual purposes, feminist review, no. 73, 2003, pp. 139-144. kuosmanen, jari, tio år med lagen. om förhållningssätt till och erfarenheter av prostitution i sverige, in holmström & skilbrei 2008, pp. 357-382 [ten years with the prohibition of buying sex: approaches and experiences of prostitution in sweden]. mackinnon, catharine, prostitution and civil rights, michigan journal of gender & law, vol. 1, 1993, pp. 13-31. månsson, sven-axel, mäns könsköp – en meningsbärande handling på flera nivåer, i rapport från nordisk journalistkurs 2005, pp. 25-40 [men’s buying of sex – an act of meaning on several levels]. marmo, marinella, la forgia, rebecca, inclusive national governance and trafficked women in australia: otherness and local demand, asian journal of criminology, vol. 3, 2008, pp. 173-191. national swedish police board, handel med kvinnor, lägesrapport 6 1 januari-31 december 2003, rps rapport 2004:2, rkp kut, kriminalunderrättelsetjänsten 2004 [status report 6: trafficking in persons for sexual purposes]. national swedish police board, människohandel för sexuella och andra ändamål 2009, lägesrapport 11, rps rapport 2010:5, rikspolisstyrelsen, rikspolisavdelningen september 2010 [status report 11: trafficking in persons for sexual purposes]. niemi, johanna, what we talk about when we talk about buying sex, violence against women, vol. 16 no. 2, 2010, pp. 159-172. obokata, tom, trafficking of human beings from a human rights perspective: towards a holistic approach, martinus nijhoff publishers, leiden 2006. o’connell davidson, julia, prostitution, power and freedom, polity press, cambridge 2006. o’connell davidson, julia, trafficking, modern slavery and the human security agenda, human security journal, vol. 6, spring 2008, pp. 8-15. östergren, petra, sex och straff. är sverige är det moraliskt mest högstående landet i världen? och hur är det med sexköps lagen – är det en lag som går att fylla med valfria innebörder, önskningar och förhoppningar? voltaire 2009, pp. 18-22 http://www.petraostergren.com/upl/files/51902.pdf [sex and punishment. is sweden morally the most superior country in the world? what about the criminalization of the purchase of sexual services – is it open for optional meanings, wishes and hopes?]. pateman, carole, the sexual contract, polity press, cambridge 1988. scheper-hughes, nancy, organ trade: the new cannibalism, new internationalist, no. 300, april 1998. skilbrei, may-len, holmström, charlotta, is there a nordic prostitution regime? crime and justice, vol. 40 no. 1, 2011, pp. 479-517. sullivan, barbara, trafficking in women: feminism and new international law, international feminist journal of politics, vol. 5, 2003, pp. 67-91. swanström, yvonne, policing public women. the regulation of prostitution in stockholm 1812-1880, atlas, stockholm 2000. swanström, yvonne, offentliga kvinnor. prostitution i sverige 1812-1918, ordfront, stockholm 2006 [public women. prostitution in sweden 1812-1918]. swedish cabinet office and ministries, pluralism. policy för sveriges stöd till det civila samhället i utvecklingsländer inom svenskt utvecklingsarbete, regeringskansliet 2009 [pluralism. policy for swedish aid to civil society in developing countries within swedish development co-operation]. swedish cabinet office and ministries, gemensamt ansvar för global utveckling, regeringskansliet 2010 [shared responsibility for global development]. swedish crime victim compensation and support authority, remissyttrande av brottsoffermyndigheten över betänkandet sou 2010:49 förbud mot köp av sexuell tjänst. en utvärdering 1999-2008, 29 october 2010 [comments on the official report prohibition of purchase of sexual services. an evaluation 1999-2008]. swedish ministry for foreign affairs, sveriges internationella politik för sexuell och reproduktiv hälsa och rättigheter, utrikesdepartementet 2006 [the swedish international policy for sexual and reproductive health and rights]. swedish national board on health and welfare, kännedom om prostitution 2007, socialstyrelsen 2007 [knowledge of prostitution 2007]. swedish national council for crime prevention, polisanmälningar rörande människohandel för sexuella ändamål åren 2008-2010, brå, rapport 2011:19 [reports to the police on trafficking in persons for sexual purposes for the years 2008-2010]. transcrime, study on national legislation on prostitution and the trafficking in women and children, final study executed by transcrime for the european parliament, policy department c – citizens’ rights and constitutional affairs, august 2005. us department of state, trafficking in persons report 2005, june 2005. us department of state, trafficking in persons report 2008. june 2008. westerstrand, jenny, mellan mäns händer. kvinnors rättssubjektivitet, internationell rätt och diskurser om prostitution och trafficking, uppsala universitet, uppsala 2008 [between men’s hands. women’s legal subjectivity, international law and discourses on prostitution and trafficking]. official documents un protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the united nations convention against transnational organized crime 2000 (palermo protocol). commission on human rights, the protection of human rights in the context of human immunodeficiency virus (hiv) and acquired immunodeficiency syndrome (aids), e/cn.4/res/2005/84. commission on human rights, elimination of violence against women, e/cn.4/res/2005/41. general assembly, interpretative notes for the official records (travaux préparatoires) of the negotiation of the united nations convention against transnational organized crime and the protocols, a/55/383/add.1. unodc, global report on trafficking in persons, united nations office on drugs and crime 2009. unifem, progress of the world’s women 2008/09, who answers to women? gender and accountability. eu council directive 2004/81/ec of 29 april 2004 on the residence permit issued to third‑country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities. directive 2011/36/eu of the european parliament and of the council of 5 april 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing council framework decision 2002/629/jha. government bills prop. 1993/94:147 delad makt, delat ansvar [shared power, shared responsibility]. prop. 1997/98:55 kvinnofrid [women’s peace]. prop. 2001/02:124 straffansvaret för människohandel [criminal liability for trafficking]. prop. 2002/03:122 gemensamt ansvar: sveriges politik för global utveckling [shared responsibility: the swedish policy for global development]. prop. 2003/04:35 människosmuggling och tidsbegränsat uppehållstillstånd för målsägande och vittnen m.m. [smuggling of humans and residence permits of limited duration for crime victims and witnesses]. prop. 2003/04:111 ett utvidgat straffansvar för människohandel [an extended criminal liability for trafficking in persons]. prop. 2004/05:45 en ny sexualbrottslagstiftning [a new regulation on sexual offences]. prop. 2006/07:53 genomförande av eg-direktivet om offer för människohandel [implementation of the eg directive on victims of trafficking in persons]. prop. 2009/10:152 förstärkt straffrättsligt skydd mot människohandel [an enhanced penal code against trafficking in persons]. prop. 2010/11:77 skärpt straff för köp av sexuell tjänst [raised maximum penalty for purchase of sexual services]. government committees and other official documents dir. 2008:44 utvärdering av förbudet mot köp av sexuell tjänst [evaluation of the prohibition of purchase of sexual services]. sou 1981:71 prostitutionen i sverige. bakgrund och åtgärder [prostitution in sweden. background and measures]. sou 1990:44 makt och demokrati, maktutredningens huvudrapport [power and democracy]. sou 1995:15 könshandel, betänkande av 1993 års prostitutionsutredning [sex commerce]. sou 1995:60 kvinnofrid, betänkande av kvinnovåldskommissionen [women’s peace]. sou 2001:14 sexualbrotten ett ökat skydd för den sexuella integriteten och angränsande ifrågor, betänkande från 1998 års sexualbrottskommitté [sex crimes – expanded security for sexual integrity and adjacent issues]. sou 2008:41 människohandel och barnäktenskap – ett förstärkt straffrättsligt skydd, utredningen om människohandel m.m.[trafficking in persons and child marriage]. sou 2010:49 förbud mot köp av sexuell tjänst. en utvärdering 1999-2008 [prohibition of purchase of sexual services:an evaluation 1999-2008]. skr. 2007/08:89 sveriges politik för global utveckling [government communication, swedish policy for global development]. skr. 2007/08:109 mänskliga rättigheter i svensk utrikespolitik [government communication, human rights in swedish foreign policy]. skr. 2007/08:167 handlingsplan mot prostitution och människohandel för sexuella ändamål [government communication, action plan against prostitution and trafficking in persons for sexual purposes]. skr. 2011/12:3 jämställdhetspolitikens inriktning 2011–2014 [government communication, the focus of gender equality politics 2011-2014]. motion 2009/10:ju276 av fredrick federlay (c) sexköpslagens avskaffande [the abolition of the criminal liability for purchase of sexual services]. * senior lecturer in law, umea university, sweden. � hyperlink "mailto:asa.yttergren@jus.umu.se" �asa.yttergren@jus.umu.se� � at the end of 2008 about 100 states had passed laws against trafficking which criminalize sexual exploitation and forced labor without restrictions regarding the age or gender of the victim. another 25 states had passed anti-trafficking laws that cover certain elements of the palermo protocol, e.g. laws that are limited to sexual exploitation or apply only to females or children. � adams argues for the right of migrant sex workers to escape poverty and make a living as sex workers. as such they should not be deported as a result of enforcement of anti-trafficking legislation. � because of the difficulties of determining the numbers of persons trafficked there are no official figures available after 2004. for instance, the number of traffickers sentenced in swedish courts is a result of priorities made by the police and resources earmarked to combat trafficking, rather than an accurate measure of the numbers of victims of trafficking. � according to the official swedish view not only are brothels and street prostitution regarded as expressions of gender inequality but also escort service agencies, sex tourism, pornography in films, magazines or on the internet and also telephone sex and striptease. � however, there are comments in official reports that also open the way for cancelling the condition regarding the purchasing of sexual services, see the comments of the department of law, umeå university (2010) and the swedish crime victim compensation and support authority (2010). � however see motion 2009/10:ju276 with the proposal from a centre party member of parliament arguing that criminalization of the purchase of sexual services should be suspended because of its moral base, the lack of research, and that women in prostitution were not consulted. � for instance the rose alliance, a national organization for sex and erotica workers http://www.rosealliance.se/ � a residence permit of limited duration can also be granted in connection with other serious crimes. � marmo’s conclusions regarding the australian context are also applicable for the swedish context. __________________________________________________________________________________ 26 __________________________________________________________________________________ 27 ambreena manji taking on the state: an african perspective _________________________________________________________________________________________________________ feminists@law vol 10, no 2 (2020) _________________________________________________________________________________________________________ taking on the state: an african perspective ambreena manji[footnoteref:1]* [1: * professor of law, school of law and politics, cardiff university, uk. email manjia1@cardiff.ac.uk] in this piece, have organized my response under three heads. first, in reading cooper and emerton’s paper, i am struck by how the project is framed as a ‘not yet proposal’. for those of us involved with critical and reflexive law projects, flag’s methodology reverses our expectations. it opens with a proposal for change when we have instead come to expect that our proposals for law reform are made, if at all, at the end of a project or study. flag sets out to reverse this methodology and to ask that we think of ‘prefigurative law reform’. related to this is a second point about locating law reform projects as primarily directed at legislative reform placed in some future time. i think here it is important to consider the full range of legal engagement and how we might insert the sorts of claims we want to make in other wider legal strategies. again, i will elaborate below. third, i want to pick up on the paper’s suggestion that one of its aims is to establish a distance between state law and social gender and in this way to think about how and whether to withdraw state authority from propping up gender. here i would like to know more about the project’s conception of the state and our engagement with it. it might be useful in relation to this last point, to say something about my own socio-legal, law reform and area interests in responding to cooper and emerton’s paper. in the relatively young african feminist judgments project led by feminist litigators in eastern and southern africa we are working to draft and disseminate alternative judgments for important african landmark cases on a range of legal issues. at the heart of the project are the following questions – what might we mean by a landmark case in the african context? what is feminist judicial practice in africa and what might we want it to be? how might alternative feminist judgments contribute to african jurisprudence, legal practice, and judicial decision-making? what are the specific constitutional and historical contexts within which the project must be understood? when we gathered for our first meeting to discuss our judgments and the commentaries that will accompany them, we debated how we approach the legal form of the judgment in our judgment writing – should we stick closely and loyally to the recognizable form of a judgment with all the conventions of judgment writing that that entails, so that our project allows us to speak directly to the feminist judges and lawyers whom we hope to persuade and support as they attempt to deliver more progressive judgments on women’s rights to property, reproductive rights and sexuality, social and economic rights and so on (see munro et al, 2020)? or should we be giving up on the state and by extension the judiciary and, if so, should we rather use the judgments and our imagined courtrooms more subversively? the example i have in mind is the recent brechtian use of the courtroom by the feminist makerere university academic stella nyanzi. when she appeared before a kampala court charged with using offensive communication insulting the president of uganda and his mother in explicitly sexual terms, she used her court appearance to use vulgar language and words to expose the absurdity of the state’s case (nyanzi, 2020). should we – dare we – as an african feminist judgments project take on the state and its institutions in this way or do we wish to cleave to a liberal legal model that makes use of widened grounds of standing and new possibilities offered by the amicus curiae mechanism to bring our project into conversation with the judiciary? i have also been involved for some years in studying the work of constitutional lawyers in kenya seeking to litigate a range of social issues through the courts, relying on a reformed and strengthened judiciary and the new, transformative, constitution of 2010 (mutunga, 1999). what is critical here is the extent to which this constitution is based on south-south conversations – the global north is most definitely not an obligatory partner in the conversation. indian, south african and kenya lawyers have forged a constitution and used its innovative legal strategies in ways that have opened up space for law reform in the broadest possible sense (cottrell and ghai, 2007). just as important is the contribution that other disciplines might make to thinking about the sort of state with which we are engaging. for this, we have much to learn from literary theorists, historians and political scientists and their reflections on the nature of the state. so, to return to each of my points. first, law reform’s temporality and why it is interesting to think through a proposal that is manifestly not yet on the table. for the authors, the project is not one that is necessarily future oriented in the way that law reform in normally understood. instead, a prefigurative approach allows us to formulate and then pose a law reform question before it is viable or perhaps ever likely to be. i found thought provoking the suggestion that prefigurative law reform projects are less concerned with current possibilities than with exploring what it might mean to desire a given change and, in that way, to hear demands that might otherwise be silenced. let me merge this first observation with my second point about why we tend to locate law reform projects, as this project seems to have done, as primarily directed at legislative reform placed in some future time. if legislative reform is foreclosed for now, that shouldn’t prevent us from thinking about the full range of legal strategies through which we might effect reform, albeit very slowly and in the face of significant risks of pushback against the wider political project as a whole. i think it is important to consider the full range of legal engagements that might be possible and to think about how we might insert the sorts of claims we want to make in other wider legal strategies. this is because we have open to us in the form of a new generation of african constitutions, ways of inserting claims creatively into the court that we wish to have heard even if we think they are not ready to be heard or addressed (bassett, 2014). the mechanism in the 2010 kenyan constitution for broadened grounds of standing – taken from india via south africa – and the mechanism of joining amicus curiae to actions has provided considerable space for creativity. indeed, successful challenges to section 164 and 165 in botswana – the section of the penal code criminalizing homosexuality – in the 2019 case of lm v attorney general of botswana has been attributed by some to excellent use of amicus briefs to persuade the court in concrete terms of the harms caused by a colonial era provision (see https://theconversation.com/botswana-recognizes-lgbtq-rights-leading-the-way-in-southern-africa-119277). all of this is in order to say that in reading cooper and emerton, i wanted to know more about the present project’s conception of law reform. and i wondered what to do when ‘not yet on the table’ is neither an option nor desirable as a political strategy, when an issue cannot wait and harm is being done. put another way, we are sometimes faced with urgent issues – over women’s reproductive rights, for example – when we might not want to wait to reach the table but have to launch a fundamental challenge about who gets to make the table? this urgent standpoint is an interesting one from which to engage with the decertification project which does not assume that it is either possible or desirable to persuade the state to decertify, but aims instead to enable us to think about what conditions would need to be in place for this to come about. in other words, the project’s methodological intention is to offer decertification as a lens to explore our conceptions of gender and how it is regulated and to think about our investment in it. my third point is about the project’s theory of the state. here we learn that law reform may not be on the table given the current climate. even if the project is prefigurative, it is built on certain assumptions about the sort of state with which you are dealing. your prefigurative labours are taking place in the assumption that you can drive a wedge between the state and legal gender, that you could persuade the state to decertify. i wanted to know more about the project’s conception of the state and about how we assess the state’s investment in legal gender. can we assume the state’s willingness to withdraw its authority from the project of certifying gender? this is important because a prefigurative project would have to think carefully about state violence and state sponsored violence in its colonial and post-colonial manifestations (manji, 1999). african states have been both actually and symbolically coercive to women in both the colonial and postcolonial eras. indeed, literary theorists and others have written of kenya that it is itself gendered, characterizing its various regimes as both gerontocratic and phallocentric (musila, 2009). it is arguable that the entire edifice of the african state is built on gender violence, whether in the form of everyday acts of physical assault or the exclusion of women from political power – even when progressive feminist law reform projects are actually on the table. the kenyan constitutional provision that no one gender should account for more than two-thirds of parliamentarians is a case in point. it has simply been ignored and ridiculed by what is in effect an unconstitutional parliament (see https://theconversation.com/kenyas-parliament-continues-to-stall-on-the-two-thirds-gender-rule-79221). this provision in the 2010 constitution came about as the result of considerable struggles by kenyan women but its non-implementation demonstrates that even legislative and constitutional reform which is on the table cannot be relied upon to bring about gains. my point is to ask how a prefigurative project is embedded in wider gendered structures of state oppression and longstanding patriarchal practices. references bassett, k. (2014) ‘rancière, politics, and the occupy movement.’ environment and planning d: society and space 32(5): 886-901. cottrell, j. and ghai, y.p. (2007) ‘constitution making and democratization in kenya (2000–2005).’ democratization 14(1): 1-25. munro, v., black, g., chaudhary, r., cowan, s., gayoye, m., hunter, m., kennedy, c., lammasniemi, l., manji, a., matinda, m., munoth, s., prabhat, d., sekalala, s. and sen, j. (2020) ‘feminist judgments projects at the intersection’, feminist legal studies https://link.springer.com/article/10.1007/s10691-020-09428-0. manji, a. s. (1999) ‘imagining women’s “legal world”: towards a feminist theory of legal pluralism in africa.’ social & legal studies, 8(4): 435–455. musila, g.a. (2009) ‘phallocracies and gynocratic transgressions: gender, state power and kenyan public life’, africa insight 39(1): 39–57. mutunga, w. (1999) constitution-making from the middle: civil society and transition politics in kenya, 1992–1997. harare: mwengo. nyanzi, s. (2020) ‘no roses from my mouth’. kampala: ubuntu reading group. _________________________________________________________________________________________________________ 6 _________________________________________________________________________________________________________ 5 kath browne doing feminist research in contested moments __________________________________________________________________________________ feminists@law vol 10, no 2 (2020) __________________________________________________________________________________ doing feminist research in contested moments: commentary on ‘gender’s wider stakes: lay attitudes to legal gender reform’ kath browne[footnoteref:1]* [1: * professor, school of geography, university college dublin, ireland. email kath.browne@ucd.ie professor browne is a sexualities and genders geographer. her work explores sexual and gender equalities, most recently examining those opposed to them. thank you to the flag team for giving me an opportunity to be involved in this research. with thanks to erc grant number: 817897.] the paper ‘gender’s wider stakes: lay attitudes to legal gender reform’ offers insights into the questionnaire responses in the ‘attitudes to gender’ survey as part of the broader project that examines the legal decertification of gender. it poses interesting and timely questions regarding how surveys are completed, by whom, and to what ends. as a methodological paper it gives important insights into and contestations of presumptions of objectivity (even if a survey were representative), as well as raising the related question of whether and how researchers should stay ‘neutral’ in engaging with participants and responses that are, in peel and newman’s terms, imposing a cisgenderist framing. however, this paper also integrates a discussion of methodology with a consideration of the findings of the questionnaire. presenting both in tandem highlights how methods, and indeed how participants engage with our data collection, including how they discuss it and share it with others, constructs the results. in this short commentary, i will pick up on the methodological themes that the paper raises, as well as how the current context of england/uk is publicly, overtly and at times aggressively contesting accepted feminist understandings of gender/sex. under feminist research principles these contestations should be respected, and incorporated. but of course in reiterating a biologically deterministic perspective, these often self-identified women are seeking to exclude trans women, this poses perhaps unprecedented challenges to feminist researchers who are reconstituting academic knowledges. feminist research has for decades been premised on including marginalised voices and contesting the researcher/researched power relationships (for example, smith 1988; browne 2003; mcdowell 1992; moss 1993; 2002; stanley and wise 1993).[footnoteref:2] many feminist research principles then focused on research as a politicised site that seeks to work towards empowerment and inclusion of the most vulnerable and marginalised, through socially engaged research that is critical of hegemonic and disempowering relations. peel and newman’s discussion of their ‘attitudes to gender’ survey has revealed some of the limits of these engagements when undertaking research on gender in moments where there are public and fiercely contested divisions regarding gender ‘progress’ and inclusions. in particular, since 2017 in england (and perhaps the broader uk), there has been an overt, organised and targeted resistance from some of those who understand themselves as feminists, to trans rights, particularly access to single-sex spaces. [2: early feminist work drew extensively, but not always overtly, on postcolonial and other thinking (bar on 1993). similarly, feminist engagements with the power relations in research have since been extensively developed through participatory action research, in ways that are often not recognised as having its roots in feminisms or postcolonial research (see for example kindon et al. 2007).] as peel and newman show in their research, these resistances to trans rights read sex in biologically deterministic ways, and gender as somewhat mutable, but within specific ‘common sense’ limits. in the terms of those who might term themselves ‘gender critical’, people assigned male at birth or with a penis can never be women, but they can contend that women and men should be able to engage in a diverse array of gender practices. they also understand themselves as marginalised and subject to patriarchal power relations, and some also are survivors of sexual assault and some experience multiple marginalisation in terms of class/race/disability. in other words, they are often women with whom feminist research would seek to include and empower. yet inclusion and empowerment on their terms means the exclusion, disempowerment and rejection of trans equalities. in the contemporary context, as this paper illustrates, researchers who study gender and post-gender/sex possibilities are placed within the debate, regardless of what they might say (or indeed may not say) about their research. this supposed clear and unequivocal binary for/against women’s rights or for/against trans rights, does not allow for nuance or invite investigation. peel and newman were positioned as on both sides throughout the questionnaire responses. the research was read as both antiand protrans rights, despite the project, or indeed the researchers taking any overt position on the issue, and of course the presumption is of a unified position between the researchers. what this illustrates is that the perception of the participants created the data collected, through responses to the questionnaire that were based on their perception of the researchers, regardless of the researchers’ stated, or lack of a stated, positioning. nonetheless, the idea of decertification works against biologically deterministic arguments and in some views erases the import of sex. in this paper, the authors (and the broader research team in exploring this possibility and drafting legislation as part of the research) are exploring a potential that would be rejected by a (small) majority of their respondents to the ‘attitudes to gender’ survey. the epistemologies and associated politics of the participants play out through the answers given. in this study they offer insights into discussions often had on social media threads that become embroiled in debates regarding sex/gender and the place of trans people and trans rights. this indicates how research is relationally formed, co-created by researcher and those being researched (browne 2003; kobayashi 1994; england 1994). the situated production of research findings is well addressed in this paper, where the results are not simply presented following a discussion of methods, but instead the findings are put into a broader discussion of how the data was produced, and the wider responses to the questionnaire itself. this displaces the efficacy of the results and works against ‘reporting of findings’ that can be used by one side or another to ‘prove’ their position. yet refusing to see them as ‘facts’ does not diminish the position or purpose of the paper, instead it offers insights into how these debates are reconstituting gender/sex in contemporary british society. for example, peel and newman demonstrate that there are some identity categories that are read as being open to self-determination, and others that are viewed as fixed, pre-determined and based in objective fact, regardless of their legal standing. what the paper clearly shows is that what had become somewhat accepted in gender and feminist academic circles regarding the performativity of sex/gender binaries and the constitution of sex and gender since the 1990s, is increasingly and overtly contested. our research, therefore, needs to recognise and engage with these contested landscapes. the diverse definitions and understandings of progress, and the idea of what is progress being on ‘shaky ground’ is not ‘new’ per se. what was/is considered progress has always been variously defined and contested, and of course the debates regarding the inclusion of trans women and biological determinism was a key debate in the late twentieth century (raymond 1979; stone 1992). however, the inclusion of gender equalities, including trans rights into legal debates as well as popular culture, makes these debates perhaps more prominent. that gender/sex binaries continue to matter to people in the uk, and can be easily evoked to stoke fear and retribution, must be contextualised. in the context of this study, this includes within wider resistances to sexual and gender rights, including anti-gender movements, what catherine nash and i have conceptualised through heteroactivism (browne and nash 2019; nash and browne 2020; patternote and kuhar 2018). in particular, the resistances to gender and sexual rights in the uk and other places where it was presumed that there were particular trajectories of progress, can focus not on vilifying lesbian, gay men or trans people, but instead focus on seeking to reiterate a specific form of heteronormativity. what is clear from the paper is that there is a desire to focus on women’s rights, and indeed some participants suggest that trans rights are important, but different from women’s rights. that this research project has been targeted as being pro-/antitrans rights can offer important insights into these debates, but also potentially offer respectful ways forward that refuse to reiterate an oppositional binary. that competing assertions of marginalisations (women rights in these discussions can be counterposed against trans rights) are seeping into (disrupting?) academic studies is perhaps unsurprising. this study did not set out to explore the supposed binary of trans/women’s rights. yet studies of gender in the uk, perhaps can no longer sit outside these debates, in expanding the contemporary realms of knowledge and push forward practical engagements with such intellectual ideals. the line the paper takes is one that sensitively deals with the multiple and complex positions in relation to the survey data. it does not dismiss one perspective as ‘bigoted’. this, i think, is key. whilst peel and newman do view the responses through a cisgenderist paradigm they are also very careful not to dismiss responses instead they engage with them, offering new understandings of various positionings. however this respect and engagement is complex, because it is not appropriate to seemingly support discrimination, abuse or to take on, and perhaps tacitly support, dehumanising positions. yet, dismissing, ignoring or denigrating research participants, and indeed those who are fearful and potentially vulnerable in other ways is also unhelpful and has the potential to cause further harm reiterating damaging dichotomies. through the paper and the mention of receiving threats and complaints, i was reminded that the climate for undertaking sexual and gender research that is engaged with these issues is chilling. we are well aware of how those who oppose research focused on progressive issues can attack us academics (see, for example, gallaher, 2018). peel and newman demonstrate that there is also now the potential for, and instances of, retribution in the uk, including from those who might call themselves ‘feminists’. how we engage with this as researchers who are critical of power relations that might now work in our favour and protect us is paramount. this includes how we use institutional and state protections for physical threats and threats to our employment. how we deploy our institutions, the state, the police to protect ourselves needs consideration. feminist researchers at all levels can be subject to threat, but we are also aware that how we use these protections may well shore up our privileges that are disempowering to others. i believe we need to undertake research that would otherwise not be possible without institutional and state protections. mine is a position, that refuses a ‘middle ground’ but nonetheless seeks a different way (see https://beyondopposition.org/) that may not be possible or desirable for everyone. there is also a broader response needed to those who are contesting hegemonic understandings in gender and sexualities studies. we could argue that we should deploy ‘standards’, i am nervous of this assertion as challenging the ‘standard’ of objectivity and masculine heteronormative standards of knowledge was where much feminist thinking began (see stanley and wise 1983; 1993; rose 1995). we might also consider ignoring and rejecting, presuming that arguments will ‘move on’, however as peel and newman’s paper demonstrates, they may well instead come into our research studies, into our data in unexpected ways. nuanced conversations could examine how researchers respond to, and engage with, those who are opposed to sexual and gender rights, including trans rights, without seeking to endorse their views. further consideration is needed of the methodologies and conceptualisations needed to develop understandings that do not marginalise. for decades feminist, queer and other researchers have been debunking the myth of objectivity, and exploring the ways in which our politics, lived experiences as well as identities shape all research, such that knowledge from nowhere is not possible (see for example harding 1987; longino 1993; stanley and wise 1983; haraway 1991; england 1994). positionality is relational, not only when we interact with participants, but also in terms of our presumed politics. it has been accepted that researchers working within feminist principles were seeking to empower, but in the contemporary uk (and elsewhere) context, empowerment might well come with disempowerment of other marginalised groups. taking nuanced, multiple and potentially even contradictory perspectives within one project may offer some ways forward, but this is not yet clear and more thinking and dialogue is required. there are privileges in terms of who can be part of these conversations. we need to be clear about the trauma of undertaking this work, as well as the increasing threat to all researchers, that not only emanate from those who would oppose feminist politics. references bar on, b.-a. 1993. “marginality and epistemic privilege.” in l. alcoff and e. potter eds. feminist epistemologies. (pp. 83-100) london: routledge. browne, k. 2003. “negotiations and fieldworkings: friendship and feminist research”. acme: an international e-journal for critical geographers 2(2): 132-146. browne, k. and nash, c.j. 2017. “heteroactivism: beyond anti-gay”. acme: an international journal for critical geographies 16(4): 643-652. cook, j. a. and fonow, m. m. 1990. “knowledge and women's interest: issues of epistemology and methodology in feminist sociological research”. in j. mccarl nielson ed. feminist research methods: exemplary readings in the social sciences. (pp. 69-91) london: westview press. dias, k. and blecha, j. 2007. “feminism and social theory in geography: an introduction.” professional geographer 59(1): 1-9. domosh, m. 2003. “toward a more fully reciprocal feminist inquiry”. acme: an international e-journal for critical geographers 2(1): 107-111. england, k. 1994. “getting personal: reflexivity, positionality, and feminist research”. professional geographer 46(1): 80-89. falconer-al-hindi, k. and kawabata, h. 2002. “toward a more fully reflexive feminist geography”. in p. moss ed. feminist geographies in practice. (pp. 103-115) oxford: blackwell. gallaher, c. 2018. war on the ivory tower: alt right attacks on university professors. http://feature.politicalresearch.org/war-on-the-ivory-tower haraway, d. 1991. simians, cyborgs and women: the reinvention of nature. new york: routledge. harding, s. 1987. feminism and methodology. milton keynes: open university press. kindon, s., pain, r., and kesby, m. 2007. participatory action research approaches and methods: connecting people, participation and place. routledge: london. kobayashi, a. 1994. “coloring the field: gender, race, and the politics of fieldwork.” professional geographer 46(1): 73-80. longino, h. e. 1993. “subjects, power, and knowledge: description and prescription in feminist philosophies of science.” in l. alcoff and e. potter eds. feminist epistemologies. (pp. 101-120) london: routledge. moss, p. 1993. “focus: feminism as a method.” the canadian geographer 37(1): 48-49. moss, p. 2002. “taking on, thinking about and doing feminist research in geography.” in p. moss ed. feminist geographies in practice. (pp. 1-20) oxford: blackwell. paternotte, d. and kuhar, r. 2017. anti-gender campaigns in europe. mobilizing against equality. london: routledge. nash c. j. and browne, k. 2020. heteroactivism: resisting lesbian, gay, bisexual and trans rights and equalities. london: zed books. rose, g. 1995. “distance, surface, elsewhere: a feminist critique of the space of phallocentric self/knowledge.” environment and planning d: society and space 13: 761-781. raymond, j. 1979. the transsexual empire. boston: beacon press. smith, d. 1988. the everyday as problematic. milton keynes: open university press. stanley, l. and wise, s. 1983. breaking out. london: routledge. stanley, l. and wise, s. 1993. breaking out ... again. london: routledge. stone, s. 1992. “the empire strikes back: a post transsexual manifesto”. camera obscura 10(2): 150-176. __________________________________________________________________________________ 6 __________________________________________________________________________________ 7 sumi madhok a responsibility to representational justice __________________________________________________________________________________ feminists@law vol 10, no 2 (2020) __________________________________________________________________________________ a responsibility to representational justice: a few notes on reading davina cooper’s ‘taking responsibility for gender’ sumi madhok[footnoteref:1]* [1: * associate professor of transnational gender studies, lse, uk. email: s.madhok@lse.ac.uk ] what is/can be an intersectional life of institutional gender? davina cooper’s thoughtful and interesting paper begs this question for me. i am fascinated by cooper’s paper, which explores gender as an institution, and in particular, what taking up responsibility for gender involves. in centring the public/institutional life of gender, cooper gets us to imagine the possibilities of redoing and undoing institutional gender. she carefully distances herself from arguments that either make gender a private thing reduced to individual subjects, or indeed one that is dependent on the law for its articulation, to explore different possibilities for thinking about the public life of gender. as cooper rightly argues, gender is a public and institutional ‘patterned constellation’ that plays out in ‘asymmetrical patterned ways’. and, to acknowledge the public and institutional life of gender, cooper writes, is to unmoor it from subject centred discourse of group or individual rights, and towards taking up responsibility for gender, albeit, without legal certification. accordingly, taking up responsibility for gender directs attention to what we do to ourselves and to others, where responsibility may consist of readiness or obligation—self-imposed or laid by others—to exercise care. but this begs the question: by whom, to whom and towards what should care and responsibility be exercised? now generations of black, indigenous and postcolonial feminist scholars have powerfully argued for caution and vigilance against the ready and entitled taking up of responsibility for othered peoples. they have pointed to the epistemic, institutional and material histories of imperial power and to the contemporary forms of coloniality driving institutions, practices, politics, and norms (combahee river collective, 1995; crenshaw, 1989; cusicanqui, 2012; hill collins, 2000; hooks, 1984; lorde, 2001; lugones, 2010; mohanty, 1996; smith, 1999; spivak, 1988) animated by the desire to take up responsibility for civilising, developing and improving ‘other’ populations by not only producing knowledges, especially theory and history, but also devising ‘appropriate’ forms of politics and political institutions for ‘them’. as opposed to this taking up of responsibility as entitled ‘benevolence’ (landry and maclean, 1996: 269-270) for the ‘other’, these scholars have argued for an epistemic and political accountability to the other, and for a responsibility that centres ‘ethical actions’ and acknowledges complicity and implication in the institutional structures of intersectional gender violence. an intersectional lens brings into view institutional structures and social relations forged within complex and intersecting fields of power. as is well established, it is only when there is an accounting of the intersections of racial power, hierarchy, oppression, coloniality, differentiation and marginalisation that racialised gendered subjects come into view. acknowledging intersectionally positioned subjects is, of course, to acknowledge the silenced and invisibilised material histories of violent dispossession, coloniality and epistemic erasure but it is also to register, tell and hear different stories of political struggles for justice and freedom. these different stories of struggles for justice are not only over the collective right to define oneself as a collective people but also over dominant norms and embodied practices of gender and sexuality that violently exclude but also inform majoritaritarian representations of who the collective is. at stake in these different stories of struggles is the question of representational justice: of asking not only who is excluded but also which imaginaries of gender and sexuality become normative and why, and also inform the collective struggles for freedom and liberation? these different stories of struggles for representational justice prise apart formal models of equality and citizenship to show the exclusionary architecture of intersecting axes of privilege, dominance and power that underwrites them. but what does acknowledging the intersectional and gendered histories of political struggles over representational justice mean for taking up responsibility for institutional gender? quite simply, it means that people ought to have both the right and the liberty (freedom and autonomy) to decide on the gender they wish to inhabit and claim for themselves and, therefore, taking up responsibility for institutional gender must not only uphold this freedom to define one’s gender identity but also view the public life of gender in dynamic, intersectional and historical terms. importantly, it also means to foreground the gendered political struggles for representational justice. in other words, to recognise that gender is intersectional and political—and is a signifier of power relations—is also to recognise that the axes of oppression/power relations it signifies are themselves dynamic, located in place, time and in political struggles, and are therefore always changing (madhok, 2020), which in turn, implies that gender itself is dynamic and changing. if gender is political, intersectional, dynamic and located, then taking up responsibility for institutional gender is to produce an institutional response to dynamic intersectional gender relations that aligns with representational gender justice. by aligning with intersectional and representational justice, i mean the ethical imperative for institutions, including judicial ones, to not reflect and reproduce the political and gendered imaginaries of power and of the powerful, but to safeguard and protect marginalised and non-normative ways of being in the world. and, while influential feminist texts have insightfully pointed to the difficulties of turning to the law for instituting gender justice and rights, it is also the case that gendered and sexual rights are fundamental to a life of liberty and dignity. quite simply, without legal and institutional recognitions, protections and safeguards, not only is the liberty and freedom of marginalised and precarious subjects to define their gender identity and sexuality exposed to severe jeopardy and risks but so is their right to life and to living put under extraordinary peril. practising representational justice as a form of responsibility to an institutional life of gender can also mean to interrupt the normalised workings of the oppressive and racialised histories of gender that operate and inform institutional life on an everyday basis. my thinking on representational justice was sparked off, in the first instance, by a very arresting part of cooper’s paper in which she recounts a ‘dilemma’ arising in a ‘micro scene’ of gender where four persons conducting an interview are confronted with the decision of who should ‘chair’ the interview panel. cooper tells us that looking around the room, the assembly of persons appear to consist of three women and one man—but as cooper pertinently asks: could/should this identity be assumed at all? if not, then who is the person who should chair the interview panel and on what grounds? as cooper notes, ‘scenes do different things… it can represent what could be, including in prefigurative registers that treat this “could be” as if it is what “is”’. in this context, what might be the possibilities of redoing/undoing gender and how might one respond to the call to responsibility to institutional gender here? this is an arresting dilemma and demands our attention, and cooper raises hard questions. but perhaps, taking up the call to representational justice may enable us to negotiate this dilemma? institutions are sites of power and embody histories and practices of the powerful; and subjects enter institutions already embedded within particular historically inflected and intersectionally saturated scenes of gender, and in fact, it is precisely how they get read, rendered legible, acknowledged, refused or indeed erased. therefore, to take up responsibility for/to institutional gender is to take up responsibility for representational justice in the light of intersectional scenes of gender that have already been staged, continue to be staged and those yet to be staged. a responsibility to enact representational justice is to address gender on a continuum of dynamic simultaneity; it is to tie the present histories of gender to their past and to their future. so, while to be sure, taking up responsibility for/to the public life of gender involves thinking about gender in terms of the different possibilities for liberation and freedom, it also means taking up responsibility for the historical-intersectional scenes of gender that play out here and now. it means recognising that institutionalised gendered norms are structurally designed to identify nonnormatively gendered and racialised subjects and to wilfully expose them to institutionalised violence, terror, racial, gender and sexual policing, marginality and erasure. given this institutional context, an attentiveness to representational justice, for instance, can show up intersecting axes of gender hierarchies and relations that are material and embodied and which reflect institutional histories of differential inclusion, erasure, discrimination and participation. for instance, recent findings have shown that within uk higher educational institutions there are only 25 black women professors (guardian, 2018), that 36 per cent of transgender students have experienced ‘negative comments or conduct’ (stonewall, 2018), and that not only is there an existing gender wage gap, but that this wage gap is highest for those who identify as women of colour, with the latter earning substantially less than their academic colleagues who identify as white women (croxford, 2018). one way of centring representational justice as an ethical call to responsibility to/for the historical scenes of gender within institutional settings, say in the case of a university, could be to acknowledge responsibility to historically marginalised subjects removed from recognition and acknowledgement within the academy, and to take concrete steps through law, policy and curriculum to address the histories of institutional violence unleashed on subordinately positioned subjects in order to disrupt the institutional/ised structures of violence. it also requires acknowledging one’s complicity and implication in these racialised institutional structures, which one also benefits from. representational justice in this context could mean to unlearn, produce knoweldges, teach and ethically foreground the anti-colonial and transnational production of different knowledges, including on gender relations—of the histories of intersecting political struggles, movements and claim making for gendered, sexual rights and representational justice opposing excessive and overwhelming colonial and postcolonial state power and against institutionalised oppressive and exclusionary gender relations—which can, in turn, activate and generate different intellectual, political and gender imaginaries. and, perhaps, it is this attentiveness to representational justice that could come in handy in negotiating the dilemma over who to appoint as chair of the interview panel. references combahee river collective. 1995 [1977]. a black feminist statement. in b. guy-sheftall, ed. words of fire: an anthology of african american feminist thought. new york: new press, 232-240. crenshaw, k. 1989. demarginalizing the intersection of race and sex: a black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics. university of chicago legal forum (1989): 139-167. croxford r. 2018. ethnic minority academics earn less than white colleagues: https://www.bbc.co.uk/news/education-46473269 cusicanqui, s.r. 2012. ch'ixinakax utxiwa: a reflection on the practices and discourses of decolonization’. south atlantic quarterly 111(1): 95-109. the guardian. 2018. uk universities making slow progress on equality, data shows: https://www.theguardian.com/education/2018/sep/07/uk-university-professors-black-minority-ethnic hill collins, p. 2000. black feminist epistemology. in black feminist thought: knowledge, consciousness and the politics of empowerment. new york: routledge, 251-271. hooks, b. 1984. feminist theory: from margin to centre. boston: south end press. landry, d. and g. maclean, ed. 1996. the spivak reader. new york and london: routledge.  lorde, a. 2001. the master’s tools will never dismantle the master’s house. in c. moraga and g. anzaldúa, eds. this bridge called my back: writings by radical women of color. watertown, mass.: persephone press, 98-101. lugones, m. 2010. toward a decolonial feminism. hypatia 25(4): 742-759. madhok, s. 2020. a critical reflexive politics of location, ‘feminist debt’, and thinking from the global south’. european journal of women’s studies, september, online first. mohanty, c.t. 1996. feminist encounters: locating the politics of experience. in l.j. nicholson and s. seidman, eds. social postmodernism : beyond identity politics. cambridge: cambridge university press, 68-86. smith, l.t. 1999. decolonising methodologies: research and indigenous people. london: zed books. spivak, g.c. 1988. can the subaltern speak? in c. nelson and l. grossberg, eds. marxism and the interpretation of culture. basingstoke: macmillan, 271-313. stonewall. 2018. lgbt in britain: trans report: https://www.stonewall.org.uk/system/files/lgbt_in_britain_-_trans_report_final.pdf __________________________________________________________________________________ 6 __________________________________________________________________________________ 5 stewart preface __________________________________________________________________________________ feminists@law vol 4, no 1 (2014) __________________________________________________________________________________ preface to ‘legal constructions of body work’ ann stewart[footnoteref:1]* [1: * associate professor and reader in law, law school, warwick university, uk, email a.stewart@warwick.ac.uk. ] a. stewart, ‘legal constructions of body work’ in c. wolkowitz, r.l. cohen, t. sanders and k. hardy, eds, body/sex/work: intimate, embodied and sexualised labour (basingstoke: palgrave macmillan, 2013) 61-76. this chapter appears in an edited collection which ‘focuses on intimate, embodied and sexualized labour in body work and sex work, exploring empirically and theoretically the labour process, workplace relations, regulation and resistance in some of the many work sites that together make up these types of work. it seeks to tease out similarities and differences in the ways that sexual and physical intimacy are organized, managed and experienced across different employment contexts, and in doing so provides ways of reframing key questions in critical studies of work and employment’ (cohen et al., 2013: 3). my chapter explores the way in which two examples of body work – the labour involved in caring for the vulnerable elderly and in providing commercial sex – are regulated. it highlights the challenges that body work presents for labour law and exposes the wider conceptual limitations that this area of law faces in a consumer based market economy in which the boundaries between production and social reproduction are being reconstituted. the contributions to this book all address the idea of body work which is conceptualized as work on others’ bodies not on one’s own. it involves ‘assessing, diagnosing, handling, and manipulating bodies that become the object of the worker’s labour’ (twigg et al., 2011:1). body work is increasingly incorporated within market relationships and involves paid workers in social reproduction. sex work raises some conceptual challenges for scholars developing this concept because it encompasses a ‘range of activities in which sexuality is explicitly being sold’ and therefore, although many of these activities involve work on or with another’s body, some do not (cohen et al., 2013: 4). my chapter is concerned with the regulation of commercially provided direct sexual services which clearly is within the definition of body work. the focus for the book is on the labour processes involved. it considers ‘the paid work that takes other people’s bodies as its focus or ‘material of production’; the inter-subjective relations involved …; and the conflicts and organizational problems that arise when work involves bodies working on bodies’ (cohen et al., 2013: 4). thus while the bodies of workers are necessarily involved in all labour, here the focus is on the relationship with other bodies – the object of that labour. the proposition is that such work raises important issues for labour studies generally and, as argued in my chapter, for feminist labour lawyers not least because, historically, working on the bodies of others has largely been the responsibility of women. it remains so even though it is increasingly provided through the market. as such the form and extent of provision (for example the growth of the cosmetic, beauty, pampering and sex industries and with it, the commodification of intimacy more generally) have changed. body work now constitutes a significant proportion of the service sector in market economies but often remains invisible due in part to its continuing association with the unvalued socially reproductive work of women. it is often performed by socially marginalized groups (working class women, minorities and migrants) in non-work like spaces (street, brothel, salon, behind a curtain, within homes) and involves contact with bodily fluids and messiness. as i argue in my contribution it does not ‘fit’ easily within labour law and tends to attract other forms of regulation. references cohen, r.l., hardy, k., sanders, t., and wolkowitz, c. (2013) ‘the body/sex/work nexus: a critical perspective on body work and sex work’ in wolkowitz, c., cohen, r. l., sanders, t. and hardy, k. (eds) body/sex/work: intimate, embodied and sexualised labour, basingstoke: palgrave macmillan, pp 3-27. twigg, j., wolkowitz, c., cohen, r.l. and nettleton, s. (eds) (2011) body work in health and social care: critical themes, new agendas, chichester: wiley-blackwell. __________________________________________________________________________________ __________________________________________________________________________________ 1 vanessa e munro doing due diligence on gender? __________________________________________________________________________________ feminists@law vol 10, no 2 (2020) __________________________________________________________________________________ doing due diligence on gender? a reflection on davina cooper’s ‘taking responsibility for gender’ vanessa e munro[footnoteref:1]* [1: * professor of law, university of warwick, uk. email: v.munro@warwick.ac.uk] in her article in this collection, davina cooper offers a rich, timely and thought-provoking intervention into current debates around – amongst other things – how best to understand gender in a context in which it functions both as a prized component of personal identity and as a social classification upon which structures of power and opportunity are erected and sustained. her account does not seek to trivialise the significant value of gender, and its potentially fluctuating and fluid relevance and connotations, to an individual’s sense of self-identification, personhood, and autonomy; nor does it question the moral and political urgency with which initiatives to recognise and respect an individual’s chosen gender identity should be developed. but her discussion directs the reader to engage with additional dimensions of gender’s operation, and to reflect in particular on the ramifications of gender’s ‘public life’ as a classificatory category that, through its performance and construction, often continues to determine the parameters of meaning and possibility. this, cooper reminds us, is a scene in which we are all implicated as actors and extras; as such, we can be seen to owe responsibilities – to ourselves and others – to expose, question, interrupt, reposition or resist those frames. in this short response, i want to draw out and reflect further on just some of the many important contributions that cooper makes in her article, ever mindful that i do so from my own, highly particularised perspective as a white, middle-class, well-educated, heterosexual cis woman; a wife, a mother, and a feminist scholar who at times self-consciously navigates a difficult path to render coherent these simultaneously coalescing and confronting identities. that matters not only because candid positionality is a precursor to greater experiential inclusivity, but because of the intimate and inevitable connection that is engaged between the personal and the political, both at the level of individual and collective interactions around gender and its operation. as is ably demonstrated across this special issue, although it is not always a simple matter to do so, with contested questions remaining as to what precisely a demand for recognition entails, there is a compelling case in contemporary society for respecting personal experiences of gender identity in all their complexity. cooper’s intervention here reminds us, however, that this does not require us to disregard the structural dynamics and processes through which gender is constructed and often writ large within – still – predominantly patriarchal frames. for some time, and in a variety of contexts, feminism as a social, political and critical movement has been compelled to confront the dilemma of how to harness a sense of solidarity and commonality in the face of difference. though some scholars have opted for more strategic and pragmatic compromises, others have continued to strive to achieve a productive dialogue that engages private experiences, public representations and the institutional spaces between. i see cooper’s contribution here as pursuing that latter objective, offering an explanation as to why – in this and other contexts – individuals might embark on coalition building across divergence. the objective here is not to repress the multiple imbrications of gender identity in pursuit of superficial commonality, but to find mechanisms through which to take the contours of personal experience seriously, whilst responding to gendered frames that cannot be divorced from, but nonetheless have a life ‘beyond’, those experiences. at the heart of her proposal for how we might do that is that we should ‘take responsibility’ for gender as an institution. but what, then, does it mean to take responsibility for gender in such a mindful and deliberate way? in contemporary popular culture in the uk, we are told simultaneously that ‘we should all be feminists’ and yet that we should embrace and celebrate the ‘guilty feminist’ moments in which we fail, deliberately or otherwise, to embody feminism in our every action and thought. on reading cooper’s article, this brought to mind the question of what, particularly in this contrary cultural moment, does taking responsibility for gender mean for me? is it an all-encompasing commitment to live a feminist life? should we be concerned that this may become a bore or a chore? in the closing sections of her paper, cooper recognises that refusal always to be attentive to gender is also important. but how should we understand such refusals: as inevitable reflections of personal inconsistency and ambivalence; productive and playful interruptions; or irresponsible derelictions of duty necessitated, if not welcomed, by the practicalities of our daily lives? and what difference, if any, does the motivation make if those moments of non-attention – whether fleeting or sustained – have a comparable impact on the gendered ‘scene’? and responsibility is itself a loaded concept, of course. is there a danger that to invoke it in relation to the public institutions of gender completes a perfect neo-liberal triumph? after all, we have seen time and again how recognition of women’s vulnerabilities to victimisation, which often map onto historical and contemporary hetero-normative scripts, quickly translates into narratives of how women might be better able to take responsibility for their own behaviour against the background of those gendered norms (for example, by not dulling their senses by drinking alcohol, not sending flirtatious signals that might be misinterpreted, or ensuring that they communicate non-consent forcefully and unequivocally in all contexts). in recent decades, a further extension of this has occurred, with concerns about how to respond to the structural conditions in which sexual violence is normalised and trivialised often seamlessly evolving into discussions about how third party ‘bystanders’ might have better assumed responsibility for ‘calling out’ inappropriate behaviour, and being ‘active rather than passive’ interveners in the scenes within which such gendered norms are staged. neo-liberal sleights of hand by which responsibilities are placed disproportionately upon those who are already disadvantaged, often without any serious attempt to redress the broader structural conditions that create such disadvantage, already pervade many state responses to gender-based violence. and in that context, it is important to recall that responsibility is a slippery and often duplicitous concept. this is not to suggest in any way that cooper is not aware of the ‘slipperiness’ of her mandate to take responsibility for gender, and of how that responsibility might be distributed and discarded. much may depend here, of course, on how we understand the demands and dynamics of responsibility. cooper refers to iris marion young’s insistence that – in contrast to conventional understandings in which responsibility is framed by a fault model that seeks linear cause-and-effect explanations and sees attributions as a zero-sum game – it can also be understood in a ‘social connection’ frame where it connotes a shared participation with others to positively reform social institutions. this framing might temper the more individualistic impulses of neo-liberal notions of responsibilisation, and position responsibility more appropriately as a matter of capacity than culpability. still, it seems to be crucial to stay alert to the ways in which a call to responsibility for gender within public institutions can be productively redeployed in less progressive ways where it becomes a technique of governance. throughout her discussion, cooper leaves us is no doubt that there are inevitably a multiplicity of responsibilities at play in the context of contemporary gender. they include – amongst other things – a responsibility to represent faithfully one’s unique experiences, create space for others to articulate alternative accounts, challenge institutions that inhibit recognition of those experiences, subvert scenes in which gender norms are staged and performed, demand resources to realise alternative scenes, or hold institutions to account for the visions of gender they endorse. identifying these vectors of responsibility is important, but we also need as part of that to reflect on the ways in which they map onto, intersect with, disrupt and challenge one another; and to consider the ways in which those dynamics shift – both temporally and contextually – across personal and political terrains. to see myself, others – near or far – and institutions as variously having a responsibility for gender can be empowering, and as cooper illustrates can do important work in recognising the ‘overflow’ effects of gender as a public entity that risk being eclipsed by a sole focus on demands for personal recognition; but it is also a potentially weighty undertaking that can be, or could easily become, overwhelming. in that respect, cooper’s recognition of the challenge that lies in ‘sustaining a critically attentive relationship to gender where no option or way forward seems fully satisfactory given what else is at stake’ treads a necessary line between idealism and realism, resistance and resignation. __________________________________________________________________________________ 2 __________________________________________________________________________________ 3 anna avdeeva “thank god i have a separate dwelling” feminists@law vol 11, no 2 (2023) “thank god, i have a separate dwelling”: restructuring kinship through grandmaternal sidelining in the heterosexual families of russian natural-parenting mothers anna avdeeva[footnoteref:2]* [2: * postdoctoral researcher, swedish school of social science, university of helsinki, and centre of excellence for research on ageing and care, finland. email: anna.vl.avdeeva@gmail.com. i would like to thank all the interviewees who shared their life histories with me. i also gratefully acknowledge paul boyce, davina cooper, elisabeth engebretsen, anna heinonen, didi herman, j jack halberstam, heidi härkönen, anna moring, antu sorainen, thomas strong and alisa zhabenko for their productive comments on this article. the article was written as part of the academy of finland research project “corekin – contrasting and re-imagining the margins of kinship”, grant number 297957, 2016-2020 (dir. antu sorainen).] abstract the way mothers parent, and if and why they choose to do something, is significantly regulated by diverse discursive formations and social institutions, such as the state, medicine, law, rooted attitudes, and societal norms. what lies behind these regulations is the idea of a specific relatedness between mother and child – kinship. in this article, i analyse how natural parenting influences kinship and relatedness in the families of russian mothers who practise it. based on my original study, and inspired by marilyn strathern’s ideas, i show how natural parenting challenges the conventional russian form of mothering, which is characterised as extended and socially integrated, and results in a certain nuclearisation of the families of self-identifying ‘natural mothers’. the nuclearisation implies the re-definition of the role of elder kinsfolk as secondary to the child, and pushes them to the margins of the russian natural mothers’ children’s kinship systems. it is brought about by mothers who distance their own parents and who seek, in this way, to disrupt the flow of what they see as ‘old’ and ‘out-dated’, even harmful knowledge on childcare. however, this requires various significant resources from the mothers performing natural parenting. keywords alternative parenting, attachment parenting, childcare, fathers, gender, grandmothers, kinship, mothering, mothers, natural parenting, relatedness, russian families introduction: the promise of happier children vs conventional kinship ties in this article, i analyse how and why the “creation” of new, happier children who are expected to grow up to be self-confident, successful adults, as promised by the idea of natural parenting, requires and results in the transformation of kinship in the families of russian “natural” mothers. natural parenting entails the development of a tight emotional bond between mother and child through long-term, on-demand breastfeeding on the part of the child, co-sleeping, and baby carrying in order to secure the proper psychological development of the child and her current and future well-being (faircloth 2014: 149; melnik & chernyaeva 2015: 245; simonardóttir 2016: 105). these practices, framed by the idea of the vital importance of the mother’s continuous presence in close physical proximity to her child, challenge maternal delegating or sharing childrearing with other female kinsfolk, primarily grandmothers. in this respect, they transform the dominant model of extended mothering in russia (chernova & shpakovskaya 2016; godovannaya & temkina 2017). by investigating the russian ‘natural’ mothers’ way of reasoning and ‘doing’ natural parenting, as well as the ways in which they perceive kinship ties, i show how the practices of natural parenting not only challenge the conventional practice of extended mothering but also lead to the nuclearisation of the family and, consequently, work to re-frame kinship in their families. the analysis of my empirical data demonstrates that russian natural mothers distance their children from the elder kinsfolk both physically and emotionally in order to limit the influence of the elder female kinsfolk on their children. this prevents full-scale extended mothering which, as zhabenko points out (in this issue), is widely important in russian mothering, also within the framework of russian lesbian families. my analysis draws upon anthropological literature on kinship as a specific form of relatedness and the conceptualisation of parenting as parents sharing body and knowledge with their children (strathern 2005). it is based on 51 semi-structured interviews with russian self-identifying ‘natural’ mothers aged between 26 and 42 (average age 35). the interviews were conducted in st petersburg (november 2015), moscow (april 2016) and in the northeast provincial city of vologda (april 2018). these three sites were chosen in order to provide a contrasting and comprehensive picture of natural parenting implementation by self-identifying ‘natural’ mothers residing both in metropolitan and provincial areas of russia. this approach provided a snapshot of the general trends and differences vis-à-vis the phenomenon under study in russian megalopolises as well as areas remote from them. the choice of interviewees was not limited by age, race, sexuality or class, as the main recruitment criteria were the women’s self-identification as natural mothers, and having at least one child of pre-school age in their care at the time of the interview. when the interviews were conducted, none of the respondents was in a same-sex relationship, therefore the study discusses natural parenting in heterosexual family constellations in russia. the interviewees’ higher education, white-collar professions and family income average or higher in the region where they were residing led me to regard them as middle-class russians, as far as such a category could be applied in russia[footnoteref:3] (remington 2011; melin & salmenniemi 2012). [3: the absence of significant variations between my interviewees’ socio-economic characteristics is arguably due to one of the following reasons: the workings of the snowball method and social network advertising (including the thematic groups) as an interviewee recruitment method, and the resource requirements or identification claims of those who attach themselves to the articulated idea of natural parenting in russia. first, the snowball method might imply the recruitment of people belonging to the same community, established on the basis of shared values, views, and socio-economic position. second, the absence of significant variations might indicate that performing natural parenting is available mostly to resourceful women in russia. the latter correlates with the findings of other research on intensive mothering, which shows that in the usa and western europe intensive mothering is generally accessed by middleand upper-middle class women (elliot et al. 2015). the representation of women living in heterosexual family constellations in my research sample is arguably due to the cautious attitude of non-heterosexual women towards research carried out by someone unfamiliar to them in their social networks. the recent criminalisation of “propaganda for non-traditional sexuality” in russia (persson 2015) has led to the marginalisation of lesbian mothers, as there is now the potential threat of legal proceedings against them (zhabenko 2019, this issue). therefore, lesbians and queer women might have been afraid to disclose their personal lives to an unknown scholar, and participate in my research.] in order to inquire how the implementation of natural parenting transforms kinship in the families of the russian ‘natural’ mothers in this article, i first discuss what natural parenting is considered to mean, and what it involves in russia. then, in order to provide a context, i turn to the history and major characteristics of russian mothering. after that, i present the theoretical framework for the analysis of the empirical data. finally, i summarise my findings by suggesting that natural parenting in russia leads to a certain nuclearisation of the families of ‘natural’ mothers in my sample. this nuclearisation results from the ‘natural’ mothers distancing themselves from their elder female kinsfolk, as a result of the intergenerational conflict over mothering knowledge and appropriate childcare practices involving grandmothers. the nuclearisation becomes possible due to the resources possessed by ‘natural’ mothers and their husbands or other male partners in their parenting arrangements. natural parenting: what does the concept entail? as a mothering concept, natural parenting refers to several core ideas. the first idea is that the mother is the most important caregiver for the child, and the one who has the instinctive knowledge and necessary resources for childcare (bueskens 2001; schön & silvén 2007). second, the close attachment between mother and child is of fundamental importance for the child’s proper development and health (bueskens 2001: 78; schön & silvén 2007: 103). the role of the father is considered to be secondary: the father is supposed to assist the mother in everyday routine childcare which is mostly performed by her (avdeeva 2019; sears & sears 2001). therefore, despite its name, natural parenting is first of all about mothering rather than about mothering and fathering or gender neutral parenting. in order to establish and maintain a close attachment to a child, the mother is advised by the natural parenting ideology to focus “relentlessly on her child’s development and growth, supervise every detail of her child’s day and respond to all the child’s needs and to every stage of the child’s emotional and intellectual development” (perrier 2013: 657). in other words, within the framework of the natural parenting ideology, the mother needs to constantly orientate herself towards her child in order to secure her child’s physical and mental health, which is seen as forming the basis of the child’s personal confidence, social success, and overall ‘happiness’ later. the mother’s constant orientation towards the child and her response to all of the child’s needs is achieved by the mother’s constant physical and emotional availability for her child through such practices as long-term, on-demand breastfeeding, baby-sleeping, and baby-wearing (sears & sears 2001; schön & silvén 2007). ‘long-term’ in this context means longer than the child’s first year (faircloth 2013: 63). initially, the concept of natural parenting was launched and promoted in the united kingdom and the united states in the latter half of the 20th century by paediatricians and psychologists who adopted the attachment theory presented by british psychiatrist john bowlby (1951) and his colleague, the american-canadian developmental psychologist mary ainsworth (1967). in anglo-saxon settings, the emergence and development of natural parenting was enabled by the post-war public and state ideas of the child’s need for a family (lee 2014: 61-62). in the meantime, the family started to be seen by the public and the state as securing the child’s well-being, and hence as something that needed to be safeguarded against disruption (ibid). during world war ii, many children were orphaned or separated from their parents for long periods of time (lee 2014: 60). this was considered a traumatic experience and damaging for their psychological health. framed by the re-established public and state rhetoric about traditional female obligations, namely taking care of the reproductive sphere – home, family, and children (deem 1981; santana 2016) – the circulation of the idea of a child’s vulnerability and her ultimate need for a family resulted in the steady promotion of the attachment theory and the development of the ideology and practice of natural parenting on the basis of this theory. natural parenting in russia in russia, natural parenting ideas started to be circulated later than in the united kingdom and the united states, during the 1990s and 2000s by early russian natural-parenting proponents. this provided a novel model for childcare. historically, russian mothering has been extended, as the care of children has been provided through a large network of mainly female kinsfolk (rotkirch 2004: 174-175). it has not been changed even after the bolshevik revolution, in the 1920s, 1930s and later, despite the very significant socio-political transformations taking place in society. the bolsheviks tried to transform the extended family into a nuclear one, replace the intergenerational and kinship networks of economic and affectionate support with state and communal ones, and destroy the authority of older generations for the new soviet citizens (tchoukina 2002; razhbaeva 2004). however, the tight economic bonds and bonds of affection between several generations and lines of a family and the acknowledgement of the authority of elder kinsfolk continued to be a practical norm in soviet russia (olson & adonyeva 2016). the existence of extended mothering was also upheld by the “working mother” gender contract acknowledged by the soviet state as the only legitimate one (temkina & rotkirch 2002). within the framework of this gender contract, women were supposed to combine participation in public labour with care for family and children, while the state provided various forms of support and assistance for women in regard to childcare through state benefits, public healthcare, and nurseries (chernova 2013: 124). still, despite this state policy and attention to mothering, the quality and availability of public childcare services were insufficient (zdravomyslova & temkina 2003; gradskova 2007: 107-113). additionally, the father used to be absent from the soviet family at all levels: at the level of ideology, family, social policy, and actual practices (chernova 2007: 147). if women were considered by the soviet state to be performing both the productive and reproductive functions by participating in the wage labour market and taking care of the family, men were seen as “the constructors of communism”, and encouraged to participate mostly in the public sphere (chernova 2007: 140). the family and social policy considered fathers mainly in regard to alimony and property issues in the event of divorce (chernova 2013: 124). at the level of everyday family life, fathers, if present, were usually “emotionally distanced figures of authority”, the highest instance of control and power whose role was reduced to meting out punishment to children, often physically (semenova & thompson 2004: 140). in order for soviet women to be able to fulfil childrearing and working duties under these conditions, childcare was often shared with or delegated to grandmothers (gradskova 2007: 107-113). extended mothering and grandmothers in russia grandmothers’ involvement in childcare was also a result of the shortage of private accommodation, and the gender imbalance of the soviet population. despite the soviet state’s pledge to provide its citizens with private dwellings, there was a significant lack of residential accommodation. therefore, many families in the soviet metropolitan areas and countryside lived in extended family households (semenova & thompson 2004: 143). in the meantime, male mortality was much higher than female, and the gender imbalance, generally caused by the events of the first half of the 20th century, in which many men were killed (i.e. world war i, the bolshevik revolution and the russian civil war of 1917-1922, the stalinist purges, and world war ii), had taken hold by the mid-20th century (goldman 1993: 288; razhbaeva 2004: 172). consequently, grandmothers represented for the most part the extension of nuclear families. after the collapse of the ussr in 1991, the dominance of extended mothering persisted despite various socio-political and legal transformations. in terms of these transformations, the ‘working mother’ gender contract ceased to be the only legitimate one. such gender contracts as the ‘housewife-breadwinner’, the career-oriented mother, and the sponsorship contract, within which “a woman is financially provided for by a man (sponsored), fulfils only a sexual role, has a sexually attractive image and is oriented towards consumption values”, were also legitimised (temkina & rotkirch 2002). at the same time, new understandings of mothering, such as intensive mothering in its anglo-saxon form and intensive-extended mothering, started to circulate in russia (utrata 2015; chernova & shpakovskaya 2016; godovannaya & temkina 2017). the former refers to a timeand resource-consuming, child-centred, expert-guided female parenting. the latter refers to a hybrid model combining the practices of both intensive and extended mothering styles, and implies that mothers perform child-centred labour and resource-intensive care for children by sharing it with the children’s grandmothers and by engaging them in it (chernova & shpakovskaya 2016; godovannaya & temkina 2017). meanwhile, the share of complex households – consisting of parent(s), her/their child(ren) and other biological or in-law relatives – has been increasing since 1989 and, nowadays, they form one-third of all russian households (prokof’eva 2013: 79-80). this process has been conceptualised as “anti-nuclearisation”, and its prerequisites are considered to be the deficit of affordable housing, the high real-estate market, and the significant decrease in population incomes (ibid). under these conditions, grandmothers have continued to play an important role for families with children in russia (utrata 2015). russian grandmothers provide a wide range of support for their adult children and their families: they perform childcare, shopping, cooking and housework, as well as providing financial assistance and emotional support (utrata 2008: 12). the different forms of support provided by russian grandmothers are important both for single-parent families and for two-parent heterosexual families, since fathers’ participation in the sphere of reproduction and childcare remains insufficient (avdeeva 2013; lipasova 2016, 2017). despite the transformations of social institutions and practices in contemporary russian society, the ideology and practices of parenting (and especially male parenting) change slowly – many russian men consider breadwinning their primary task and the major responsibility of the father in the family (lipasova 2016, 2017). meanwhile, taking care of children and the household is seen by many russians, and articulated within the state and public discourse, as the mother’s duty (shpakovskaya & chernova 2013; lipasova 2016, 2017). the vast majority of russian heterosexual mothers carry the major burden of reproductive labour (lipasova 2016). at the same time, despite the state’s discursive support for families, the real state support for citizens with children is insufficient: there are low childcare allowances, a shortage of daycare centres and gender inequality in the labour market (chernova 2013: 154-155). under these conditions, the grandmothers’ participation in the care of grandchildren remains a significant source of support for all russian mothers (see zhabenko in this issue), facilitating their care work and participation in the labour market. the extended mothering and active participation of grandmothers in childcare within the russia context are at odds with the ideas of natural parenting. both the conventional model of extended mothering and natural parenting imply different constellations of kinship and interfamilial relationships, in particular between mothers, their children, and grandparents. to explain this better, in the section that follows, i will present my theoretical framework and turn to the analysis of kinship formation in the heterosexually constructed families of russian ‘natural’ mothers. parenting as sharing bodies: theoretical and methodological framework the way in which mothers parent, and if and why they choose to do something, is significantly regulated by diverse discursive formations and social institutions, such as the state, medicine, law, rooted attitudes, and societal norms. what lies behind these regulations is the idea of a specific relatedness of mother and child – kinship. in order to analyse this formation productively, i draw on contemporary anthropological and gender studies literature on kinship, particularly on marilyn strathern’s concepts of kinship, parenting, and relatedness. following this body of work, i regard kinship as a social construct; but not as something pre-given, consistent, or (entirely or essentially) grounded in biology (carsten 2004; strathern 2005; sahlins 2013). research has revealed that kinship could be re-assembled and re-actuated in various situations. genealogy does not guarantee the maintenance of intensive interpersonal contacts, and nor does the absence of genealogy imply the non-appearance of kinship ties (weston 1997; strathern 2005: 16-17; sahlins 2013). the variety of configurations of kinship, analysed in anthropological and sociological studies of relatedness, reinforces the conceptualisation of kinship as a mutuality of being, which implies practices, knowledge, memories and experience (carsten 2004: 405; sahlins 2013: 25). such mutuality implies people’s belonging to one another, co-presenting in each other, and the interdependence of lives, deaths, bodies, and feelings (carsten 2004; sahlins 2013: 27, 33). according to strathern, in the case of parents and their children, this mutuality of being is exceptional within the framework of many post-industrial societies since parents “shar[e] body with the child twice over” (strathern 2005: 5): first is the body of genetic inheritance, a given, a matter regarded colloquially as being of common blood or common substance. second is the body that is a sign of the parent’s devotion – or neglect – and in this middle class milieu it is above all through the application of knowledge that the parent’s efforts make this body (ibid). while in the first sense, parents sharing body with their children requires some matter or substance (either biological – genes, flesh or blood, or transferred – e.g. food), the second points to the sharing of a social body and knowledge. in more specific terms, it is about the internalisation of knowledge in bodies and its transformative force. for a mother, her child is “not only an extension of herself but also an extension of the world” (strathern 2005: 6). a mother, knowledgeable both about her child and the surrounding world, applies particular concepts and categories to a child and her parenting, which help the mother to incorporate her child into the outer world (ibid). the application of this knowledge provides both the transformation of a child and her body, and the flow of this knowledge from the mother to the child. the concept of parents sharing body with their children “twice over” is a productive analytical tool facilitating the study of parenting in relation to kinship. it encourages a move forward from the “top-down” approach to kinship and parenting. the latter implies an analysis of parenting mostly as a contextually specific social institution framed primarily by the complex structure of society, state policies, discursive constellations and global processes. it simplifies family life and personal relationships and does not shed light on how and why such relationships are built up, activated and sustained (smart 2007). meanwhile, parents performing care for children – “doing” parenting – share bodies with their children “twice over” daily, constantly, through multiple everyday routine practices. therefore, the investigation of parents sharing bodies discloses “doing” kinship at the level of everyday practices. the analysis of “doing” kinship through sharing bodies helps to analyse how particular forms of relatedness and/or relationality, including parenting, are created, designed, imagined and sustained in everyday life, and whether they differ (and if so, how) from those imposed by law, culture, and discourse. i call it an “upward” approach to kinship. following this idea of an upward approach to kinship, i will now turn to an analysis of natural parenting practices and the reasoning of a number of self-identifying russian mothers. first, i inquire how my interviewees share body with their children, namely through which practices of childcare and why. i go on to analyse what kind of knowledge they share with their children, and is shared by their own mothers. i investigate whether there are two different types of knowledge specific to each generation and, if so, how they comply with each other. this analysis will allow us to think further, in the latter part of this article, towards grasping the consistency or the possible cracks of “body sharing” among generations, and therefore of kinship. sharing body: breastfeeding talking about relations within the family and wider kinship, my interviewees argued that the child has the closest bond with her mother. this specificity of the mother-child bond could be articulated through the terms of centre and periphery, as in mila’s (aged 29, 3 children) narrative: it depends on age; at the very beginning, i think the mother is the main [person] – the mother is the centre. until the child is one, the mother is definitely the centre, but can remain so even longer. then the mother and the father are sort of equal, but they have different roles. […] the mother is like a given […], she is love and everything. and the father is interesting, he appears, brings something to your life. so [there are] different relationships, but equally important. the other way of describing the specific and superior mother-child bond is more lineal. for instance, nancy (aged 36, 2 children) defined the mother-child relationship in terms of coupledom: “the mother and the child are also a pair”. both approaches to the description of the relationship between mother and child imply that the mother and the child are comprehended as the basic unit or entity, while other kinsfolk, including the father, are seen as additional or secondary. the idea of the mother’s primacy for the child comes from regarding her as an essential source of nourishment (breast milk) for the child: “because the mother gives life and your life depends on her, if you are breastfed. the mother is your nourishment – you get everything from the mother” (mila, 29, 3 children). for my interviewees, breastfeeding was a central practice of natural parenting, deeply rooted in the everyday routine care of children. not all ‘natural’ mothers i talked to practiced co-sleeping or baby-wearing, but all of them breastfed their children. moreover, for the majority of my interviewees breastfeeding was tightly bound to other practices such as helping the baby fall asleep, treating the child’s distress, and calming the baby down due to its soothing effect. besides that, it was seen as enormously beneficial for the child. first of all, it was considered the healthiest option for feeding babies, duly contributing to the future ‘well-being’ of the child: the main point [of breastfeeding] is the health of the child. it was the most important for me. i mean the immunity and some support for the child [her health]. that’s it. i mean it was the primary reason why i definitely did not want to formula-feed. (sasha, aged 37, 2 children) the perception of breastfeeding as providing health for the child is based on the findings of research devoted to the investigation of breast milk benefits as well as the shortand long-term breastfeeding outcomes for children and their mothers. many of these studies state that breastfeeding diminishes the risk of allergies, otitis, respiratory diseases, enteric infections and obesity in children, and facilitates their cognitive development (faircloth 2013; jung 2015). apart from the benefits for the infant’s health, breastfeeding is also supposed to contribute love and affection to the child: “aside from the very chemical properties, yeah, it’s about unity with the mother. aside from feeding, it is a feeling of warmth and the mother’s heart, which you’ve been listening to all this time while you’ve been inside [her]” (natalia, aged 30, 1 child). for my interviewees, breast milk was not only a source of physical nourishment, but also an indispensable form of “mother’s love”, to paraphrase rousseau (1979: 12). for them, the process of breastfeeding was as important as the breast milk itself. nursing was seen by ‘natural’ mothers as a way of expressing the mother’s warmest feelings, and as a specific form of communication with the child. as a specific form of emotional and physical contact, breastfeeding is supposed to facilitate the attachment between mother and child. this idea becomes apparent in my interviewees’ narratives on the actual and possible situations of woman’s inability to nurse a child with her own breast milk. many ‘natural’ mothers argued that such cases required a woman to use sns, a supplemental nursing system consisting of a container and a capillary tube leading from the container to the mother’s nipple. the container can be filled with either breast milk, donor milk or formula. the tube is attached to the breast allowing the infant to suckle while receiving the nourishment from the container. in the words of larisa (aged 37, 1 child), “there are some systems [devices for feeding babies] existing for giving [nourishment] to a child through a breast. so she [child] is at your breast, you have a tie with her.” for my interviewees, if a mother cannot practice ‘proper’ breastfeeding, then it can be imitated. arguably, the idea of imitating breastfeeding in order to perform the specific form of emotional and physical contact with a child allows non-biological or non-gestational mothers to become ‘natural’ parents, too. however, for my interviewees, imitating breastfeeding is supposed to be performed by a mother only, not by a father or other relatives. none of my interviewees discussed if sns could be used by a person other than a mother. the perception of breastfeeding as affective communication with the child challenges the idea of actively sharing the duty of baby feeding with other relatives. the vast majority of ‘natural’ mothers i talked with were reluctant to express their breast milk. only two of my interviewees did this, while only one did it in order for her husband, grandparents and nanny to be able to feed the child while she was away at work. reflecting on their reluctance to express breast milk, my interviewees often said that they either did not consider it necessary because they spent all the time with the child, or they did not want to, like irma: maybe it [expressing breast milk] works fine if you arrange it well. it may result in interchangeability of spouses or [the mother’s interchangeability] with the grandmother, or the grandfather. […] so i admit it could be more convenient [for the mother]. however, for some reason it was unacceptable for me. breastfeeding in particular was obligatory for me, of primary importance. and then i started enjoying it […]. (irma, aged 36, 2 children) while irma explained her refusal to express breast milk by appealing to breastfeeding’s primacy and joy (“enjoying it”), in katja’s case breastfeeding was a tool for “doing” kinship: “this [breastfeeding] is about this [child] belonging to me. this is my baby, i [breast]feed him, he is mine, mine. so he is attached to me. yes, this is about attachment” (katja, aged 36, 2 children). awareness of the different benefits of breastfeeding problematised the refusal to breastfeed (avdeeva 2019) and made the practice a necessary element of maternal care for children for the ‘natural’ mothers i interviewed. my interviewees challenged or ever criticised women who did not breastfeed their children. for instance, natalia (30, 1 child) characterised “those [women] who formula-fed [their children] as not-enough-mothers”. in the meantime, larisa puts into question the mothering of those non-breastfeeding women whose breasts were lactating: “if there is breast milk, i don’t understand for what reason to justify, to bring some arguments for terminating [breastfeeding] during the first weeks of breastfeeding. i don’t understand what kind of mother is it” (larisa, 37, 1 child). hence, breastfeeding became the demarcation line between ‘natural’ and other – non-‘natural’ – mothers for my interviewees. for them, non-breastfeeding women could hardly be ‘natural’ mothers and, consequently, ‘proper’ mothers or mothers at all, even if they are biologically related to a child and presumably perform other practices of natural parenting. the ‘natural’ mothers’ understanding of breastfeeding as a specific form of mother-child bonding, creating and sustaining their relatedness, as well as the contemporary research on the health benefits of breast milk, formed the basis of my interviewees’ maternal knowledge about mothering, children, and the world around them. for my interviewees, breastfeeding became a way of externalising their knowledge. for them, breastfeeding was not just about sharing the body through the substance of breast milk and the process of feeding, but also about implementing their knowledge about the primary importance of the mother for the child. it is reasonable to say that breast milk was the substance of breastfeeding knowledge for my interviewees. the acknowledgement and implementation of this knowledge prevented the avoidance of the mother’s breastfeeding through delegating or sharing the duty of feeding the child with other kinsfolk. in the meantime, the tight bond between breastfeeding and other childcare practices, such as putting the child to bed, limited the participation of the father, grandparents and other relatives in other aspects of childrearing. consequently, breastfeeding became a tool delineating mother and child from other kinsfolk, and giving prominence to motherhood as a specific form of relatedness. sharing knowledge as discussed, my interviewees comprehended mother and child as the basic unit, and the long-term on-demand breastfeeding of the child as providing health and affection for the child. the natural mothers i talked to tightly bound this comprehension to the conceptual re-interpretation of the relatedness between grandparents and grandchildren: grandmothers and grandfathers should not foster children. they should love them [children], pet, […], entertain somehow, communicate with them, interact, tell them something, and share some impressions to make the child trust them. yet the authority, the decision-making on how to bring up a child, what a child can and cannot do, should be [imposed and done by] the mother and father only. (alba, aged 34, 3 children) grandparents are seen as providing “support, rest, entertainment” (mia, aged 42, 2 children) and affection for the child. even though grandparents are supposed to share their knowledge with grandchildren (“tell them something, and share some impressions”) and therefore incorporate children into the world (strathern 2005: 6), they are kept at a distance, either figuratively – by limiting their responsibilities and authority – or by their living arrangements. for instance, mia highlighted that she and her partner “are very happy to live separately” since they “would not manage to live together as an extended family”. possessing sufficient financial and material resources, the majority of ‘natural’ mothers i interviewed could afford to live separately from their parents. the intention to create distance by limiting the grandparents’ duties in regard to the children was borne out by these natural mothers’ knowledge of “proper” parental care. this knowledge contradicted the expertise and experience of the older generation. for instance, larisa, whose parents and parents-in-law lived separately, explained that she was satisfied with her kin relationships: i’m afraid of the grandmother’s and grandfather’s presence near the children. […] there is a generation difference after all. we have wonderful relations right now because i let them do whatever they wish. since i know that it will be over the next day, i’m not scared that they will […] give some freaking sweets, for instance, or do other things i radically do not appreciate in terms of yana’s [daughter] upbringing. (larisa, 37, 1 child) larisa feels a potential threat (“afraid”, “scared”) with regard to the practices and attitudes of her elder kinsfolk towards her child’s upbringing. she is able to tolerate them, but only for a limited period of time, in case they have an irreparable effect. while larisa sees her elder kinsfolk as a source of possible danger, inga’s narrative reflects how the mother could also be treated as potentially damaging for her child: thank god i have a separate dwelling; i have had an opportunity to isolate myself from the pressure of grandparents. i have just done everything [cared for the child] myself. yes, it has been hard, but it has been better than having to handle a daily hassle. […] my husband didn’t stand in my way. […] in the meantime, it [inga’s childcare style] was a nightmare for the grandparents. (inga, aged 35., 1 child) the way in which the elder kinsfolk articulated their opinions regarding natural parenting practices as dangerous or wrong, or their general disagreement over childcare approaches, was represented in different forms during the interviews. most of the time it took the form of uninvited advice and recommendations, which in some cases were accompanied by downbeat comments on the mother’s abilities and childcare practices: “it was harder with my elder daughter since my mother-in-law was at home and she [told me] ‘you don’t have enough breast milk’. she hassled me.” (maria, aged 32, 2 children). in some cases, the intergenerational disagreement over mothering took the form of an open conflict: i had a big argument with the grandmother about water, about whether the baby needs to be given water. she visited when the baby was 3-4 months old and we argued. [i told her] that the baby doesn’t need water since breast milk contains everything. (larisa, 37, 1 child). however, the cautious attitude of my interviewees and their mothers towards each other’s childcare practices does not imply an absolute refusal to receive and provide help with childrearing. many of my interviewees received some hands-on help from their mothers, yet they regarded it as lacking in emotional support and affection because of disagreements over major practices. the intergenerational disagreement over mothering in the families of my interviewees, as well as the forms it took, reveals the resistance towards two types of knowledge: one represented by the generation of elder kinsfolk, and the other by ‘natural’ mothers: all our grandmothers were taught alike: ‘let her [the child] cry’ […], ‘it’s nothing serious – she cries and then stops’, ‘give them [the children] water!’, ‘don’t cuddle them otherwise they’ll get used to it’, and so on. […]. i don’t know why they [the elder generation] were taught to hate children so much […] therefore they had breast milk only until a child was three months old, and they were, like, prohibited to breastfeed on [the child’s] demand. […] actually, the 1970s and 1980s were the clear and proclaimed epoch of misopedia, which was embedded into our consciousness by mothers in particular. as they were taught not to cuddle [their babies] […]. they were taught to ignore [children] – let them cry, and so on. starting from ironing the child’s caps and vests on both sides…but who needs caps and vests today? so they tried to instill this into my brain: my mother-in-law hardly tried, but my mother tried hard. (rita, aged 39, 3 children) rita’s narrative aptly illustrates the perception, also common among my interviewees, of the soviet time being an era of hatred of children. by hatred, rita was referring to inadequate attention shown towards the child who, according to rita, needs affection and close physical contact with the mother (“don’t cuddle them”, “let her [the child] cry”). from rita’s point of view, instead of sensitively responding to the infant’s demands, which was seen by my interviewees as the essence of maternal love, soviet mothers were advised to provide children with routine care of a significantly high sanitary-hygienic standard, requiring a lot of their time and other resources. in some sense, rita’s argument was quite true as soviet mothers were indeed recommended to focus on hygiene and to maintain it at a high level. these recommendations were strongly endorsed by early soviet childcare experts, who subsequently aligned their expertise with that of pedagogues and medical workers in order to decrease the child mortality rates, which were considerably high in the first half of the 20th century (mironov 2003; chernyaeva 2004). soviet mothers were also recommended to breastfeed children not when the child demanded, but according to a schedule, implying breaks of several hours between feeding sessions, which is currently considered by many medical workers and breastfeeding promoters both inside and outside russia as the wrong thing to do (furtsev & galaktionova 2014: 92).[footnoteref:4] hence, the soviet recommendations on childcare were significantly timeand resource-consuming as at those times living conditions were characterised by a shortage of household utilities and many consumer goods (temkina & rotkirch 2002). the implementation of these soviet recommendations could be regarded as an older form of intensive mothering since it entailed investing an enormous amount of different resources in raising children and securing their welfare (hays 1996: x). [4: the vast majority of natural mothers i interviewed, as well as many participants in russian internet forums devoted to breastfeeding and/or natural parenting, argued that breastfeeding on schedule was the reason why soviet women breastfed only for short periods of time. in the meantime, i did not find the actual statistics on the duration of breastfeeding by soviet mothers. hence, their claim about the short duration of breastfeeding could not be verified. ] nevertheless, the russian natural mothers i talked with did not regard the implementation of the soviet recommendations on childcare as intensive mothering. moreover, they saw these recommendations as potentially harmful, destroying other more important aspects of mothering, such as breastfeeding (“therefore they had breast milk only until a child was three months old”). in my interviewees’ understanding, natural parenting was the only “normal” way to carry out maternal childcare: “this [natural parenting practice] is normal; this is the way it [care for children] should be” (natalia, 30, 1 child). forms of maternal care for children other than natural parenting were seen by russian natural mothers as unnatural, abnormal, against nature, or simply less ‘natural’, and therefore as wrong. in the meantime, everything natural was considered by my interviewees to be smarter and more perfect in comparison to anything created or interfered with by humans and made for some purpose. the analysis revealed that my interviewees understood the purpose of a mother imposed upon her by nature to be care for her child, while the purpose of her maternal body was to nurture. the ‘natural’ mothers i talked with either explicitly or implicitly assumed that, for instance, female lacteal glands (breasts) have been designed by nature for breastfeeding, and the womb and vagina for giving birth vaginally. according to my interviewees, since nature and its creations are perfect, and nature cannot fail, the inability of a mother to use body parts and organs in accordance with their intended purpose was caused by a lack of knowledge or reluctance to follow nature’s design. both reasons were understood to be the result of, first, the oppressive culture and resistance shown by those providing unnaturalness (the state, medical workers) and, second, the lack of awareness of natural parenting shown by older generations and contemporary young women. from the point of view of my interviewees, while in the latter case the provision of unnaturalness was mostly unintentional, in the former case it could be driven either by the lack of expertise about recent science-based research (promoting natural parenting), or by the business interest in profiting from the provision of unnecessary and harmful treatments and advice, and making citizens more obedient. the perception of nature – a cornerstone concept of natural parenting specific to my interviewees – framed their comprehension of soviet extended mothering as unnatural and therefore as damaging for a child. i sometimes see neurotic children around me. i myself was a neurotic child, and i don’t want my children to be neurotics. so i try to create psychological conditions for them [sasha’s children] so that they feel comfortable, and live comfortably in the family. […] [neurotisation] is about lack of attachment […], when a child is given away. i mean i was given away all the time: to nursery school, to daycare, to [after-school] sections. (sasha, 37, 2 children) my informants regarded extended mothering as traumatising, as causing distress for children and irreversible harm. references to the term ‘neurosis’ in their narratives indicated their awareness of the vocabulary in the psychological discourse and concepts in the field. according to the research on parenting, the psychological knowledge related to childcare became a significant element of contemporary parenting in russia, as well as in many other post-industrial societies, at the end of the 20th century (lee 2014; chernova & shpakovskaya 2016). the psychological approach to childcare reinterpreted the child’s ‘well-being’: it began to be seen as requiring the child’s emotional comfort in addition to physical health. such psychologisation of childcare was part of the bigger process of the psychological knowledge expansion to all spheres of life (illouz 2007: 31). psychology expanded its influence “to the ‘normally’ neurotic middle-class people”, and changed the social identity of people consuming psychological services (ibid: 24). in western countries, the expansion of psychological knowledge was underpinned by the increasing dominance of the ideology of capitalism and individualism, promoting rationality, personal autonomy, and an orientation towards happiness (illouz 2007; ahmed 2010, 2013). consequently, the therapeutic culture has been blossoming (illouz 2008: 220). such a culture entails thinking and talking about emotions and relations in terms of psychological assumptions; it also requires the skill of identifying feelings and searching for a solution to a problem (illouz 2007: 59; lerner 2015: 350). my interviewees, born in the late soviet period (1970-1990s), grew up together with the steady promotion of the therapeutic culture in late-soviet and post-soviet russia. this culture started to be developed in soviet russia in the first half of the 20th century. the soviet state, interested in the creation and production of new quality citizens, saw the family as an intermediate agent between the wider society and the individual, and responsible for children’s upbringing (tchoukina 2002: 110). in order to secure the ‘production’ of new citizens, corresponding to the social needs and increasing the prestige of mothering, the state started educating and supervising families by implementing educational programmes in secondary schools, for instance, on ethics and the psychology of family life (issoupova 2000; chernova 2013: 131). starting in the 1960s, pedagogues and psychologists came to be regarded as officially legitimate experts on childcare, in the same vein as medical workers (gradskova 2007: 105). they have discussed and condemned the insufficient attention paid by mothers towards their children, their children’s grades, friends, and ways of spending leisure time (tchoukina 2002: 110; gradskova 2007: 96–97). emotions and other psychology-related issues started to be covered and debated in articles addressing mothers and published in the mass media (gradskova 2007: 105–106). i argue that my interviewees reflected on and talked about childhood from the perspective of this therapeutic culture, which developed simultaneously along with them. seeing the outcomes of the childcare dispensed by their own mothers as negative, the ‘natural’ mothers i interviewed aimed to avoid this outcome for their own children. hence, they assumed the role of primary caregivers who refused to delegate the care of their children to other kinsfolk, and primarily to grandmothers. however, the fact that my interviewees distanced themselves from their elder kinsfolk did not signify their desire for a nuclear family, but for the proper implementation of natural parenting, seen as the only “normal” form of female parenting securing the child’s health and prosperity. it was the understanding of the natural mothers i interviewed that the child needed to be securely attached to her mother primarily, and therefore the active participation of other kinsfolk in childcare was arguably unnecessary and even damaging. yet the natural mothers i talked to still regarded grandmothers as an important, albeit advanced, element in the child’s life, and hence they did not exclude them entirely from the child’s network. it is significant that taking the role of the primary caregiver and implementing natural parenting were also possible for my interviewees as a consequence of the father’s role within traditional gender ideology. while some of my interviewees’ partners actively provided ‘natural’ mothers with emotional and practical support, far more fathers took a primarily passive role. many fathers conformed to the parenting style of their partners, but this conformity was not a result of the men’s adherence to the ideas of natural parenting. arguably, this conformity resulted from the father’s recognition of the mother’s primary responsibility and expertise in childcare, and did not imply any cognitive labour on the part of the father. according to the vast majority of my interviewees, their partners rarely initiated a search for any information about caring for children. similarly, they rarely engaged in discussions on childrearing. in other words, within the framework of many families of ‘natural’ mothers i interviewed, the fathers did not intervene in the process of maternal care for children, and their participation in childrearing could hardly be characterised as active. such inactive fathers’ position combined with mothers’ reluctance to express breast milk, which consequently prevents the use of such devices as sns, transforms natural parenting into natural mothering. the intergenerational tension over the knowledge difference, and the form this tension takes (especially in cases of overt conflict), reveals how the implementation of natural parenting might prevent kinsfolk from providing practical and emotional support for a mother. under the conditions of a father’s under-involvement and insufficient familial support for a mother, neglecting or sabotaging her parental practices, or active resistance towards her choices and parental determination, in strathernian terms, my interviewees chose to limit the participation of grandmothers in the care of their children. this led to a certain nuclearisation of my interviewees’ families on the level of everyday childcare practices – shifting from the extended family consisting of parent(s), their children and other kin, mainly grandmothers, to the nuclear family represented by a heterosexual couple and their children. by doing so, it allowed them to assume a central, dominant position in their family, in regard to caring for their children. conclusion: what natural parenting does to a family natural parenting ideology claims that mother-child bonding and close attachment is of significant importance for a child’s proper development and well-being. it promotes the specific practices for creating and maintaining this attachment, one of which is long-term, on-demand breastfeeding. breastfeeding is portrayed by its promoters, such as breastfeeding counsellors and practising mothers, as well as by medical workers and researchers, as an ultimate need by the child and the main tool for securing her current and future physical and mental health. russian ‘natural’ mothers support these ideas and consider natural parenting to be the only appropriate form of maternal care for children. for ‘natural’ mothers, the core ideas of natural parenting are tightly bound to the perception of everything natural being supreme, perfect, and designed for some purpose, as well as to the therapeutic culture they internalised during their socialisation in the latter half of the 20th century. in their understanding, a mother’s body is created for nurturing children. ideas concerning nature’s superiority and the nurturing purpose of the maternal body add to ‘natural’ mothers’ reasoning whereby breastfeeding secures the child’s physical health. in the meantime, the internalisation of the therapeutic culture facilitates ‘natural’ mothers’ comprehension of creating a close attachment between mother and child through breastfeeding as an essential element in the child’s mental health. however, the idea of nature’s superiority and the internalised therapeutic culture not only intensify natural parenting suggestions on childcare. taken together with the natural parenting ideas, they construct ‘natural’ mothers’ ‘knowledge’ and redefine kinship ties within their family. ‘natural’ mothers consider mother and child as the basic entity. even though my interviewees admitted the significance of the father for the child, they highlighted the ultimate importance of the mother during the early years of the child’s life. within the framework of natural parenting, breastfeeding both justifies and reproduces the mother’s ultimate importance for the child. it problematises the delegation of baby feeding, and many other practices tightly bound to breastfeeding, to the father, and thus genders parenting. moreover, it entails the father performing his connection to the child only through the child’s mother. apart from full-scale joint parenting by the mother and father, the commitment to and implementation of natural parenting also prevents or narrows down extended mothering. it limits anything other than the mother’s body sharing with the child by excluding older generations and other kinsfolk from routine childcare. it also impedes older generations from sharing knowledge with the child. my interviewees placed their style of childcare in opposition to their mothers’ parenting. for them, the difference in the approaches to childcare provided by natural parenting as a novel model of female parenting and soviet-style mothering created a crack in kinship. having internalised the therapeutic culture, which had been steadily expanding in russia along with my interviewees’ own growth, the ‘natural’ mothers i talked with considered the soviet mothering they experienced as children as harmful. characterised by medical workers’ guidance and mothers delegating and sharing childcare with other people and institutions, they held that soviet mothering neglected the child’s need for affection and an emotional bond with her mother. taking the position of the ‘new’ knowledge offered by natural parenting and the therapeutic culture, my interviewees aimed to avoid the similar irreparable harm of neglecting their children. they did not want to transfer or implement the older generation’s knowledge with regard to their children and, consequently, separated their mothers from the immediate care of their children. such significant limitation of grandparental participation in childcare abandons the conventional practice of extended mothering and pushes grandmothers to the periphery of kinship. yet the existing qualitative and quantitative research shows that within contemporary russian society, grandmothers still play a significant role in many families. they are actively engaged both in household duties and childrearing. grandmothers’ participation in childcare and family life is underpinned not only by the contemporary russian structural conditions, but also by the public perception of this as ‘normal’, and as grounding and/or consolidating the family and kinship, as zhabenko’s findings (in this issue) show. by participating in the everyday life of families, russian grandmothers are ‘doing’ kinship as they share their bodies and knowledge, in strathernian terms, with the younger generations, including their grandchildren. meanwhile, the distance between grandparents and grandchildren created by my interviewees, either literally or figuratively, ruptures the straightforward sharing of the body. by appropriating childcare and excluding grandmothers from the everyday life of the family, ‘natural’ mothers re-assert a new family and kinship order. they affirm the mother-child unit as the centre of the child’s kinship system and place other kinsfolk in this unit’s orbit. yet it is important to note that my interviewees’ distancing of grandparents from childcare and, consequently, the nuclearisation of their families, signifies the well-resourced social position and status of the ‘natural’ mothers i talked with. separating the older generation from childrearing is possible for my interviewees because they have the resources for it: they can afford to live independently in a separate dwelling and they are not forced to be absent from their children and home during the early formative years. the children’s fathers assume the role of the primary breadwinner, and the family’s income allows many natural mothers to postpone their return to the labour market after the child’s birth. it is hard to say what the discussed nuclearisation of ‘natural’ mothers’ families and their new kinship order will bring to the wider society in the long run. it definitely provides an alternative to the current 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polity press. illouz, eva. 2008. saving the modern soul: therapy, emotions, and the culture of self-help. berkeley: university of california press. issoupova, olga. 2000. from duty to pleasure? motherhood in soviet and post-soviet russia. in ashwin, s (ed), gender, state and society in soviet and post-soviet russia. london: routledge, pp 30-54. jung, courtney. 2015. lactivism: how feminists and fundamentalists, hippies and yuppies, and physicians and politicians made breastfeeding big business and bad policy. new york: basic books. lipasova, alexandra. 2016. fatherhood models in the middle class of contemporary russia. russian sociological review 15(4): 202-214. lipasova, alexandra. 2017. fatherhood in the russian provinces: a theoretical and empirical analysis. the journal of social policy studies 15(4): 629-642. lee, ellie. 2014. experts and parenting culture. in lee, e, j bristow, c faircloth and j macvarish (eds), parenting culture studies. london: palgrave macmillan, pp 51-75. lerner, julia. 2015. the changing meanings of russian love: emotional socialism and therapeutic culture on the post-soviet screen. sexuality & culture 19(2): 349-368. melin, harri and suvi salmenniemi. 2012. class analysis in the ussr and contemporary russia. in suvi salmenniemi (ed), rethinking class in russia. london: routledge, pp 23-41. melnik, natalia and natalia chernyaeva. 2015. ot imprintinga k “estestvennomy roditelstvy”: konrad lorents i ego vliyanie na idologii materinstva v xx v [from imprinting to “natural parenting”: konrad lorenz and his influence on the mothering ideologies in the 20th century]. izvestija ural’skogo federal’nogo universiteta [proceedings of the ural federal university], series 3 social sciences, 1(137): 44-58. mironov, boris. 2003. sotsialnaya istoria rossii perioda imperii: xviii – nachalo xx v [social history of russia during the imperial period: xviii – beginning of xx century]. vol. 2. st. petersburg: dmitry bulanin. olson, laura and svetlana adonyeva. 2016. traditisiya, trasngressiya, kompromiss: miru russkouy derevenskoy zhenshinu [tradition, transgression, compromise: the realms of the russian countryside woman]. moscow: novoe literaturnoe obozrenie. perrier, maud. 2013. middle-class mothers’ moralities and ‘concerted cultivation”: class others, ambivalence and excess. sociology 47(4): 655-670. persson, emil. 2015. banning “homosexual propaganda”: belonging and visibility in contemporary russian media. sexuality & culture 19(2): 256-274. prokof’eva, lidia. 2013. semeynaya struktura naseleniya rossii: tendentsii poslednego desyatiletiya [the family structure of the russian population: tendencies of the last decade]. narodonaselenie [population] 2: 72-84. razhbaeva, m. 2004. semeynaya politika v rossii xx v: istoriko-socialnuy aspekt [family policy in the twentieth century in russia: the socio-historical aspect]. obshestvennue nauki i sovremennost [social sciences and modernity] 2: 166-176. remington, thomas. 2011. the russian middle class as policy objective. post-soviet affairs 27(2): 97-120. rotkirch, anna. 2004. “coming to stand on firm ground”: the making of a soviet working mother. in bertaux, d, a rotkirch and p thompson (eds), on living through soviet russia. london: routledge, pp 146-175. rousseau, jean-jacques. 1979. emile, or education. new york: basic books. sahlins, marshall. 2013. what kinship is and is not. chicago: university of chicago press. santana, maria c. 2016. from empowerment to domesticity: the case of rosie the riveter and the world war ii campaign. frontiers in sociology 1: 1-8. shpakovskaya, larisa and zhanna chernova. 2013. diskursivnue modeli sovremennogo rossijskogo roditelstva [discursive models of russian modern parenthood]. zhenshina v rossiyskom obshestve [women in russian society] 67(2): 14–26. schön, regine a and maarit silvén. 2007. natural parenting: back to basics in infant care. evolutionary psychology 5(1): 102-183. sears, william and martha sears. 2001. the 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in soviet society in 1930–1980]. in zdravomyslova, e and a temkina (eds), v poiskah sexualonsti [looking for sexuality]. st. petersburg: dmitry bulanin, pp 99-127. temkina, anna and anna rotkirch. 2002. sovetskie gendernue kontraktu i ikh transformatsiya v sovremennoy rossii [soviet gender contracts and their transformation in contemporary russia]. sotsiologicheskie issledovaniya [sociological research] 11: 4-14. utrata, jeniffer. 2015. women without men: single mothers and family change in the new russia. ithaca: cornell university press. utrata, jeniffer. 2008. babushki as surrogate wives: how single mothers and grandmothers negotiate the division of labor in russia. uc berkeley: berkeley program in soviet and post-soviet studies. retrieved from https://escholarship.org/uc/item/3b18d2p82017. weston, kath. 1997. families we choose: lesbians, gays, kinship. new york: columbia university press. zhabenko, alisa. 2019. russian lesbian mothers: between “traditional values” and human rights. journal of lesbian studies, doi: 10.1080/10894160.2019.1598207. zdravomyslova, elena and anna temkina. 2003. sovetskiy etakraticheskiy gendernuy poryadok [soviet ethocratic gender order]. in pushkareva, n (ed), sotsialnaya istroria. zhenskaya i gendernaya istoria [social history: history of women and gender]. moscow: rosspen, pp 436-464. _______________________________________________________________________________________ 2 _______________________________________________________________________________________ 2 editorial “is rape different?” _____________________________________________________________________________________________________ feminists@law vol 3, no 2 (2013) _____________________________________________________________________________________________________ a response to the lse event “is rape different?” lse law’s inaugural event in its ‘debating law’ series was held on wednesday 30th october. it was entitled “is rape different?”. the event has provoked an explosion of responses on social media, particularly twitter, and has led to the publication of a number of articles in the press that publicise the arguments made by two of the four panellists, namely helen reece and barbara hewson. professor jennifer temkin and chief crown prosecutor for cps north west england, nazir afzal, were also on the panel, but their views received significantly less media attention. the arguments advanced by both helen reece and barbara hewson are deeply problematic for two reasons: they appeal to existing rape myths in society and they fail to root their claims in evidence. this storify piece sets out how the responses to the event developed on twitter. as feminist academics we wish to condemn the decision of the lse law department to hold this event and to continue to defend it. the advertisement for the event presented deeply problematic questions about rape as legitimate questions: rape is a heinous crime but does it demand special treatment? do rule of law and fairness pay a price? helen reece leads a debate on whether rape is, in some sense, different. the event was widely publicised via email, twitter and the lse website. a dedicated webpage detailed the arguments put forward by reece in advance of the event: http://www.lse.ac.uk/newsandmedia/commentandopinion/2013/10/rape.aspx reece’s key point was that comparisons are very rarely made between rape and other crimes and that this is problematic. as part of her argument she contended that rape myths are not as prevalent as is commonly assumed. she made reference to her recent article, “rape myths: is elite opinion right and popular opinion wrong?” in the oxford journal of legal studies, where she has argued that “the regressiveness of current public attitudes about rape has been overstated.” reece stressed the importance of questioning what she called the “strong consensus” that rape is different to other crimes. by implication, reece seemed to be arguing that rape is not different to other crimes, and should be compared with other crimes. she argued that surveys are not done on public attitudes to victims’ behaviour relating to crimes of burglary or assaults, for example. thus, she seemed to be questioning the need for research into public attitudes regarding victims’ behaviour in rape cases on the basis that the same is not done in respect of other types of crime. this point was somewhat in tension with her argument, as it emerged during the questions following the debate, that it is important to talk about victims’ behaviour in terms of increased risk of rape. she claimed that it is possible to think that certain behaviour increases the risk of rape without blaming the victim. barbara hewson, a barrister in hardwicke chambers, who stated at the outset that her background is not in criminal law, echoed reece’s comments, but took a different approach. she argued that we need to turn the clock back on rape and to think differently about the discourse surrounding victims of rape. she referred to joel best’s notion of “an ideology of sexual victimization” that she said was reductionist and absolutist. hewson took reece’s point about increased risk and went further, arguing that rape victims may have a moral responsibility for being raped. in response to a question about the importance of consent, hewson said the feminist idea of active or enthusiastic consent turns consent into a failure to take care, and therefore makes rape more about negligence than criminal law. in questions, hewson stated that she would like to see rape treated the same as other offences. the points advanced by reece and hewson were challenged by temkin and afzal. temkin explained that reece’s argument was not based in evidence and set out the arguments for treating rape as a ‘special’ crime. she highlighted that the conviction rate for rape as compared with other offences is low and we should be concerned about it. she referred to the british crime survey’s finding that the overwhelming majority of victims still do not report rape. in relation to the question of the possible relevance of the victim’s behavior, she re-iterated the fundamental point that it is only ever the perpetrator who is responsible for the rape, never the victim. the actions of the victim are irrelevant to criminal liability. in relation to the argument that the public may blame all victims of crime, temkin stressed that there is no research that shows that other victims are as consistently blamed in the way that rape victims are. there is no research which shows that there is a body of mythology surrounding other victims in the way that that there is in relation to victims of rape. she argued that the onus is now on reece to show that people are equally blaming of other victims and that this may colour their attitude when asked to assess criminal liability. this point was crucial, because when it comes to rape, those blaming attitudes can influence members of the jury when it comes to assessing criminal liability. she gave the example of the parents of madeleine mccann; while some people may perhaps blame them for leaving their child alone, they would never on that basis refuse to convict her abductor. temkin said it beggars belief that we should even be talking about making the criminal process even more difficult for rape victims. afzal argued that rape is about control and power rather than sex. he emphatically rejected any notion of holding victims of rape ‘responsible’. furthermore he stated that in almost all of the cases with which he has been involved the crime was hidden in plain sight. people knew it was happening but no-one seemed to do anything about it and victims were too ashamed to report. he cast this as a failure of the criminal justice system. he highlighted the differential treatment by the police of victims of rape when compared to victims of other kinds of crime. he talked about the rochdale case and the initial disbelief that hampered the initial investigation. he decided to turn that around and to prosecute the men involved. afzal stated that rape is different for a number of other reasons, including: very often the court experience re-traumatises the victim (although he stressed that things are changing in that regard); he could not think of any other crime so beset by myths and stereotypes; and there are few criminal offences that have such a serious, prolonged, psychological impact. in relation to the historical ill-treatment of rape victims by the criminal justice system, afzal stressed that given that we are thankfully now in a situation where victims feel they can report, there is a duty on prosecutors to act upon complainants, even if they are old. he stressed that it is not a 100% policy, and that many cases referred by the police approximately half are not prosecuted. we deplore lse law’s decision to give a platform to reece and hewson’s dangerous and unsupported views and its failure to engage responsibly with the public on such an important and sensitive issue as rape. according to the lse website: (http://www.lse.ac.uk/intranet/lseservices/erd/conferenceandeventsoffice/information/plpapplication.aspx) the public lecture programme is a key part of the 'public face' of lse. the purpose is to position lse at the centre of debate in all areas of the social sciences. lse research is relevant to the real world, rather than an "ivory tower" and these lectures aim to enhance the school's reputation for intellectual, challenging ideas and discussion with a broader public audience. the notion, advanced by reece and hewson, that rape victims may somehow be responsible for their fate is perhaps the most problematic of their claims. regrettably, it was this argument that gained significant traction in the press. http://www.telegraph.co.uk/news/uknews/law-and-order/10418682/rape-victims-should-have-moral-responsibility.html. the etymological difference between ‘responsibility’ and ‘blame’, which reece attempts to use, was either disingenuous or ill-thought through in this public forum. hewson’s attempt to say that she was solely concerned with moral responsibility and not about legal responsibility is similarly duplicitous, speaking in her role as a barrister and at one of the world’s most prominent law departments. stating that there is a distinction between blame and responsibility cynically elides the appeal to rape myths embedded in the argument itself.   whatever the intention of lselaw, the reality is that the consequence of the way in which lselaw marketed and then defended this event, is that reece and hewson’s views about rape victims have been widely publicised in the mainstream media and thereby legitimated. unfortunately the media has failed to highlight the responses of prof temkin and mr afzal, along with the critiques of reece’s ojls paper (such as barbara krahé’s excellent piecesee here: http://www.uni-potsdam.de/fileadmin/projects/sozialpsychologie/assets/comment_reece_paper.pdf) a key objective of the lse public lecture programme is to disseminate ideas as widely as possible. as stated on the lse website: the plp attracts thousands of people to lse every term and in 2011-12 over 70,000 people attended over 300 events. many of our lectures are now available for download as podcasts and videos, attracting audiences from across the world with such a wide audience, we believe there is an onus on the lse law department to ensure that the ideas that are being disseminated do not feed dangerous stereotypes about women being responsible for the sexual violence perpetuated against them. we invite readers to add their names in support of this statement, using the ‘add comment’ function at the end of the article. the editors. postscript the ‘add comment’ function remained open for three weeks following the publication of this editorial. all of the comments received in that time are reproduced in full below: 88 in support and 10 opposed. reader comments in support of the statement "marinas" (2013-11-14) i strongly support this statement. it is very unfortunate that lse has chosen to provide a conveninet platform for opinions that are as hackneyed as they are baseless. that is not the standard of forward thiking rigour one would expect from such an august instituion. in support of the statement "mel evans" (2013-11-14) in support "j gaj" (2013-11-15) in support of this statement "lou dear" (2013-11-14) thank you for this. "emily grabham" (2013-11-14) i support this statement "sylvia brand" (2013-11-14) phd student "rachel o'neill" (2013-11-14) in support of this statement "hannah mcmahon" (2013-11-14) i write to support the feminists@law statement, silvia posocco "silvia posocco" (2013-11-14) i support this statement "yvette russell" (2013-11-15) dr "elena loizidou" (2013-11-15) rape, reporting, prosecutions and convictions have been low. the voices of temkin and afzal describe accurately the limits of social and legal justice that complainants of rape face. the myths are not so much myths but a reality for the complainants of rape. i am not sure whose voice the debate wanted to give public recognition, nor i am sure who is the public that it is addressing. all offences are different from each other, the differences in sentences is an expression of this. at a time when resources are drying up a debate that questions the validity for treating rape the same as property offenceswhere for example the question of consent is not considered an intergral part of the offence provides no theoretical or legal reasoning. i agree with asking the lse law school to account for the public good that they were delivering in this debate. in support of this statement "farhan m. idris" (2013-11-15) i support this "vicky conway" (2013-11-15) adding my name in support for this statement. "terese jonsson" (2013-11-15) thank you for writing this. in support of this statement as an lse law alumni "emily jones" (2013-11-15) i support this statement "annamarie browning" (2013-11-15) i support this statement "nayeli urquiza" (2013-11-15) i support this statement "gwyneth lonergan" (2013-11-15) i sign in support of this statement. "alex dymock" (2013-11-15) i support this statement. "elliot evans" (2013-11-15) support "dr. zoe brigley thompson" (2013-11-15) i support this statement in support "kathryn mcneilly" (2013-11-15) i support this statement "nikki godden" (2013-11-15) i support this statement "jane aaron" (2013-11-15) i support this. "aleksandra stankova" (2013-11-15) in support of the statement anonymous user (2013-11-15) juuso sallinen i support this commendable response. "stephen samuel" (2013-11-15) professor "patrick hanafin" (2013-11-15) i support this statement i support this statement "professor maggie humm" (2013-11-15) signed in support "gilbert leung" (2013-11-15) support "eoin daly" (2013-11-15) eoin daly ms "joanna allan" (2013-11-15) i support this statement feminist fightback support this statement anonymous user (2013-11-15) i am in suport of this "zowie davy" (2013-11-15) i support this statement "carole wright" (2013-11-15) i support this statement "professor carrie paechter" (2013-11-15) i support this statement. "isabel" (2013-11-15) i support this statement "dr carole jones" (2013-11-15) in support of this statement "flora renz" (2013-11-15) dr. "jenny roth" (2013-11-15) i support the position of feminists@law and condemn lselaw's ill-conceived 'debate' about women's responsibility for rape. dr "katy pilcher" (2013-11-15) i support this statement dr "annette lawson" (2013-11-15) i support this statement i support this statement as an lse alumni in gender "cynthia dehesa" (2013-11-15) i support this statement "ananya rao-middleton" (2013-11-15) i support this statement rape-apology and victim-blaming is not acceptable, and should not be advocated by anyone. in support of statement "lisa kalayji" (2013-11-15) lse has demonstrated both social and academic irresponsibility in allowing this empirically unfounded and highly inflammatory discourse to be proliferated with the implied legitimacy that attends such a distinguished institution. the university owes apologies to the public, the academic community, and the sexual assualt survivors who continue to be harmed by pervasive and uncritically accepted victim-blaming paradigms. i support this statement "sarah moffat, women's officer at edinburgh university" (2013-11-15) i fully support this statement. "dr. maria do mar pereira" (2013-11-15) i fully support this statement. i support this statement "emma cunliffe" (2013-11-15) ethical principles for academic debate require that our expressed opinions be predicated on research and analysis rather than mere assertion.  newsworthiness is no excuse for academic institutions positioning the views of less-well informed commentators as if they had equal weight and substance as the carefully researched conclusions of those who have performed a lifetime of work in the field. i agree with this statement "ruth coustick" (2013-11-15) i support this statement. "debra parkes" (2013-11-15) dr. (centro de investigacion y docencia economicas, mexico) "catherine andrews" (2013-11-15) i support this statement i firmly support this statement "dr j allen-collinson" (2013-11-15) dr "paul simpson" (2013-11-15) i strongly support this statement policing academic freedom "paul hamilton" (2013-11-15) apparently, we are now in a neo-​victorian, post-​foucauldian era — in which the uneasy relationship between forms of knowledge and power — are simply dismissed from discussion. what is truly important is preserving the manichean dualism between “victim” and “sexual predator”, innocent and guilty, good and evil. yet, whose interest does this really serve? in america, more than 750 out of every 100,000 people are in prison (that is five times more than in britain). 14 million people are arrested every year. is it a coincidence that the prison system has expanded, starting in the 1980’s, at the same time as the victim’s rights movement has burgeoned? is it a coincidence that victim’s rights groups — who promote a polarized view of crime that serves the interest of those in authority — receive a billion dollars a year in government subsidies? the policing of polarized categories has the consequence of creating institutions that reflect a polarized world view. it advances britain further down a pathway to possessing a prison system like the one in america. hewson offered a historical and rhetorical perspective that was absolutely relevant to the discussion. it is also specifically relevant to your article arguing for the elimination of academic freedom in an issue of public interest. it is dangerous to exercise academic freedom of speech, but the attempt to police a pure orthodoxy strips away the only power that the individual has against the overwhelming authority of society. if the academy is no longer a place where these issues can be examined, our own freedoms are significantly curtailed. i support this statement. "louise pennington" (2013-11-15) i support this statement. dr. "ann rossiter" (2013-11-15) i support this statement "dr. ann rossiter" (2013-11-15) i agree with this. "janet veitch" (2013-11-16) we have very well founded evidence that fewer than 15% of rape victim's report what's happened to the police. around half those women who seek help from rape crisis do so about crimes that happened more than a year ago. both these figures point in one direction: that this is one of the small group of crimes that victims cannot talk about. creating a publicity machine that exacerbates this existing state of affairs is irresponsible in the extreme. it's even more disappointing to think that the lse which should be shedding light on difficult issues is designing a debate which is actually propagating myths. statement "elizabeth pickett" (2013-11-16) i entirely support this statement. student "lucy mccarthy" (2013-11-16) i support this statement. here, here "dr gethin rees university of southampton" (2013-11-16) positioning some activities and behaviours as more risky necessarily posits that those who take those risks are responsible for the outcome. there is no difference (as far as i see it) between acknoweldging risky behaviours and victim-blaming. risk "jan macvarish" (2013-11-19) i strongly support this statement. "christina kenny" (2013-11-16) in support "katharine a gilchrist" (2013-11-17) i support the statement. katharine a gilchrist, ba in law, uni of kent at canterbury, 1989 i agree "nicola barker" (2013-11-17) shequality matters magazine supports this statetment "shequality matters magazine" (2013-11-17) i support this statement "emily spiers" (2013-11-17) i support this statement "kheya bag" (2013-11-18) kheya bag i support this statement. "len lukowski" (2013-11-18) i support this statement. "caroline derry" (2013-11-18) i support this editorial by padmapriya s (2013-11-18) rape is a crime that tends to permanently alter and destabilise the lives of victims. it is important not to let a few publicity-seekers highjack a serious issue and convert it into a media circus. when 'exalted' institutions like lse start indulging in such cheap pr stunts, it should be doubly condemned. a response to the lse event "is rape different?" "mukesh kumar khatwani" (2013-11-18) i do agree and support this statement i support this statement "stu marvel" (2013-11-18) i support this statement "cathy norman" (2013-11-18) i support the editorial comment on rape "siobhan hunt" (2013-11-18) i support this statement. "katie hunt" (2013-11-18) ms "maryam jameela" (2013-11-18) in support of the statement i support this statement. "natalie jordan" (2013-11-18) i support this statement. i support this statement "gemma cobb" (2013-11-18) i support this statement. "blair ogden" (2013-11-18) i support this statement. 18/11/2013 i don't support this statement "james heartfield" (2013-11-18) not only is this a call for censorship, you ought to be supporting someone whi is insisting that rape is not 'different' but in fact a crime. if you think it is not a crime but a question of social administration, then you should argue against helen reece's eminently sensible point though if you are remotely honest, you will see that you will lose that argument. i support this statement "c. sweeney" (2013-11-18) i support this statement "nora honkala" (2013-11-18) no discourse is innocent "paul hamilton" (2013-11-18) i couldn't agree with you more though there are two more points i will make. i suspect that the vast majority of people who have signed this list have never watched the debate in its entirety. if they had, they would realize that the paraphrase above is profoundly deficient -  misunderstanding and missing central points in the debate. the other point i would make is that no one would argue that there are not harmful myths surrounding sexual violence. however, 'no' discourse is innocent. every discourse is complicit with power and when a discourse is polarized into "good" and "evil", orthodox and blasphemous, "goodie" and "badie", such as this one is it is very easy for those in authority to exploit it in order to consolidate and expand their own power. the slavish devotion given to the crown prosecutor in the article above without a hint of suspicion as to his own self-interest (and the state's) in his rhetoric is a perfect example. the idea espoused by this group, that some discourses should not be held up to historical and rhetorical scrutiny or analyzed for their uneasy pathways of alliance with 'various' interests both constructive and profoundly destructive is not only anti-intellectual, but really opposed to any form of productive academic discourse. a barrister and an academic are more than qualified to take part in the debate that took place. their analysis was historical, rhetorical, semnatic and, as a result, exactly relevant. one theme that was repeated in the debate was the supposed idea that, by debating this difficult issue, we would be going back in time. well, what this petition makes clear is that these so-called "academics" would like to erase the last forty years of intellectual history with its careful work analyzing the relationship between discourse and power so that they can promote a morality play view of an issue, regardless of the consequences. as i said, 'no' discourse is innocent. every single one needs to be subject to robust critique and scrutiny. if it is regarded as so sacrosanct as to be "above" scrutiny, then it is even 'more'  important to examine it to examine, specifically, what its origin is and who benefits from it. these are 'basic' questions that every academic should be committed to asking. if they are not, they should be asking themselves why they are not not condemning those who are. i was at the debate and strongly oppose your statement "jan macvarish" (2013-11-19) dear 'the editors' of feminists@law i attended the lse debate and utterly oppose this attempt to shut down debate. you say, 'we deplore lse law’s decision to give a platform to reece and hewson’s dangerous and unsupported views and its failure to engage responsibly with the public on such an important and sensitive issue as rape.' why on earth would the lse not 'give a platform' to one of its own academics? if you really believe helen's work is too 'dangerous' to be discussed in a public forum, then this has very serious implications for the publishing of views with which you disagree in a peer-reviewed journal or with the discussion of views with which you disagree in the lecture theatre or the seminar room. the logic of what you are arguing is that academics with whom you disagree should be silenced by others in the academic community or by their employers. i would hope that this is not what you really think. your view that lse law 'failed to engage responsibly with the public' suggests that you had little faith in the capacity of jennifer temkin and nazir afzal, who shared the platform on equal footing with helen reece and barbara hewson, to challenge the views with which they disagreed and to convince the audience of their arguments. your view also displays a particularly patronising view of 'the public' and its ability to engage with ideas without the interference of self-appointed intellectual chaperones. helen reece does not 'appeal to existing rape myths in society' this suggests that helen has some kind of 'agenda' to make it alright to rape women. this is ridiculous and disingenuous. your failure to engage seriously with the perfectly legitimate questions reece is raising indicate that you lost perspective on what a commitment to genuinely open academic or political exploration means. if you disagree with a point of view, your obligation is to destroy it through argument and scholarship, not through a cowardly appeal to authorities such as a person's employer or an institution hosting a public debate to withdraw the opportunity to discuss views other than your own. how do you develop your own scholarship and opinions if not through engagement with the views of others with whom you disagree? i would strongly urge others who disagree with this censorious enterprise to post here and to demonstrate how debate can be pursued rather than shut down. yours, dr jan macvarish, research fellow, chss, university of kent. associate professor, smith college "darcy buerkle" (2013-11-19) i support this statement. "darcy buerkle" (2013-11-19) dr. "cheryl hudson" (2013-11-19) this statement is a travesty. i support academic freedom and free speech and i strongly condemn this attempt to close it down. i support this statement "aoife o'donoghue" (2013-11-19) i support this statement "katie cruz" (2013-11-19) i agree "k bedford" (2013-11-19) i strongly disagree with your attempt to close down debate "sara hinchliffe" (2013-11-19) if feminists believe in their arguments they should be prepared to argue them with passion and logic not demand that their opponents be silenced. i support this statement "laura graham" (2013-11-19) i support this statement "david shulman" (2013-11-20) i support this statement "anne-marie stewart" (2013-11-20) dr "mia liinason" (2013-11-21) i support this statement i do not support this statement "sarah b" (2013-11-21) i don't support any statement which effectively stifles effective debate or discussion.  to censor discourse is to censor progress. to delete these attitudes is to delete the reality that these stereotypes exist.  hiding does not solve anything in the long run.  i am female and would actually encourage discourse on these stereotypes precisely because it could help people question them rather than ignore they exist. agree totally "sarah b" (2013-11-21) i do not support this statement "jenna james" (2013-11-21) it is a great shame that acadmics in this country call for censorship of ideas that they do not agree with. we should be setting an example of our faith in reason and rational debate, not resorting to the crude agent of social change censorship. shame on you for calling for this shame on you indeed. i support this statement "camille stengel" (2013-11-23) i strongly support this statement. that is not the standard of forward thiking rigour one would expect from such an august instituion. this article is a disgrace, and discredits ukc "xiao chen" (2013-11-23) was this article really written by feminist academics (or "academics"), or is it some kind of undergraduate spoof? i must admit to some difficulty believing that anyone who has studied at an advanced level, and is engaged in university teaching and research, could have produced an article that is at once so inaccurate, so confused, and that exhibits as much intellectual dishonesty as this piece. at the most basic level, this article seriously misrepresents what was said at the debate, as will be clear to anyone who takes the trouble to watch the video. the article notes that reece's points were rehearsed in a recent journal article, but neglects the abundant evidence for her position that was presented in that article, and fails to mention the rigorous peer-review process to which it had been subjected before publication. the claim that no evidence is available to support her postion can only be described, therefore, as a deliberate lie. in short, whover wrote this piece reallly has no business teaching at a university, and by presenting themselves as "feminist academics" they do great diservice to the cause of feminism. academics are capable of distinguishing fact from opinion; they are skilled at producing accurate summaries of arguments in order to respond to them; they habitually appraise the evidential base for claims, whether these claims are made in support or in opposition to their arguments. the authors of this piece do none of these things. feminism would be better off without "advocates" who display inaccuracy and intellectual dishonesty to the extent seen in this piece. equally, placing a piece of writing such as this in the public domain does ukc a very poor service: no reputable university would employ people whose ability to comprehend, report and argue was as limited as this.ugc5v8 the statement is inadequate and one-sided because... "boris johnson" (2013-11-24) at no point in the debate has anyone seriously considered the possibility that a man (or even a woman) could be morally responsible for being raped. yet surely this is the crux of the argument: many commentators believe (despite the absence of evidence, as reece demonstrates) that large sections of the population are gripped by "rape myths", the most insidious of wich is the view that most victims are morally responsible for their ordeal, so there is a need for serious consideration of the circumstances under which such a view could be appropriate, and a demonstration that such circumstances are (or are not) present in the majority of reported rapes. in this respect the men who are raped resemble cyclists rather than bicycles: the discussion in this linked article is extremely pertinent, and can be transposed to the issue of rape with only minimal revision. the outstanding question, of course, is that of justice for the many men whose lives are blighted by conviction for a rape when at least part of the moral responsibility rests with the survivor. surely it is not just that such men face humiliation and perhaps even a criminal record when they have merely gratified the unconscious urges of their so-called victims: http://www.huffingtonpost.co.uk/2013/11/22/cyclists-lord-james_n_4322518.html?utm_hp_ref=uk not in my name "linda" (2013-12-04) _____________________________________________________________________________________________ 4 _____________________________________________________________________________________________ 3 jennifer fraser the struggle to imagine he otherwise __________________________________________________________________________________ feminists@law vol 10, no 2 (2020) __________________________________________________________________________________ the struggle to imagine higher education otherwise: the transformative potential of diverse gender knowledges jennifer fraser[footnoteref:1]* [1: * principal lecturer, social sciences, university of westminster, uk. email: j.fraser@westminster.ac.uk thank you to raf benato, avi boukli and francis ray white who are friends and colleagues on the nbinhe project and whose support and encouragement made this writing possible.] this piece takes up flora renz’s challenge to think about education at the intersections of feminism, gender and changing understandings of equalities provisions to try to imagine what questions we need to ask in higher education to make universities and classrooms spaces that embrace gender diversity and see it as a catalyst for changing institutions themselves. many of us who have dedicated our working and activist lives to enacting change in higher education dream of different futures, futures in which students and teachers learn together in classrooms that are able to recognise and grapple with their imperialist, ableist, cisheterosexist roots while striving towards new understandings of our individual and collective selves, as well as our disciplines. gender and awareness of a multiplicity of genders (within and beyond binary genders) is an important axis along which we do this work. as bell hooks reminds us: feminist education – the feminist classroom – is and should be a place where there is a sense of struggle, where there is visible acknowledgement of the union of theory and practice, where we work together as teachers and students to overcome the estrangement and alienation that have become so much the norm in the contemporary university. most importantly, feminist pedagogy should engage students in a learning process that makes the world “more rather than less real”. (hooks, 2015 [1989]: 51) the type of feminist education that hooks argues for recognises the effort required to build learning communities, to come to know ourselves and the world in new ways. it also challenges us to ensure that the world outside the classroom is also inside the classroom and that our engagement with it is concrete and meaningful. this process is particularly important for students and staff whose gender is lived on the trans and non-binary spectrum and for whom there is often on-going work to do to bring together life inside and outside of the classroom. hooks’s vision for feminist pedagogy involves working together as teachers and students, which, in a very practical sense, invokes similar understandings of community to that used by the participants in renz’s interviews. this is not to reify ideas of community. education, like most other public sector or activist spaces, is full of tensions and disagreements. one of the challenges of feminist and other pedagogies then is to centre relational processes. as yahlnaaw insists in her call for decolonising the relationships of higher education: ‘research is not just about stuffing a jar full of knowledge for the sake of keeping it on a shelf in your basement; research is about putting yourself and your relationships into your work because they are your work’ (2019: 8). building educational communities that centre relationship in feminist and decolonial ways is a complex, messy and necessary part of any work that we do toward opening ourselves and our institutions to the transformative potential of diverse gender knowledges. a significant issue that higher education institutions face is that of scale. renz’s piece provides an example of a head teacher who is able to work pastorally with every student, to know them as individuals and to consider their relationship to the community that is formed in their school (renz, this issue). while there are still administrative issues that they struggle to resolve for trans and non-binary students, there appears to be space for senior staff to engage relationally with students. universities, such as the one that i work at, have over 20,000 students spread over four london campuses and two international campuses. it is literally impossible for the head of a university, such as the vice-chancellor who is ultimately responsible for the whole institution, to know every student. instead, students have multiple sites of interaction with universities: academic (learning & teaching, libraries etc.), social (student union, housing etc.) and administrative (registry, finance etc.). this makes it a challenge to ensure the type of holistic experience that a student might have during their secondary education continues when they come to university. a sense of community needs to be established in much smaller scales, such as in a classroom or at a course level. the differences between secondary and university education can lead to experiences of alienation and disengagement for all students, but especially for trans and non-binary students when they bump up against institutional frameworks and processes that do not recognise their genders. this can also take the form of microaggressions from other students and staff, the cumulative effect of which is disengagement from learning. while the scale of higher education seems to mean that universities, unlike the participants that renz interviewed, prioritise policies that aim to create a standardised experience, there is an urgent need to understand how trans and non-binary students actually experience higher education and importantly how they can thrive academically and socially in these spaces. the question of what we need to do to make higher education a place not just to survive but to thrive is fundamental to the research and teaching that many of us as trans and non-binary academic staff do. as a member of the non-binary genders in higher education: lived experiences, imagined futures project (https://nbinhe.com ) i am particularly invested in understanding not just our current realities by paying attention to the lived experiences of non-binary people as we navigate institutional life, learning, teaching and research, but also the futures that we can collectively imagine and enact. the survey that the project conducted in the early part of 2019 made clear the tensions that currently exist for non-binary people in higher education. we surveyed higher education students at all levels as well as staff who teach across the uk. 78.4% (284 of 362) survey respondents answered on a five-point likert scale that it was either very important (43.9%; n=159) or somewhat important (34.5%; n=125) that people at the university know their gender and treat them accordingly. nonetheless, 40.7% of students, 33.3% of phd students and 34% of teaching staff reported that they had not been able or would not have been able to do basic life administration, such as indicate their preferred name or pronoun, or have an appropriate gender marker on their record, at their university. furthermore, 41% of students reported that they are not able to be open with their teachers about their gender. so, while significant numbers of our survey respondents clearly would like universities to know their gender both in terms of infrastructure and teaching environments, something is happening that does not make this possible. one of the most troubling findings of our research is that it confirms that many non-binary students and staff expend a great deal of mental, physical and emotional energy attempting to achieve a base level of administrative consistency and recognition. so, one of the challenges that higher education faces is to ensure that the basic infrastructure that non-binary people need is in place so that they can focus on learning, teaching and research, which are ostensibly the reasons why many students and staff are at university. beyond this, we also need to create opportunities to dream different futures, futures in which non-binary genders are not just incorporated into university life but in which they are actively challenging, shaping and transforming it. while our study focusses specifically on non-binary people, others such as lawrence and mckendry (2019) have researched the experiences of trans and non-binary people in scottish higher education and have also made calls for change as a result. their excellent guide offers practical advice to institutions on how to make themselves accessible and welcoming to trans and non-binary students and staff. other organisations such as stonewall and the national union of students also regularly issue guidance and support documents on inclusion in education. so, the information, support and guidance is available to higher education institutions if they wish to engage with it. much of what is available though focusses on the more social and administrative aspects of student journeys through university. beyond this i believe that we need to be asking a different set of questions: 1. what do these challenges mean for establishing an educational ethos, especially in higher education? how can a diversity of gender knowledges and experiences transform universities, especially our approaches to learning and teaching, as well as disciplinary knowledges? 2. how do we ensure that trans and non-binary students are full members of learning communities across their educational journeys and not just in primary and secondary education? 3. how do we move beyond the freedom of speech vs. non-discrimination binary that paralyses so much discussion at the moment? in other words: how do we create an environment in which we can challenge persistent discrimination and oppression on the basis of gender while at the same time creating spaces where students and staff are not subjected to microaggressions and structural oppressions around their gender (and additional) identities and can instead focus on learning, teaching and research? 4. how do we undertake all of this work from intersectional, decolonising and liberatory positions? to return to renz’s article and the questions it poses, we need to consider the spaces of learning and what they offer in terms of being (or not being) gendered. specifically, we need to consider what feminist and decolonising teaching looks and feels like, what the relationships that emerge between students and teachers there might hold for transforming learning and, especially, how trans and non-binary genders can transform educational spaces themselves. for classrooms hold disruptive and transformative potential: the academy is not paradise. but learning is a place where paradise can be created. the classroom, with all its limitations, remains a location of possibility. in that field of possibility we have the opportunity to labor for freedom, to demand of ourselves and our comrades, an openness of mind and heart that allows us to face reality even as we collectively imagine ways to move beyond boundaries, to transgress. this is education as the practice of freedom. (hooks, 1994: 207) it is an urgent task for us in higher education to embrace education as the practice of freedom, to imagine it otherwise and to collaboratively create spaces for diverse gender knowledges to transform us. references hooks, b. (1994) teaching to transgress: education as the practice of freedom, new york: routledge. hooks, b. (2015 [1989]) talking back: thinking feminist, thinking black, new york: routledge. lawrence, m. and s. mckendry (2019) supporting transgender and non-binary students and staff in further and higher education: practical advice for colleges and universities, london: jessica kingsley publishers. yahlnaaw (2019) t’aats’iigang: stuffing a jar full. international journal for students as partners 3(2): 6-10. __________________________________________________________________________________ 6 __________________________________________________________________________________ 5 liat ben-moshe and linda steele introduction to the symposium __________________________________________________________________________________ feminists@law vol 12, no 1 (2023) __________________________________________________________________________________ introduction to the symposium – decarcerating disability, criminal justice and law: new writing on disability, abolition and the limits of rights liat ben-moshe[footnoteref:1]* and linda steele[footnoteref:2]** [1: * associate professor and graduate director, criminology, law and justice, university of illinois at chicago, usa. email lbenmosh@uic.edu] [2: ** associate professor, faculty of law, university of technology sydney, australia. email linda.steele@uts.edu.au] abstract liat ben-moshe and linda steele introduce a symposium on their 2020 publications decarcerating disability: deinstitutionalization and prison abolition (ben-moshe) and disability, criminal justice and law: reconsidering court diversion (steele). ben-moshe and steele introduce their own books and then identify connections between the books. they situate their discussion in the anti-carceral activism that emerged during 2020 and in longer term activist and scholarly work on deinstitutionalisation, prison abolition and rights in the criminal justice system. introduction this symposium came out of happenstance in pandemic time. both our books came out during may 2020, in the early covid-19 pandemic at a time of global lockdowns, into the void and much uncertainty. 2020 was also a year that saw the largest anti-racism mass mobilisations in the usa, when many people got ‘woke’ to the possibility and indeed necessity of a non-carceral world. as both our books show, many of these visions of a new world, which draw on longer term activist and scholarly work on prison abolition and rights in the criminal justice system, do not necessarily place disability/madness at their core. indeed, the suggested alternatives to carcerality central to these visions could have the unintended and perverse consequence of expanding ableism and sanism and further entrenching incarceration of and state violence against disabled people. thus, these visions of a new world could negatively impact those most marginalised and affected by state violence, notably disabled, indigenous, people of colour and particularly people with intellectual and psychiatric disabilities. for example, proposals to defund the police and direct funding into social welfare and health could inadvertently enhance the coercive powers of mental health practitioners and social workers, and proposals to close prisons could leave intact other enclosed settings where disabled people are detained, such as forensic mental health centres, psychiatric facilities, group homes, nursing homes and residential facilities. these are the exact forces we discuss in our respective books and the pendulum swings between reform and abolition they produce. the pandemic has also brought new relationalities and international solidarities. from our homes in the traditional unceded homelands of the council of the three fires: the ojibwe, odawa, and potawatomi nations on turtle island (aka chicago, usa where liat ben-moshe resides) and the unceded lands of the wadi wadi people of dharawal country in the illawarra region of new south wales, australia (where linda steele resides), we were fortunate to be on virtual calls and discussions of our work in australia, europe, usa and canada (sometimes in the same day!), that were not possible beforehand. this symposium gathers some of these conversations from interlocutors engaged with, and sources of inspiration for, our work, especially from the field of law and society (broadly defined). we hope you read this as both an extended ‘author meets readers in law and society’ and also as an intervention into a much-needed discussion about decarceration, disability, abolition and social justice, one in which law is both a potential tool of change and source of violence and harm. we also hope that the brief and open access format of the symposium will lend itself to use in teaching and teach-ins. this symposium also provides a conversation to guide our continued work, with contributors connecting our books to significant events and political developments that have unfolded since we finished writing them in 2019. since the spread of covid-19 and governments’ lack or lagging response to it, there is renewed engagement with the issue of deinstitutionalisation in the context of the range of carceral spaces in which disabled people are confined, including large residential centres, nursing homes and group homes.[footnoteref:3] at the same time, in usa and australia and in other locales globally, there is increased public and media attention to state violence associated with policing and calls to defund police and utilise alternatives to criminal justice systems for regulating the public and responding to harms. in australia, much of this work has been led by first nations women, thus centering the intersections of decarceration and decolonisation.[footnoteref:4] in the usa, these frameworks owe much to black feminist liberation struggles and analysis.[footnoteref:5] [3: in the usa, see jasmine harris, ‘disability law on the frontlines’ (2020) 106 cornell law review online. see also jess whatcott and liat ben-moshe. ‘abolishing the broom closets in omelas: feminist disability analysis of crisis and precarity’ (2021) 33(3) feminist formations 1. in australia, see claire spivakovsky and linda steele, ‘disability law in a pandemic: the temporal folds of medico-legal violence’ (2022) 35(2) social and legal studies 175.] [4: see, e.g., paul gregoire, ‘questionable jurisdiction: academic amanda porter on policing first nations’, sydney criminal lawyers (28 may 2021) https://www.sydneycriminallawyers.com.au/blog/questionable-jurisdiction-academic-amanda-porter-on-policing-first-nations/; tabitha lean, ‘why i am an abolitionist’, overland (8 june 2021) https://overland.org.au/2021/06/why-i-am-an-abolitionist/.] [5: mariame kaba, we do this ‘til we free us: abolitionist organizing and transforming justice (haymarket books, 2021); angela y davis, are prisons obsolete? (seven stories press, 2011); angle y davis, gina dent, erica r meiners, and beth e richie, abolition. feminism. now (haymarket books, 2022).] as a result, calls for accountability and repair in response to injustices against disabled people are beginning to emerge more vocally. in usa, the massachusetts legislature in 2022 has funded a commission on the history of state institutions for people with developmental and mental health disabilities.[footnoteref:6] the australian royal commission into violence, abuse, neglect and exploitation of people with disability which was established in april 2019 is tasked with recommending how to prevent and respond to violence, abuse, neglect and exploitation of people with disability, and build a more inclusive society.[footnoteref:7] the royal commission has noted in its interim report that it will further explore redress,[footnoteref:8] and activists and scholars who have been advocating for redress eagerly await the royal commission’s final report in september 2023. at an international level, the united nations committee on the rights of persons with disabilities (crpd committee) recently published guidelines on deinstitutionalisation, to assist states parties to the convention on the rights of persons with disabilities in realising the right in article 19 of the convention to live independently and be included in the community.[footnoteref:9] the guidelines continue the necessarily provocative work of the crpd committee in challenging the ongoing pervasiveness of institutionalisation and segregation, and add a new dimension in providing a detailed overview of the right to remedy and reparations for institutionalisation. [6: ‘special commission on state institutions’, fy 2023 budget summary https://budget.digital.mass.gov/summary/fy23/outside-section/section-144-special-commission-on-state-institutions. for background context, see asia london palomba, ‘the quest to honor disabled patients buried in anonymous graves’, atlas obscura (1 july 2021) https://www.atlasobscura.com/articles/metfern-cemetery.] [7: terms of reference, commonwealth letters patent, 4 april 2019, https://disability.royalcommission.gov.au/publications/commonwealth-letters-patent.] [8: royal commission into violence, abuse, neglect and exploitation of people with disabilities, interim report (october 2020) 258 https://disability.royalcommission.gov.au/system/files/2020-10/interim%20report.pdf.] [9: committee on the rights of persons with disabilities, guidelines on deinstitutionalization, including in emergencies, un doc crpd/c/5 (10 october 2022).] these developments over the past few years underscore the critical possibilities of our books to contribute to new ways of understanding and strategising relationships between disability, abolition, and deinstitutionalisation as decarceration; as much as they also necessarily prompt us to continue to push our thinking as new challenges emerge to these frameworks. we are grateful to the interlocutors in this symposium for forging some of these connections between our books, and the work yet to be done. we are grateful to feminists@law for providing a forum for this symposium. although both books are foucauldian (critique narratives of progress, utilise a genealogical analysis and provide an analysis of biopolitics and disciplinary power), feminist theory and activism are central to our analysis of power and our broader abolitionist vision. while the feminist threads of the books are explored in greater detail by some of the contributors in the symposium (e.g. dinesh wadiwel and deb parkes), here we introduce three dimensions of our feminist engagement. we then situate each book and its aims, briefly connect the books with our broader research, and finally introduce the contributors. feminist inspirations both books are indebted to feminist of color analysis (especially indigenous and black). in decarcerating disability, ben-moshe constructs a crip/mad of color analysis of decarceration and abolition. abolition as a term, demand and practice, has a lineage connecting it from transatlantic slavery to present-day imprisonment. it is rooted in black history and liberation movements. as feminist abolitionists like beth richie, angela davis, gina dent, erica meiners[footnoteref:10] and others point out, a feminist and queer analysis of what has come to be called the prison-industrial complex can shed light not only on those incarcerated who identify as women or gender nonconforming but on the entire rationale of segregation, punishment and incarceration.[footnoteref:11] crip/mad of color critique is about centering the experiences of disablement, sanism and ableism in criminal, racial and social justice movements. it is a critique of power, centering the knowledge of those who resist the entanglements of the therapeutic carceral state. building on cathy cohen’s provocation, it is a call to coalitional praxis.[footnoteref:12] [10: davis et al., above n 3.] [11: davis, above n 3.] [12: cathy j cohen, ‘death and rebirth of a movement: queering critical ethnic studies’ (2011) 37(4) social justice 126.] turning to disability, criminal justice and law, steele engages with the work of feminist critical race scholar sherene razack in two respects. first, she draws on razack’s work on the pathologisation of first nations people through illness and disability. razack argues in the context of coronial inquiries into first nations deaths in custody that pathologisation enables narratives of inevitable decline and death that justify state violence and irresponsibility.[footnoteref:13] steele applies this argument to the way in which the disability legal framing of criminalised disabled people through court diversion enables state violence in the form of coercive interventions through disability and mental health services. second, steele draws on razack’s work on anti-colonial pedagogies[footnoteref:14] to propose the need for critical disability legal pedagogies as one strategy to dismantle the role of the legal profession in criminalised disabled people’s carceral control and debilitation. [13: sherene razack, dying from improvement: inquests and inquiries into indigenous deaths in custody (university of toronto press, 2015).] [14: sherene razack, looking white people in the eye: gender, race, and culture in courtrooms and classrooms (university of toronto press, 1998).] second, both books engage with feminist disability scholarship, particularly its analytical tools on intersectional dynamics of violence and oppression. for ben-moshe, it is important to enact crip/mad of color critique as methodology but also epistemology – a critique of power that comes from those in proximity to pathologisation, negative racialisation and criminalisation and have a politics of depathologisation (mad, crips, disabled and those who do not identify as such or are not politicised as such, partially because of forces of ableist repression and state abandonment (maiming, infrastructural implosion, selective and by design), or because of lack of a desire for identification or even dis-identification). as such she builds on the work of feminist disability scholars and mad studies more broadly, through their adjacent disability and mad cultures. steele also draws on the work of feminist disability scholars, especially alison kafer and eunjung kim, on the intersections of temporality, gender, disability and violence. by reference to their work, steele problematises the inevitability in court diversion of coercive intervention in the bodies and lives of disabled people.[footnoteref:15] [15: alison kafer, feminist, queer, crip (indiana university press, 2013); eunjung kim, curative violence: rehabilitating disability, gender, and sexuality in modern korea (duke university press, 2016).] third, both books contribute disability-centred perspectives to feminist debates – also often engaged with foucauldian theory – about engaging with law reform and its dangers. in disability, criminal justice and law, steele’s analysis of court diversion highlights three dimensions of feminist debates. first, steele’s critique of the limits of law in unseating ableist hierarchies and social realities that shape particular disability-specific laws (such as court diversion) and of foundational legal concepts at the core of jurisdiction, legal personhood and sovereignty, provides a disability example of carol smart’s critique of the reproduction (rather than abolition) of women’s oppression through legal reform.[footnoteref:16] second, steele’s critique of the construction of the ‘problem’ of criminalised disabled people in the criminal justice system as one of ‘overrepresentation’ (which implicitly assumes a certain equal representation in the criminal justice system is ever possible, thus erasing the hierarchies and violence on which criminal law and the criminal justice system rests) speaks to the critique advanced by reg graycar and jenny morgan that the emancipatory possibilities of legal reform for women are undermined by the narrow scope and terms of reference of law reform inquiries which are themselves informed by oppressive and exclusionary approaches to women.[footnoteref:17] third, steele’s critique of the role of psychological and psychiatric experts, rather than disabled people themselves, in controlling the ‘truth’ of disabled people’s existence – a truth which also constructs disabled people as irrational, incapable and dangerous – provides a contemporary, disability example of the argument advanced by maria drakopoulou in the context of eighteenth and nineteenth century women that legal reform takes place within the frame of a particular episteme that authorises certain ways of knowing and sources of knowledge.[footnoteref:18] steele’s analysis highlights the impossibility of disabled people having a politically authorised role in legal reform and in turn the risk that legal reform can enable epistemic and ontological violence. indeed, these three concerns with legal reform are so significant that in the penultimate chapter of disability, criminal justice and law steele offers a range of strategies that ‘de-centre’ law, explicitly framed as alternatives to or contestations of legal reform. [16: carol smart, feminism and the power of law (routledge, 1989).] [17: reg graycar and jenny morgan, ‘law reform: what's in it for women?’ (2005) 23(2) windsor yearbook of access to justice 393.] [18: maria drakopoulou, ‘feminism and the siren call of law’ (2007) 18 law critique 331. ] as ben-moshe shows regarding the concept of carceral ableism and sanism, feminist scholar-activists such as dean spade,[footnoteref:19] beth richie,[footnoteref:20] andrea ritchie[footnoteref:21] and others show that liberal approaches (legal protection, rights) to end or reduce state violence and organised abandonment (gilmore’s term[footnoteref:22]) often results in demands to expand existing legal frameworks to accommodate marginalised populations rather than changing the status quo. this expansion is what abolitionists often term as reform measures, which increase the scope of harm (in this case, of incarceration as state violence in the lives of people with disabilities). for example, recent critiques of solitary confinement call for screening for mental health issues and the release of those with such issues from these types of confinement. but calling for certain populations to be released from jails and prisons often sends them to be reincarcerated in other institutions or by other means, including by forced drugging or by indefinite detention in detention centres, psychiatric hospitals or psych forensic units. it also legitimates the incarceration of all others who are not screened out, instead of abolishing the practice altogether. [19: dean spade, normal life: administrative violence, critical trans politics, and the limits of law (duke university press, 2015).] [20: beth e richie arrested justice: black women, violence, and america's prison nation (new york university press, 2012).] [21: joey l mogul, andrea j ritchie, and kay whitlock. queer (in) justice: the criminalization of lgbt people in the united states (beacon press, 2011).] [22: ruth gilmore wilson, change everything: racial capitalism and the case for abolition (haymarket books, 2021).] liat ben-moshe on decarcerating disability the book is a project of activating a history of struggles and connecting movements and logics that have been intersecting but not visibly so: prison abolition, anti-psychiatry and deinstitutionalisation in the field of intellectual and developmental disabilities (i/dd). in my larger body of work, i analyse incarceration as something that happens in various carceral enclosures and through various carceral logics that are intimately connected to disability/madness (such as nursing homes, psych facilities, group homes, prisons, asylums, etc.).[footnoteref:23] in addition, sites of confinement (even if not disability specific) like immigration detention and prisons are sites of debilitation and disablement. we need to understand the connection between sites of incarceration, not through analogies or oppression olympics. if the network of incarceration is connected, then the means for liberation must connect as well. this is what led me to link deinstitutionalisation and disability justice to prison abolition. [23: liat ben-moshe, chris chapman and allison c carey (eds), disability incarcerated: imprisonment and disability in the united states and canada (palgrave macmillan, 2014). ] to those who claim that prison abolition and massive decarceration are utopian and could never happen, this book shows that they’ve happened already, although in a different arena, in the form of mass closures of disability residential institutions and psychiatric hospitals and the deinstitutionalisation of those who resided in them. i suggest that it is essential to interrogate deinstitutionalisation as a social movement, a mind-set, a logic to counter carceral logics. i argue that deinstitutionalisation is not just something that ‘happened’ but was a call for an ideological shift in the way we react to difference among us. this interpretation showcases the gains that deinstitutionalisation made in the ways we treat disability and madness. i mean treatment both in terms of impetus to therapeutically ‘treat’ disability, but also in terms of social and cultural treatment, a shift in perspective towards disability rights, inclusion and perhaps justice. by viewing deinstitutionalisation in this way, this book brings to the forefront the critiques that disability/madness conjures up regarding rehabilitation, medicalisation and community. the book also offers critiques of deinstitutionalisation and the ways it fortifies a narrow liberal approach to liberation through the framework of inclusion in specific able-racial-gendered capitalist formations. but instead of learning from the lessons of deinstitutionalisation for abolition and understanding it as the largest (legal) decarceration shift in usa history, it is repeatedly (wrongly and dangerously) blamed for the rise of mass incarceration in the usa. it is often implied that the main reason that people with psychiatric disabilities ended up in prisons and jails is because of the closure of psychiatric hospitals from the early 1960s. such claims amplify critiques that condemn the deinstitutionalisation movement as irresponsible and ‘leaving people in the streets’ and calls to ‘bring back the asylum’. but as i show, deinstitutionalisation didn't lead to homelessness and increased incarceration; racism and neoliberalism did, via privatisation, budget cuts in all service/welfare sectors and little to no funding for affordable and accessible housing and social services while the budgets for corrections, policing and punishment (of mostly poor people of colour) ballooned. deinstitutionalisation led to shrinking psych facilities at the same moment that tough-on-crime policing began to take hold. but this had less to do with deinstitutionalisation and more to do with shifts in ideology, political economy[footnoteref:24] and state capacities and priorities.[footnoteref:25] this ‘tough on crime’ and new policing strategies (like broken windows) that emerged at that time were of course race motivated and added to what i call race-ability, the embeddedness of racial tropes in constructing ability and disability: criminalisation entails the construction of both race (especially blackness) and disability (especially mental difference) as dangerous. [24: jean stewart and marta russell, ‘disablement, prison, and historical segregation’ (2001) 53(3) monthly review 61; marta russell, beyond ramps: disability at the end of the social contract: a warning from an uppity crip (common courage press, 1998).] [25: ruth wilson gilmore, golden gulag: prisons, surplus, crisis, and opposition in globalizing california (university of california press, 2007).] i show in the book how the discourse of respectability connects resistance to racial desegregation in the 1950s (and the creation of segregated neighborhoods to this day) and nimby (not in my backyard) practices against the construction of group homes. to understand this phenomenon, i utilise the neologism dis inc: i am using the word ‘incorporated’ to signal both the cultural and social incorporation of minority difference[footnoteref:26] into the status quo; and incorporation as a structure of political economic profit making (raking in profits from incarceration and disposability under capitalism through group homes, halfway houses, prisons). i also discuss the drawbacks of inclusion, the other side of dis inc – the incorporation of disability or ‘the disabled’ as a legitimate citizen, while erasing its uniqueness and difference. in other words, disability and people with disabilities should be welcome into the community, as long as they don't act or look transgressive, by race, class, sexuality, disability and more. [26: grace kyungwon hong and roderick a ferguson (eds), strange affinities: the gender and sexual politics of comparative racialization (duke university press, 2011).] therefore, one aim of this book is to construct and activate a genealogy of the largest decarceration movement in usa history: deinstitutionalisation. by connecting deinstitutionalisation with prison abolition, i also elucidate some of the limitations of disability rights and inclusion discourses and of tactics like litigation. one of my hopes is that such discussion grounds us more in understanding institutionalisation and housing segregation (for example) as state violence, a framework that has not anchored much scholarship and activism in disability fields. in so doing, i hope that we can build coalitions between queer, racial justice and disability justice organising. i elucidate this need by highlighting what i call crip/mad of color critique. as discussed at the beginning of this introduction, crip/mad of color critique builds on analysis offered by cathy cohen,[footnoteref:27] dean spade[footnoteref:28] and others who urge us to frame issues of criminalisation and incarceration through what rod ferguson[footnoteref:29] described as a queer of color critique. such critique questions traditional white liberal approaches to these problems (such as calls requiring more legislation, incorporation within the system, etc.) and instead urges us to understand them through an intersectional lens that has a broader analysis of oppression and what liberation might be. following such a framework, i demonstrate what crip/mad of color critique of incarceration adds. as jina kim suggests, ‘as methodology, a crip-of-color critique examines how the language of disability undergirds the ongoing erosion of public resources alongside other forms of state-sanctioned violence.’[footnoteref:30] such ‘cripping’, as mcruer[footnoteref:31] suggests, is an analytical frame and does not necessitate looking for diagnostic evidence of disability. in other words, the analysis offered in this book about deinstitutionalisation and/as abolition, is not just about those who identify or are politicised as disabled people of color who are caught up in carceral systems (although it’s important to recognise the high numbers of disabled people, especially those of color, in punitive, carceral and policing regimes). it’s about centering carceral sanism and ableism and highlighting the entanglements of the therapeutic and carceral state. through it, madness/disability broadens our conceptualisation of incarceration as something that happens not only through criminal justice pathways – but also in psych facilities, through chemicals, treatment orders, nursing homes and outside them. as such, it points to the need to connect disability/mad studies and knowledges to critical prison studies and abolition scholarship and knowledge. [27: cathy j cohen, ‘punks, bulldaggers, and welfare queens: the radical potential of queer politics?’ (1997) 3(4) glq: a journal of lesbian and gay studies 437; c cohen, ‘death and rebirth of a movement: queering critical ethnic studies’ (2011) 37(4) social justice 126.] [28: spade, above n 17.] [29: roderick a ferguson, aberrations in black: toward a queer of color critique (university of minnesota press, 2004).] [30: jina b kim, ‘cripping the welfare queen: the radical potential of disability politics’ (2021) 39(3) social text 79.] [31: robert mcruer, crip theory: cultural signs of queerness and disability (nyu press, 2006).] the first part of the book conceptualises decarceration. i begin with a two-part genealogy (origin story, birth narrative, history of ideas) of deinstitutionalisation (chapters 1 and 2). chapter 3 conceptualises what carceral abolition is. i posit that abolition is an epistemology and an ethical demand towards a non-carceral future. the second part of the book focuses on resistance to decarceration. my case studies are: debunking the thesis that prisons became the new asylums; resistance to community living (housing desegregation) through the lens of race-ability; and the resistance to and fight for closure of institutions and prisons from the triad of parents of those institutionalised and incarcerated, unions and employees of these facilities, through the lens of labour and feminist care. i end with the vexed relation between abolition and decarceration. i analyse the complex role legal efforts, especially class action (institutional reform) litigation, played in the closure of carceral enclosures (prisons and disability institutions). i show that the focus on deplorable conditions may have assisted in shaping the public’s view as to the abuses taking place. it also politicised those incarcerated and institutionalised and their allies in important ways and brought on real changes (such as feminist struggles for more visitation, religious rights, health care, etc.). but it did not lead to abolishing these spaces of confinement or target their legitimacy, only their exceptionality. instead, litigation led to calls to reform these facilities, which often aided in their expansion or entrenchment. i conclude the book with a discussion of current ‘alternatives’ that expand the carceral state through carceral ableism and sanism: the praxis and belief that people with disabilities need special or extra protections, in ways that often expand and legitimate their further marginalisation and incarceration. connections to steele’s work i became aware and intrigued by steele’s work through reading her previous articles.[footnoteref:32] i often teach her piece ‘disabling forensic mental health detention’ in my criminology disability courses, as a way to introduce students to critical socio-legal scholarship that takes disability not just as core of analysis, but shows how disability is constructed by and through the law. [32: especially linda steele, ‘troubling law’s indefinite detention: disability, the carceral body and institutional injustice’ (2021) 30(1) social & legal studies 80; linda steele, ‘disabling forensic mental health detention: the carcerality of the disabled body’ (2016) 19(3) punishment & society 327.] her book (disability, criminal justice and law) is remarkable as a socio-legal analysis not (just) of disability law and rights but of the role law plays in creating disability. steele shows how, through specialised courts and regulations, the law constructs disability, it disables. it also criminalises, or constructs disability as an (a special) object of legal intervention, what steele terms here and elsewhere as ‘disability-specific lawful violence’. the law is a mechanism of debilitation. specialised legal treatment of disability is masked in benevolence, the appearance or assumption that court diversion (what might be, wrongly, called ‘alternatives to imprisonment’) is a service to benefit disabled and mad people, one not rooted in racism, colonialism and coercion. but as she shows (in the context of various anglo contexts like canada, australia and the uk), court diversion captures disabled/mad people who otherwise might not even be under criminal justice supervision. court diversion is not an alternative to incarceration or a therapeutic antidote to criminalisation; it is another building block of what others call the pic (prison-industrial complex) or the institutional-archipelago; it maintains the logic and function of disability incarceration. her argument belies conventional analysis and disability advocacy, which often decries the lack of access to resources that criminalised disabled people face. steele shows that special treatment or the production of disability resources is not a boon to disabled (or disablised criminalised) people; it is as harmful as its lack. and both the lack of resources and their abundance (through coercive state mechanisms) is filtered through race, colonialism, class, gender and more. steele’s book, like my own, offers an important critique of inclusion and rights policies and discourses: it’s not about lack of access to services, but the nature and legitimisation of these services. through focusing on the role of the law in constructing disability (and hierarchising it), steele shows the problem with (legal) inclusion – it constructs, preserves, naturalises and increases the threshold of seemingly legitimate (criminal justice) control and (state) violence. i wholeheartedly agree with her important suggestion that ‘we must approach court diversion as part of a much bigger, systemic problem with law that we need to resist – the inclusion in legal doctrine and legal process of disability as a lawful and legitimate basis on which to circumvent equality for disabled people in the criminal justice system and to drastically shift the thresholds of permissible control, violence and injustice’.[footnoteref:33] [33: linda steele, disability, criminal justice and law: reconsidering court diversion (routledge, 2020) 1.] more specifically, in regard to current discourses and policies that seem beneficial and benevolent, steele suggests that mechanisms like ‘[c]ourt diversion stratif[y] disabled populations in a deinstitutionalisation era to sustain the ongoing inequality and relative deprivation and precarity of those who are criminalised, even in the face of disability rights’.[footnoteref:34] i would add that, as many[footnoteref:35] show, it is not just in face of (disability) rights that these mechanisms flourish, but perhaps because of them. [34: ibid 17.] [35: spade, above n 17; chandan reddy, freedom with violence (duke university press, 2011).] steele’s work engages with and expands what i called in decarcerating disability racial criminal pathologisation – the ways these three processes or techniques of power are entangled and co-constitutive, for example that criminalisation entails the construction of both race (especially blackness) and disability (especially mental difference) as dangerous. as she states: ‘i use criminalised disabled people to refer to disabled people in the criminal justice system. … this term more accurately reflects the deep entanglements of criminality and disability in terms of how control by law becomes possible and legitimate through disability for certain bodies marked as unfit and deviant (including those who are racialised, poor and/or indigenous or first nations), rather than ‘disability’ (as an a priori state of being) and ‘criminal justice’ being separate.’[footnoteref:36] as she further elaborates: ‘disabled people who are of racialised minorities might be particularly targeted for discrimination and other harms in prison, including because of racialised perceptions of their behaviour that invite particularly punitive rather than therapeutic responses to their disability.’[footnoteref:37] [36: steele, above n 31, 12.] [37: ibid.] steele’s book also works to expand what carcerality means, much beyond the prison or institution walls. her work contributes to critical analysis of so-called alternatives to incarceration.[footnoteref:38] her analysis of court diversion highlights that often what we think of as alternatives or reforms to injustice, actually strengthen the system (what i called carceral ableism/sanism). for a poignant example, steele discusses in chapter 1 the issues with the concept and practice of mental health courts, a phenomenon we see now in the usa in full force (for example the recent introduction of care courts in california[footnoteref:39]). [38: maya schenwar and victoria law, prison by any other name: the harmful consequences of popular reforms (the new press, 2020).] [39: california’s governor’s ‘new plan to get californians in crisis off the streets and into housing, treatment, and care. the community assistance, recovery and empowerment (care) court is a new framework to get people with mental health and substance use disorders the support and care they need’: governor of the state of california, governor newsom’s new plan to get californians in crisis off the streets and into housing, treatment, and care (fact sheet, 2022) https://www.gov.ca.gov/wp-content/uploads/2022/03/fact-sheet_-care-court-1.pdf.] as a whole, steele’s work expands carceral studies and highlights the central role that settler/race-ability plays in it. first, steele’s recent work extends her analysis of carcerality to care homes/nursing homes, dementia units and other sites we don’t typically think of as forms of imprisonment and carcerality.[footnoteref:40] second, in this book she shows how forms of diversion extend carcerality and control to other locales (psych facilities, community treatment orders). [40: sara dehm, claire loughnan and linda steele, ‘covid-19 and sites of confinement: public health, disposable lives and legal accountability in immigration detention and aged care’ (2021) 44(1) university of new south wales law journal 59; linda steele, kate swaffer, ray carr, lyn phillipson and richard fleming, ‘ending confinement and segregation: barriers to realising human rights in the everyday lives of people living with dementia in residential aged care’ (2021) 26(2) australian journal of human rights 308; linda steele, ray carr, kate swaffer, lyn phillipson and richard fleming, ‘human rights and confinement of people living with dementia in care homes’ (2020) 22(1) health and human rights 7; linda steele, kate swaffer, lyn phillipson and richard fleming, ‘questioning segregation of people living with dementia in australia: an international human rights approach to care homes’ (2019) 8(3) laws 1.] third, steele expands carcerality beyond locales or even logics to an analysis of how these attach to bodies/subjectivities. through a foucauldian analysis she shows how court diversion and the law recapitulate to a medical diagnostic model, which then follows the person and in so doing brings carcerality wherever the person goes. as she states: ‘drawing on ideas of biopolitical subjectivity, i argue that court diversion transforms criminalised individuals from criminal legal subjects known and acted upon by reference to the criminal offence to disabled legal subjects known and acted upon by reference to their disability (as a medical phenomenon).’[footnoteref:41] [41: steele, above n 31, 81.] community treatment orders, court diversion and specialised courts, forensic detention and other forms of punishment of people designated as criminalised disabled, are not attached to a particular material, architectural space or a particular court order, but instead attach to individuals’ bodies via medico-legal designations as disabled. the disabled body is the space of punishment and it makes material, architectural spaces punitive.[footnoteref:42] in essence, carcerality is not about what the person designated as disabled does or did – it is what they are (or perceived/labeled as being), which is an idea rooted in eugenic logics. [42: steele, ‘disabling forensic mental health detention’, above n 30.] because of this expansive analysis, steele’s work shifted and expanded my own thinking on abolition of carcerality. although my work discusses these so-called diversion or alternatives to incarceration as carceral ableism and sanism, it did not take into account the ways the punitiveness follows the person and not just increases the scope of incarceration. as she astutely remarks elsewhere, ‘it is not so much that the ‘‘net’’ is enlarged with the advent of new material architectural spaces of control, but rather that disabled bodies make space punitive by stretching the net as they move through space’.[footnoteref:43] [43: ibid, 341.] her analysis shows that we need to conceptualise or underscore abolition more expansively as well. i suggested that dis-epistemology (the idea of letting go of specific knowledges and ways of knowing) is abolitionary. abolition requires a change[footnoteref:44] in thinking, in knowing, in being, one that ‘also acknowledges and challenges the temporal and carnal logics underpinning the carcerality of the disabled body itself’.[footnoteref:45] that is no small feat, but scholarship like steele’s provides us with some tools to begin building and dismantling such systems of power. [44: gilmore wilson, above n 20.] [45: steele, ‘disabling forensic mental health detention’, above n 30, 329.] linda steele on disability, criminal justice and law: reconsidering court diversion court diversion[footnoteref:46] is conventionally considered beneficial because it provides judges with a legal alternative to conviction and sentence in specific relation to disabled people appearing before them on criminal charges. in turn, court diversion can facilitate freedom from prison and also a pathway to accessing disability and mental health services. thus, court diversion is viewed by many scholars, disability advocates and policy-makers as a way in which law (legal doctrine and legal process) and legal actors (lawyers and judges) can play a positive role in addressing overrepresentation of disabled people in the criminal justice system. this is because overrepresentation is typically understood as caused by disabled people not having access to disability and mental health services in the community. this lack of access to services is said to coincide with the failure of governments to ensure appropriate treatment and support in the community in the aftermath of the gradual downsizing and closure of large-scale asylums and disability institutions associated with deinstitutionalisation.[footnoteref:47] [46: i define ‘court diversion’ as ‘a legal process whereby a judge is able to make an order that moves a disabled person appearing before them on criminal charges into treatment and support provided by disability and mental health services, in lieu of a sentence (and sometimes even a conviction)’: steele, above n 31, 2, see further 27-35.] [47: ibid 2-4, 35-38.] my critical concern with this conventional understanding of court diversion emerged from my work as a community lawyer representing people with intellectual disability in new south wales (australia) local court criminal justice matters. applying for court diversion under section 32 of the then mental health (criminal procedure) act 1990 (nsw) was a key part of this role. my concerns were threefold. first, i was concerned that even though court diversion did shift disabled people off the trajectory of trial, conviction and sentenced punishment, it still involved coercive (in the sense of involuntary) intervention in community disability and mental health settings.[footnoteref:48] second, i was concerned that court diversion also provided additional opportunities for perpetration of unlawful violence and legal violence against disabled people through disability and mental health services.[footnoteref:49] my third concern was that court diversion was impacting a particularly marginalised group of people with disability – individuals who had already been subjected to victimisation, settler colonial and state violence, disability service and government irresponsibility, including first nations people and/or people who have been in out of home care or the juvenile justice system – only offering coercive, medicalised responses and not delivering recognition and accountability in relation to their past experiences of harm and injustice.[footnoteref:50] [48: ibid 47-54.] [49: ibid 4-5, 54-57. ] [50: ibid 52-54.] in disability, criminal justice and law i address these concerns through an exploration of court diversion through an analytical framework that draws on tools related to three key concepts: ‘disability’, ‘carcerality’, and ‘legality’.[footnoteref:51] building into the framework tools related to legality was particularly important because existing critical scholarship on disability and criminal justice had largely emerged at the intersections of disability studies and critical criminology and was applied to the operation of the criminal justice system (particularly sites and practices of incarceration), and thus had not considered how law structures, authorises and legitimises carceral control and violence through the criminal justice system. engaging with the intersection of law and violence in the criminal justice context was particularly important for me, given my broader scholarship on ‘disability-specific lawful violence’.[footnoteref:52] i then use this framework to explore a specific case study on court diversion – and one that i was familiar with from my legal practice – diversion in new south wales pursuant to the then named mental health (forensic provisions) act 1990 (nsw). [51: ibid 74-118.] [52: spivakovsky and steele, above n 1; linda steele, ‘disability, abnormality and criminal law: sterilisation as lawful and “good” violence’ (2014) 23(3) griffith law review 467; linda steele, ‘temporality, disability and institutional violence: revisiting in re f’ (2017) 26(3) griffith law review 378.] in disability, criminal justice and law, i argue court diversion debilitates criminalised disabled people (a term i use deliberately to highlight how disabled people are both targeted and subjectified through criminal justice and criminal legal systems). this concept of debility (which ben-moshe also engages with in her book[footnoteref:53]) – was developed by jasbir puar[footnoteref:54] and draws on earlier work by lauren berlant on slow death[footnoteref:55] and foucault on scientific racism[footnoteref:56] among others. debility refers to the slow wearing down and depletion of entire populations deemed surplus to society – not spectacular one-off acts of violence but the way society and legal systems are structured to limit possibilities for flourishing across one’s life and across the community.[footnoteref:57] noting my specific interest in law and legality, i argue that law has a key role in debilitation of criminalised disabled people. court diversion enables carceral control through disability and mental health services of individuals who are otherwise beyond criminal law (in the sense they have not or cannot be convicted and sentenced). court diversion provides legal pathways between otherwise disparate legal domains, spaces and modes of control that are not used in criminal law (such as guardianship law, civil mental health law, case management, restrictive practices in group homes) and in doing so both sustains and serves to legitimise lifelong violence and precarity experienced by disabled people in the criminal justice system. [53: liat ben-moshe, decarcerating disability: deinstitutionalization and prison abolition (university of minnesota press, 2020).] [54: jasbir puar, right to maim: debility, capacity, disability (duke university press, 2017).] [55: see, e.g., lauren berlant, ‘slow death (sovereignty, obesity, lateral agency)’ (2007) 33(4) critical inquiry 754.] [56: see, e.g., michel foucault, ‘lecture 17 march 1976’, in mauro bertani and alessandro fontana (eds), society must be defended (d macey, trans) (penguin books, 1997) 239; michel foucault, ‘lecture 8 january 1975’, in valerio marchetti and antonella salomoni (eds), abnormal: lectures at the collège de france, 1974–1975 (g burchell, trans) (picador, 2003) 291.] [57: puar, above n 52.] through disability, criminal justice and law i aim to make three contributions to socio-legal scholarship. one contribution is to invite greater scholarly attention to the legal dynamics and nuances of disability segregation, incarceration and violence – how legal process, jurisdiction, legal doctrine and legal actors structure, enable and legitimate oppression, and in ways that are assumed to be law operating in a humane and empowering register. in particular, the book shows the importance of such attention both for scholars who research and advocate with and for criminalised disabled people, and for scholars who research and advocate with and for other marginalised populations who might be identified as benefitting from ‘therapeutic’ alternatives to prison (e.g., women, first nations people and people who use drugs) in a context that is more removed from the critical disability scholarship and disability justice activism. a second contribution is to encourage more scholarly analysis of the ways that law authorises violence through mental health and disability services in the ‘deinstitutionalised’ community, and to critique the role of the ‘dark past’ of institutions[footnoteref:58] in the interventions that occur through mental health and disability service provision and the construction of laws authorising these interventions as benevolent and even empowering. relatedly, i hope to inspire more critical attention to the intersection of criminal law on the one hand and guardianship and mental health laws on the other. my analysis of court diversion demonstrates a curious circularity at play in diversion, whereby mental health and disability services are the protective, safe and therapeutic alternative to the harmfulness of criminal justice systems and prisons, where these services are perpetrating violence in a more concentrated manner specifically in relation to disabled people – but their violence is erased in this circularity by reason of their ‘rescuing’ role vis-à-vis the prison. [58: niklas altermark, citizenship, inclusion and intellectual disability (routledge, 2018) 2.] the third contribution i aim to make through disability, criminal justice and law is to begin a conversation in socio-legal scholarship on how we remedy and redress (in an individual legal sense) or repair (in a broader social and collective sense) the injustices to criminalised disabled people, both those done through court diversion and mental health and disability services and those that criminalised disabled people have experienced across their lives (particularly those in which the state and mental health and disability services are complicit). transformative justice and disability justice movements, as well as self-advocacy, disability rights and survivor/peer/consumer movements, have for decades variously been advocating for greater legal and political equality and improved access to resources, as well as recognition of and accountability for past harms. in the final chapter of my book, i draw on threads from these movements to suggest how legal doctrine and legal process and lawyers, law teachers and law students can contribute to social justice for criminalised disabled people. since writing disability, criminal justice and law, i have shifted from focusing in my research on the role of law in enabling and legitimating violence, to the possibilities and limits of law in reckoning with and repairing violence.[footnoteref:59] this work is a necessary continuation of where i left off in my book, and continues my grappling with how we as socio-legal scholars and lawyers use the tools available to us through law, while also looking inwards at our own complicity in and accountability for the harms we are seeking to redress. [59: linda steele, ‘sites of conscience: redressing disability institutional violence’ (2022) 3(2) incarceration: an international journal of imprisonment, detention and coercive confinement; linda steele and kate swaffer, ‘reparations for harms experienced in residential aged care’ (2022) 24(2) health and human rights 71.] connections to ben-moshe’s work i preface my discussion of the intersections between disability, criminal justice and law and decarcerating disability by noting the profound impact of ben-moshe’s earlier work on disability, criminal justice and law. our two books were published in the same year and thus were developed separately. however, ben-moshe’s 2017 article critiquing the call for a return to the ‘asylum’ (or coercive, in-patient mental health treatment) as the logical response to the perceived failure of deinstitutionalisation[footnoteref:60] was central to my thinking through the ways in which court diversion laws are perceived as necessary and benevolent through the trope of the failure of deinstitutionalisation. ben-moshe’s 2014 collection disability incarcerated, co-edited with chris chapman and allison carey,[footnoteref:61] introduced to me the ‘institutional archipelago’ as a way to think about the connections between disparate sites and systems through which criminalised disabled people circulate. in turn, i hope my scholarship has done justice to ben-moshe’s important work by utilising her scholarship in a socio-legal context to explore the legal dynamics of disability carceral control. [60: liat ben-moshe, ‘why prisons are not “the new asylums”’ (2017) 19(3) punishment & society 272.] [61: ben-moshe et al. (eds), above n 21.] turning specifically to decarcerating disability, i would like to focus on four critical threads in ben-moshe’s book: ‘carceral ableism’, ‘abolition’, geographies of deinstitutionalised communities (e.g., nimbyism), and disability inc. i will show how these four critical threads particularly resonate with two trajectories in my recent scholarship since i completed disability, criminal justice and law. in doing so, i hope to demonstrate the broader significance and relevance of decarcerating disability beyond the criminal justice-institutionalisation nexus and to a diverse range of carceral contexts and critical and theoretical concerns in disability socio-legal scholarship. the first trajectory is the shift in my research from the criminal justice context to other disability carceral spaces and techniques: residential aged care facilities[footnoteref:62] (also referred to as nursing homes (usa) and care homes (uk)), use of restrictive practices in community residential settings,[footnoteref:63] and sheltered workshops[footnoteref:64] (also referred to as ‘supported employment’ (usa), ‘social enterprises’ (uk) and ‘supported employment’ (australia)). two concepts developed in ben-moshe’s book are particularly useful for analysing the interlocking dynamics of inclusion and violence in these other settings. one concept is ‘carceral ableism’. ben-moshe defines ‘carceral ableism’ as the assumption that disabled people are inherently in need of control and protection: ‘the praxis and belief that people with disabilities need special or extra protections, in ways that often expand and legitimate their further marginalisation and incarceration’.[footnoteref:65] [62: dehm et al., above n 38; steele et al., ‘ending confinement and segregation’, above n 38; steele et al., ‘human rights and confinement of people living with dementia in care homes’, above n 38; steele et al., ‘questioning segregation of people living with dementia in australia’, above n 38.] [63: spivakovsky and steele, above n 1.] [64: linda steele, ‘law and disability ‘supported’ employment in australia: the case for ending segregation, discrimination, exploitation and violence of people with disability at work’ (2023, forthcoming) 49(1) monash university law review.] [65: ben-moshe, above n 51, 17.] the concept of ‘carceral ableism’ is significant because it captures the inherent ‘carcerality of the disabled body’ which is associated with medical and legal epistemologies and ontologies of disability rather than with how disabled people are treated in specific systems or sites.[footnoteref:66] as such, the concept signals the centrality to abolition of carceral control across diverse sites and practices, and the importance of surfacing and dismantling the cultural and medical (and indeed also legal) constructions of disability as grounded in protection and control, rather than focusing only on freeing disabled people from specific conditions of incarceration and control. indeed, ben-moshe shows that carceral ableism has in part facilitated the incarceration of disabled people through other sites (group homes, nursing homes and prisons) in the aftermath of deinstitutionalisation. applying the concept of ‘carceral ableism’ to my research on residential aged care facilities – and specifically to secure dementia care units within these facilities – and the use of restrictive practices in community residential settings, illuminates both how these non-criminal settings can be understood as punitive and violent, and the importance of interrogating how carceral ableism makes the existence of and harmful conditions within these segregating and coercive contexts seem necessary and benevolent, including at the level of specific legal technologies through which carceral ableism circulates in law, including legal subjectivity, the exercise of judicial discretion, and jurisdictional questions. [66: linda steele, ‘disabling forensic mental health detention’, above n 30.] ‘abolition’ is another concept from ben-moshe’s book that is significant to my exploration of a wider range of disability carceral spaces and techniques, by illuminating the importance of attending to epistemologies of disability. in decarcerating disability ben-moshe takes the term ‘abolition’ with a long and wide usage[footnoteref:67] and carefully draws out three interconnected dimensions – the physical closure of settings and movement of people out of those settings, the transformation of society to provide the resources and supports to people outside of those settings, and transformation of the epistemologies that make institutionalisation of disabled people necessary and natural.[footnoteref:68] ben-moshe’s conceptual articulation of ‘abolition’ provides an invaluable response to counter the arguments by opponents of abolition (including legal scholars) who reduce deinstitutionalisation to the caricatured singular act of moving people out of institutional buildings and leaving them for dead on the streets. in particular, her approach emphasises the importance of transformation of the practices, resources and knowledges that shape the communities disabled people come to live in after deinstitutionalisation. applying ben-moshe’s approach to abolition to residential aged care (as i have done[footnoteref:69]) highlights the necessity to build communities and provide resources for disabled people (including people living with dementia) and also demands a fundamental rethink of the cultural (and i would say legal) epistemologies that make institutionalisation and segregation in residential aged care seem natural and necessary. moreover, applying ben-moshe’s approach to ‘abolition’ to sheltered workshops highlights the obligation on the state and private industry to make open workplaces accessible to disabled people. this is particularly important given that calls for transition away from sheltered workshops are usually opposed on the basis such a move will undermine the entire financial sustainability of the organisations operating sheltered workshops and also place significant stress on families, thus not merely blaming abolition for harm to disabled people but actually blaming abolition for harm to the entire service sector and families that are said to rely on them. [67: ben-moshe, above n 51, 17-21.] [68: ibid 111-133, 280-283.] [69: dehm et al., above n 38.] the second trajectory in my research is how we use law to respond to – to reckon with, redress and repair – the injustices against disabled people, including specifically injustices associated with institutionalisation. in this research, i have focused on two sets of practices: reparations[footnoteref:70] and sites of conscience[footnoteref:71] (place-based memory practices). the most obvious point of relevance of decarcerating disability to this trajectory is ben-moshe’s nuanced analysis of decarceration litigation.[footnoteref:72] contributing to the long tradition of socio-legal critiques of the possibilities and limits of judicial processes and remedies in recognising and repairing structural injustice, ben-moshe draws on the political and lived aftermaths of court decisions to question how litigation can be evaluated as ‘successful’ and signals the need to be attentive to how ableism circulates in the framing and outcomes of the litigation. ben-moshe’s analysis serves as an important reminder to me and other socio-legal scholars to take a careful and critical approach to assessing the value of law as a tool of social justice, and to be mindful of the legal and cultural and material outcomes of litigation (noting that sometimes these can run at cross purposes). [70: steele and swaffer, above n 57.] [71: steele, ‘sites of conscience’, above n 57. ] [72: ben-moshe, above n 51, 229-268.] decarcerating disability is also a vital text in advancing work on how we use law to respond to – to reckon with, redress and repair – the injustices against disabled people in two further respects. ben-moshe’s detailed critique of how ‘nimby’ activism shaped experiences and geographies of community in the aftermath of deinstitutionalisation[footnoteref:73] indicates the need for a broader temporal frame to collective reparations. specifically, her work highlights the importance of going beyond a singular focus on reckoning with, redressing and repairing past harms in institutions, to additionally engage collective reparative practices to redress and repair the harms of exclusion and segregation in the communities in which disabled people live in the aftermath of deinstitutionalisation. to this end, we might draw on reparative curatorial and memorial practices utilised in the context of reparations for racial segregation. for example, the district six museum in south africa[footnoteref:74] – which contains exhibitions engaging with the memories and heritage of district six, and connects these to contemporary questions around community and identity[footnoteref:75] – ‘is actively engaged in the undoing of conceptions of community’ through ‘simultaneously launch[ing] programs that interrogate notions of community, home, and race, while also attempting to build an anti-apartheid city’.[footnoteref:76] indeed, the necessity for such a reparative approach in the context of disability institutionalisation is implicit in ben-moshe’s analysis of the evolution of decarceration litigation from a focus on harmful conditions within institutions through to a focus on the discrimination inherent to institutionalisation and the demand to make more equal and just futures beyond the institution: ‘the fight is not so much about the institution and its conditions as about what comes after or even instead of the institution’.[footnoteref:77] [73: ibid 161-187.] [74: during apartheid black south africans and other racialised groups were forcibly removed from their homes and land in district six in south africa and moved to substandard housing.] [75: stacy douglas, curating community: museums, constitutionalism, and the taming of the political (university of michigan press, 2017); karen e till, ‘resilient politics and a place-based ethics of care: rethinking the city through the district six museum in cape town, south africa’ in bruce evan goldstein (ed), collaborative resilience, moving through crisis to opportunity (mit press, 2012) 283. ] [76: douglas, above n 73.] [77: ben-moshe, above n 51, 254.] the threading through decarcerating disability of an analysis of the political economy of institutionalisation and incarceration offers significant insights to broaden approaches to individual reparations. drawing on earlier work by marta russell on warehousing, ben-moshe offers the concept of ‘disability inc’ in which ‘incorporated’ has the double meaning of the conditional ‘inclusion’ of disabled people into the fold of community and citizenship when they meet certain standards of white, heteronormative respectability, and corporate profit from the extraction of disabled people’s labour or disability through their ‘incarceration’.[footnoteref:78] this concept is particularly useful to a broadening of how we frame reparations. as i have argued elsewhere, too often scholarly and policy analysis of segregation of and violence against disabled people is framed in terms of disadvantage and harm to disabled individuals and reparations in the form of compensation or recognition payments.[footnoteref:79] yet, ben-moshe’s work highlights the importance of broadening our view to additionally recognise the advantage and benefit to perpetrators of segregation and violence, notably financial gain.[footnoteref:80] as such the concept of ‘disability inc’ provides a prism through which to explore restitution as a form of reparations. considering how reparations can compel perpetrators to forego the financial and other benefits of harm to disabled people, can provide novel starting points for re-making communities and supports in ways that do not position disabled people as a source of profit. this is particularly important given many operators of institutions (including governments and charitable organisations) continue to deliver services (albeit rebranded as inclusive and empowering) and to hold considerable assets and wealth (including through the redevelopment or sale of sites of former institutions). [78: ibid 246, see also 11-15.] [79: steele, above n 62.] [80: ibid.] ultimately, decarcerating disability and ben-moshe’s larger body of work provides provocative and novel approaches to the relationship between disability, violence and inclusion that challenge socio-legal scholars to pay closer attention to the lived, material, cultural and epistemological dynamics of how carceral control of disabled people is enabled and responded to through and beyond law. symposium contributors we invited a group of scholars who are colleagues, collaborators and interlocutors and whose work we greatly admire and have ourselves engaged with, to critically reflect on our books. in particular, we asked them to consider how our books intersect with their work and with recent events and political shifts, and what questions they might have for us in further advancing our work. by way of brief introduction to their scholarship: chris chapman’s work investigates the relationship between disability and violence, and how benevolence in professional ethics and practice can justify violence.[footnoteref:81] sarah lamble’s work highlights transformative justice as providing alterative frameworks of accountability, and critiques alternatives to prison for trans people and lgbtq hate crime legislation as extending carceral control.[footnoteref:82] jamelia morgan researches the relationships between disability, law and criminal justice, and advances discrit (disability studies and critical race theory, mostly in education) and critical disability studies analysis of criminal law and procedure.[footnoteref:83] deb parkes’s writing and practice focusses on anti-carceral remedies, and how we engage with law to deliver accountability for state violence and advance prison abolition.[footnoteref:84] dinesh wadiwel researches the relationship between disability, race and violence, and explores the legal authorisation and epistemic normalisation of torture of disabled people.[footnoteref:85] sheila wildeman focuses on solitary confinement and anti-carceral remedies, and explores the possibilities and limitations of engaging litigation (notably the writ of habeas corpus) to resist incarceration of disabled people.[footnoteref:86] all of these exemplary contributors (and hopefully we too) embody a spirit of scholar/activism, or praxis, that connects critiques of incarceration and the law with critical disability analysis, and does so from the position of critiquing normalisation and advancing the liberation of disabled/mad people. [81: chris chapman, ‘becoming perpetrator: how i came to accept restraining and confining disabled aboriginal children’ in bonnie burstow, brenda a lefrancois an shaindl diamond (eds), psychiatry disrupted: theorizing resistance and crafting the (r)evolution (mcgill-queen’s university press, 2014) 16; chris chapman, ‘five centuries’ material reforms and ethical reformulations of social elimination’ in liat ben-moshe, chris chapman and allison c carey (eds), disability incarcerated: imprisonment and disability in the united states and canada (palgrave macmillan, 2014) 25; chris chapman, allison c carey and liat ben-moshe, ‘reconsidering confinement: interlocking locations and logics of incarceration’ in liat ben-moshe, chris chapman and allison c carey (eds), disability incarcerated: imprisonment and disability in the united states and canada (palgrave macmillan, 2014) 3; chris chapman and aj withers, a violent history of benevolence: interlocking oppression in the moral economies of social working (university of toronto press, 2014).] [82: sarah lamble, ‘queer investments in punishment: sexual citizenship, social movements and the expanding carceral state’ in jinthana haritaworn, adi kuntsman and sylvia posocco (eds), queer necropolitics (routledge, 2015) 151; sarah lamble, ‘queer necropolitics and the expanding carceral state: interrogating sexual investments in punishment’ (2013) 24(3) law and critique 229; sarah lamble, ‘the marketisation of prison alternatives’ (2014) 97(1) criminal justice matters 14; sarah lamble, ‘transforming carceral logics: 10 reasons to dismantle the prison industrial complex using a queer/trans analysis’, in eric a stanley and nat smith (eds), captive genders: trans embodiment and the prison industrial complex (ak press, 2011) 235.] [83: jamelia n morgan, ‘caged in: the devastating harms of solitary confinement on prisoners with physical disabilities’ (2017-2018) 24 buffalo human rights law review 81; jamelia n morgan, ‘policing under disability law’ (2021) 73 stanford law review 1401; jamelia n morgan, ‘reflections on representing incarcerated people with disabilities: ableism in prison reform litigation’ (2019) 96(4) denver law review 973; jamelia n morgan, ‘the paradox of inclusion: applying olmstead’s integration mandate in prisons’ (2020) xxvii(2) georgetown journal on poverty law and policy 205; jamelia n morgan, ‘why disability studies in criminal law and procedure?’, uc irvine school of law research paper no 2021-39, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3887139.] [84: debra parkes, ‘starting with life: murder sentencing and feminist abolitionist praxis’ in kelly struthers montford and chloë taylor (eds), building abolition: decarceration and social justice (routledge, 2021) 151; debra parkes, ‘solitary confinement, prisoner litigation, and the possibility of a prison abolitionist lawyering ethic’ (2017) 32(2) canadian journal of law & society 165; debra parkes, ‘women in prison: liberty, equality, and thinking outside the bars’ (2016) 12 journal of law & equality 127.] [85: dinesh wadiwel, ‘disability and torture: exception, epistemology and “black sites”’ (2017) 31(3) continuum 388; dinesh wadiwel, ‘restriction, norm, “umwelt”: a response’ (2020) 51(4) new literary history: a journal of theory and interpretation 751.] [86: rusi stanev and sheila wildeman, ‘freedom: a work in progress’ in eilionoir flynn, anna arstein-kerslake, clíona de bhailís and maria laura serra (eds), global perspectives on legal capacity reform (routledge, 2019); sheila wildeman, ‘agonizing identity in mental health law and policy (part ii): a political taxonomy of psychiatric subjectification’ (2016) 39(1) dalhousie law journal 147; sheila wildeman, ‘disabling solitary: an anti-carceral critique of canada’s solitary confinement litigation’ in claire spivakovsky, linda steele and penelope weller (eds), the legacies of institutionalisation: disability, law and policy in the 'deinstitutionalised' community (hart publishing, 2020) 87; sheila wildeman, “habeas corpus unbound” in colleen m flood and paul daly (eds), administrative law in context, 4th ed (emond publishing, 2021).] __________________________________________________________________________________ 4 __________________________________________________________________________________ 3 fudge and grabham introduction: gendering labour law _________________________________________________________________________________________________________ feminists@law vol 4, no 1 (2014) _________________________________________________________________________________________________________ introduction: gendering labour law judy fudge[footnoteref:1]* and emily grabham[footnoteref:2]** [1: * professor of law, kent law school, university of kent, uk, email j.a.fudge@kent.ac.uk.] [2: ** senior lecturer in law, kent law school, university of kent, uk, email e.grabham@kent.ac.uk. ] this special section of feminists@law is the outcome of a workshop, called ‘gendering labour law’, held at kent law school on june 20 and 21, 2013. the workshop marked the first collaborative effort of participants in the nascent gender labour law research network (gllrn), which is being launched simultaneously with the publication of this collection. the gllrn, the workshop and this special section emerge from a collaboration between emily grabham and judy fudge, supported by the leverhulme trust and kent law school, which is designed to cultivate feminist and critical labour law scholarship and research. the aspiration behind the special section and the gllrn is to help to revitalize scholarship in labour law by infusing it with a robust feminist engagement with core concepts such as work, care, gender and social reproduction.[footnoteref:3] although the focus is on what feminist theorizing, methodologies and concerns can bring to understanding the role of law in how work is organized and valued, the intellectual and political concerns of the participants of the workshop and of the research network are broader. what unites the participants of the workshop, contributors to this special section and, we hope, the expanding circle of researchers affiliated with the gllrn, is a commitment to examining the relationship between legal artefacts, norms, forms, discourses, actors and institutions and the organization and valuation of work. we appreciate that gender can only be understood in relation to, and in combination with, other axes of subordination such as class, race, religion, ethnicity and migrant status.[footnoteref:4] by using the term ‘gendering’ we have tried to emphasize the constructed and interconnected nature of social categories and social relations, and our interest is in exploring how subordination is constructed, cultivated, resisted, challenged and transformed in work relations. [3: a crucial early contribution to this endeavour was the important collection edited by anne morris and therese o’donnell, feminist perspectives on employment law (london: cavendish, 1999). see also sandra fredman, women and the law (oxford: oup, 1998) and judy fudge, ‘from women and labour law to putting gender and law to work’ in margaret davies and vanessa munro, eds, a research companion to feminist legal theory (farrnham: ashgate, 2013) 321-340.] [4: at the workshop diamond ashiagbor discussed her project ‘race and gender in eu labour markets – intersectional discrimination and organisational change’. ashiagbor made an important, early contribution to developing an ‘intersectional’ analysis of work in ‘the intersection between gender and ‘race’ in the labour market: lessons for anti-discrimination law’ in anne morris and therese o’donnell, eds, feminist perspectives on employment law, ibid. in her presentation at the workshop, anastasia tataryn focused on migrant workers to argue for a fundamental overhaul of labour law in order to address precarious work.] we invited a group of feminist-minded researchers interested in labour and labour law to a workshop to discuss their research. we hoped that the participants would challenge prevailing conceptions of labour law that pushed women’s work to the margins, and we are happy to share some of the participants’ contributions in the workshop in this special section of feminists@law. four of the participants provided research notes, another gave us permission to republish a recent chapter in an edited collection, one gave us a version of a forthcoming journal article, and one provided her assessment, as a long-time feminist labour law interlocutor, of a collection of recent musings on the idea of labour law. by focusing on gender as a crucial feature in the organization and valuation of work, the workshop and the contributions to this special section stretched the contemporary conversation about labour law in three directions. the first is scope, which still remains quite firmly tethered to the contract of employment, despite recent attempts to extend it to a broad range of personal work relations.[footnoteref:5] feminist approaches to the scope of labour law go beyond a demarcation dispute about the boundaries of labour law to question the very act of delineating different legal jurisdictions, such as family or criminal law, for example, to govern different types of work, such as unpaid domestic labour or paid sex work. in her reprinted chapter, ann stewart uses the concept ‘body work’ to expose the conceptual limitation of labour law in a consumer-based market economy.[footnoteref:6] she explores how two examples of body work – the labour involved in caring for the vulnerable elderly and in providing commercial sex – are regulated, and she concludes that labour law as presently constituted cannot tackle relationships constituted on the borders of production and social reproduction, and also struggles to recognize the influence of consumer/clients on work relationships.[footnoteref:7] in a similar vein, prabha kotiswaran in her article focuses on three forms of abject labour in india – sex work, exotic dancing, and commercial surrogacy – both to stretch feminists’ conception of social reproduction beyond care and to question the efficacy of traditional models of labour law to meet the needs of these workers. through an examination of three generations of labour law, kotiswaran suggests that labour regulation geared towards the informal economy best addresses the demands made by women reproductive workers for recognition and redistribution. she concludes by suggesting that the traditional model of labour law designed for the formal industrial sector needs to be reconceptualized, especially as the postcolonial indian state re-engineers labour laws to make regulation more ‘flexible.’ the scope of labour is further challenged by kate bedford who, in her research note, explains how volunteer labour figures prominently in certain kinds of ‘mundane’ charitable activity, such as bingo halls, which tend to be highly gendered. she focuses on how charities and government officials try to manage the tension between regulating and incentivizing the unpaid workers whose labour sustains the charitable bingo hall. [5: see mark freedland and nicola kountouris, the legal construction of personal work relations (oxford: oup, 2011) and for a feminist reading of this approach see sandra fredman and judy fudge, ‘the legal construction of personal work relations and gender’ (2013) 7 jerusalem review of legal studies 112.] [6: similarly, at the workshop, prahba kotiswaran used the legal regulation of sex work, exotic dance and commercial surrogacy in india to reveal how social relations influence the value and organization of reproductive labour. see her book dangerous sex, invisible labor: sex work and the law in india (princeton: princeton up, 2011).] [7: ann stewart, ‘the socio-economic and legal context of body/care work’ in carol wolkowitz, rachel lara cohen, teela sanders and kate hardy, eds, body/sex/work: intimate, embodied and sexualized labour (basingstoke: palgrave, macmillan, 2013) 61-76, 74. ] the second way in which the workshop and gllrn stretches labour law is across disciplinary boundaries. a socio-legal approach is a strong current within feminism, which tends towards multiand inter-disciplinarity. in her contribution to this issue, donatella alessandrini contrasts the feminist autonomists’ critique of the wage society, their refusal to place reformist demands on the state, and their emphasis on the collectivization of social reproduction with post-keynesian policies aimed at the socialization of investment, in particular the proposal for the government to act at once as the employer of last resort (elr) and a social provider. she offers a feminist political economy approach to social provision and the wage.[footnoteref:8] moving from theory to politics, nicole busby’s research note explores how the uk’s coalition government has used the ‘need’ for austerity to justify labour market deregulation alongside reductions in welfare and cuts to public services. she shows how ‘such reforms have resulted in reduced protection for those (women) engaged in low paid, precarious work and the loss of public sector jobs and also run the risk of upsetting the finely-tuned arrangements on which those who provide unpaid care alongside paid work depend’.[footnoteref:9] [8: bedford also adopts a political economy approach in her examination of bingo as an instance of gambling.] [9: busby, this issue. ] a feminist approach to labour law also stretches the range of theoretical frames and methods used to study the relationship between law and work, as feminists tend to embrace a catholic approach to methodology and theory. emily grabham’s research note introduces us to her project on law and time, which studies the time-related concepts and assumptions that structure some of the key initiatives in the area of equalities regulation in the uk over the past two decades. drawing on the work of bruno latour and michel serres, she goes beyond ‘merely tracing how legal concepts and communities symbolize time, or how they use temporal concepts in their world-making features’, to explore ‘the materialization of time and interconnections between time, matter, form and objects in the making of law’ pertaining to ‘work-life balance’.[footnoteref:10]  other participants in the workshop discussed their research, which engages in empirical methods to understand the complex interactions of labour law and the ‘resolution’ of conflicts at work.[footnoteref:11] [10: grabham, this issue. ] [11: for example, lizzie barmes’ research on the law regulating individual employment disputes and grace james’ study of the impact of ideologies of motherhood, fatherhood and the ‘unencumbered worker’ in workplace conflicts involving pregnancy, parenting and caregiving are concerned with seeing how employment rights and legal institutions actually influence working life. for examples of their work see lizzie barmes, ‘learning from case law: the accounts of marginalised working’ in judy fudge, shae mccrystal and kamala sankaran, eds, challenging the legal boundaries of work regulation (oxford: hart publishing, 2012) and grace james, the legal regulation of pregnancy and parenting in the labour market (london: routledge-cavendish, 2008). ] in the final contribution to the special section, joanne conaghan uses a recent collection of essays entitled the idea of labour law[footnoteref:12] to reflect upon the extent to which labour law has taken up the feminist challenge to ‘confront the implications for labour regulation of acknowledging the interdependence of work and family life and the constituting significance of gender in relation to the social (and legal) organization of work’.[footnoteref:13] [12: edited by guy davidov and brian langille (oxford: oup, 2011).] [13: conaghan, this issue. ] we hope that this special section both inspires and provokes research that uses a feminist lens to examine labour law and we encourage researchers to join the gllrn list-serve: https://www.jiscmail.ac.uk/cgi-bin/webadmin?subed1=gendering-labour-law&a=1. the gllrn email list-serve is hosted by the uk's academic it system, jisc. we intend it to be a means of communicating about scholarship on gender, labour law and labour regulation that challenges received wisdom about the discipline's assumptions, norms and practices in a range of social, historical and spatial contexts. we are interested in promoting and showcasing scholarship that explores the boundaries between legal jurisdictions that have been seen as separate (migration/labour, welfare/labour, commercial/labour, human rights/labour, trafficking/labour, family/labour) and that considers how labour law constructs, reinforces, or challenges social relations of subordination: gender, race, and class, for example. we are keen to foster interdisciplinary approaches to labour law and we are interested in labour law at a range of different scales.  we would appreciate it if you could publicize the new list with your colleagues across disciplines. the email list is one facet of what we hope will be a new scholarly network, fostering intellectual exchange on topics relating, for example, to gender, race, migration, and labour law, sharing ideas for collaboration, and (hopefully) organizing workshops and streams at relevant conferences. please do use this list to share new research, developments in your area, and other relevant news. _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ /docprops/thumbnail.wmf feminists@law vol 4, no 1 (2014) _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ 1 introduction : gendering labour law judy fudge * and emily grabham ** this special section of feminist s @law is the outcome of a workshop, called ‘gendering labour law’ , held at kent law school on june 20 and 21, 2013 . the workshop marked the first collaborative effort of participants in the nascent gender labour law research network (gllrn) , which is being launched simultaneously with the publication of this collection . the gll rn, the wo rkshop and this special section emerge from a collabo ration between emily gra b h am and judy fudge , supported by the leverhulme t r u s t and kent law school, which is designed to cultivate feminist and critical labour law scholarship and research. the a s piration behind the special section and the gllrn is to help to revitaliz e scholarship in labour law by infusing it with a robust feminist engagement with core concepts such as work , care, gender and social reproduct i on . 1 although the f ocus is on what feminist theoriz ing, methodologies and concerns can br ing to understanding the role of law in how work is organiz e d and value d , the intellectual and political concerns of the participants of the workshop and of the research network are broader. what unites the participants of the workshop, contributors to thi s special section and, we hope, the expanding circle of researchers affiliated with the gllrn, is a commitment to examining the relationship between lega l artefacts , norms, forms, discour ses, actors and institutions and the organiz ation and valuation of wo rk. w e appreciate that gender can only be understood in relation to , and in combination with , other axes of subord i nation such as class, race, religion, ethnicity and migrant status . 2 by using the term ‘gendering’ we have tried to emphasiz e the constructed and interconnected nature of social categories and social relations , and our interest is in explor ing how subordination is constructed , cultivated, resisted, challenged and transformed in work relations . w e invited a group of feminist minded researchers interested in labour and labour law to a workshop to discuss their research. we hoped that the parti c i pants would challenge prevailing conceptions of labour law that pushed women’s work to the margins , and we are happ y to share s ome of the participant s ’ contributions in the workshop in th is special * professor of law, kent law school, university of kent, uk, email j.a.fudge@kent.ac.uk . ** senior lecture in law, kent law school, university of kent, uk, email e.grabham@kent.ac.uk . 1 a crucial early contribution to this endeavour was the important collection edited by anne morris and therese o’donnell, feminist perspectives on employment law (london: cavendish, 1999). see also sandra fredman, women and the law (oxford: oup, 1998) and judy fudge, ‘from women and labour law to putting gender and law to work’ in margaret davies and vanessa munro, eds , a research companion to feminist legal theory (farrnham: ashgate, 2013) 321 340. 2 at the workshop diamond ashiagbor discussed her project ‘race and gender in eu labour markets – intersectional discrimination and organisational change’. ashiagbor made an important, early contribution to developing an ‘intersectional’ analysis of work in ‘the intersection between gender and ‘race’ in the labour market: lessons for anti discrimination law’ in anne morris and therese o’donnell, eds, feminist perspectives on employment law , ibid. in her presentation at the workshop, anastasia tataryn focused on migrant workers to argue for a fundamental overhaul of labour law in order to address precarious work. gozdecka the polish catholic church and the regulation of ivf in poland __________________________________________________________________________________ feminists@law vol 2, no 1 (2012) __________________________________________________________________________________ the polish catholic church and the regulation of ivf in poland: polarised political discourses and the battle over ‘proper’ reproduction dorota a. gozdecka[footnoteref:1]* [1: * university of helsinki, centre of excellence in foundations of european law and polity research and australian national university, centre for european studies. dorota.gozdecka@helsinki.fi ] i. introduction on 4 october 2010 the nobel prize in medicine was awarded to professor robert g. edwards for the development of in vitro fertilisation. at nearly the same time, on 22 october 2010, the polish parliament held a heated debate on a proposed legislative ban on the ivf procedure and the question of its morality and compatibility with ‘natural law’. the procedure, which is currently available albeit not specifically regulated under polish law, is opposed by the catholic church which does not recognise artificial methods of procreation. due to this moral objection the polish church in its multiple statements and attempts to influence polish mps entered a political battle aimed at the introduction of an absolute ban on access to ivf regardless of a person’s religious convictions. religious and philosophical beliefs strongly influence approaches to women’s reproductive rights around the globe. where liberal approaches see women’s rights, religions often see the domain of their traditional control. and without a doubt many if not the majority of people will give the religious aspect an important role in their reproductive choices. the difficult question is, though, to what extent religions should influence the legislator in making moral choices possible or impossible for everyone. achievement of the objectives specified in the beijing platform for action advocating for ‘the explicit recognition and reaffirmation of the right of all women to control all aspects of their health, in particular their own fertility’[footnoteref:2] encounters multiple problems in particular as far as abortion, assisted reproduction and in some cases even contraception[footnoteref:3] are concerned. religious opposition to the idea of reproductive rights has prevented any decisive development in that area in many regions of the world. in particular the catholic church, who as the holy see has the status of a permanent observer in the united nations and was present during the cairo and beijing conferences, has remained in firm opposition to full recognition of women’s reproductive rights in particular such as access to legal abortion.[footnoteref:4] the catholic understanding of natural law also condemns methods of assisted procreation, in which embryos are created outside the body. according to documents issued by the vatican, such as for instance the encyclical evangelium vitae[footnoteref:5] or instruction donum vitae,[footnoteref:6] it should be natural to oppose procedures producing a number of human embryos that will not be used and will be eventually experimented on or destroyed. justifying its position by what it understands as universally binding ‘natural law’, the church attempts to continue being a key player in the regulation of biomedical and reproductive issues not only in international law, but also in those countries where the catholic population is dominant. [2: united nations, a/conf.177/20, 1995.] [3: dorota a. gozdecka, ‘catholic family values instead of equality polish politics between 2005-2007: envisioning the role of women’ in: i. sulkunen, s.-l. nevala-nurmi, p. markkola, suffrage, gender and citizenship international perspectives on parliamentary reforms (cambridge: cambridge scholars press, 2009).] [4: rishona fleishman, ‘the battle against reproductive rights: the impact of the catholic church on abortion law in both international and domestic arenas’, 14 emory international law review: 1 (2000).] [5: john paul ii, encyclical letter evangelium vitae, no. 1995.03.25, 1995.] [6: congregation for the doctrine of the faith, donum vitae, instruction on respect for human life in its origin, 1987.] this article analyses the position of the church and its influence on the draft proposals attempting to regulate issues concerning assisted reproduction in poland. it focuses on the notion of ‘politicised religion’ in order to understand the position of the church in poland as a semi-political organisation and its impact on processes of democratic deliberation. the objectives of the article are not to criticise the church’s stance on the matter of ivf or to argue in favour of ivf as a form of advancing female liberty. the intention is rather to bring to light the unfortunate results of the intransigent opposition of the church to any proposals aimed at achieving legislation best reflecting social consensus on the matter. these include not only exclusion of any other conception of femininity than that advocated for by the catholic church in poland, but also a lack of protection of catholics not willing to be involved in the procedure due to the current lack of any regulation on this specific matter. grounding its approach in deliberative democratic theory the article critically approaches the attempts to ban the procedure and the methods used. it examines the effort of politicised dominant religion to minimise the relevance of democratic deliberation through the polarisation of political debate, diminishing the importance of religious pluralism and social diversity and relying solely on a natural law interpretation of human rights. its objective is also to emphasise the impact of these political processes on the perception of women’s bodies and women’s reproductive autonomy. this will be done in the following steps: firstly the article addresses the problem of the ‘politicisation’ of religion and its impact on the control of women’s bodies. secondly it focuses on the legal proposals and debate concerning the regulation of ivf that took place in poland during the previous term of the parliament (the sejm). furthermore it engages in critique of the multiple discursive strategies employed by religiously motivated politicians in their struggle for ‘proper reproduction’, and lastly it emphasises the potential for otherising infertile women and couples as those whose bodies and desires to have children need to give way to a uniform rather than pluralistic conception of religion and nation. ii. the political role of religions in discourses on reproduction scholars investigating problems of the legal regulation of sexuality, female reproductive rights and other forms of legal control over human bodies frequently remind us that women are the primary ones whose bodies are increasingly regulated.[footnoteref:7] due to women’s potential roles as mothers, different elements of control are introduced into legislation in the name of protection of the foetus. examples are numerous: from more radical methods of control, such as abortion bans or control of assisted reproduction, to much milder options such as requirements of maternity clinic control in order to be eligible for maternity social benefits.[footnoteref:8] not surprisingly, the area of legislation pertaining to reproduction also falls close to the core of beliefs of many institutionalised religions. the core of many christian beliefs, including both catholic and evangelical, focuses on the role of god in the process of human creation. these diverse beliefs lead to what nisbet describes as ‘competition for worldviews’[footnoteref:9] among religious populations. among generally ‘poorly’ rather than ‘fully’ informed publics, religions frequently engage in competition for the support of individuals in matters concerning the regulation of reproduction and the creation of embryos.[footnoteref:10] focusing on the protection of values and beliefs allows churches to appeal for the support of like-minded members of the population and transforms these essentially non-political organisations into political communities.[footnoteref:11] and since groups usually respond to what they perceive as an attack on sacred values, churches find themselves in the position of ‘defenders’ of those values, who are justified to take political action.[footnoteref:12] in the context of assisted reproduction and women’s rights, any form of permissive regulation constitutes an attack on the natural order of creation. thus religion becomes a political force fighting for what is perceived as the protection of values, morals and identity.[footnoteref:13] in this process of politicisation of religion, observe wald et al., individual religious belief becomes secondary in favour of political homogeneity.[footnoteref:14] this politicisation of the religious group identity carries a distinctive quality of dividing the electorate[footnoteref:15] and whereas in diverse societies cultural resources may be diverse,[footnoteref:16] this is not true in societies where religious identity is more homogenous. in the case of such societies another element becomes evident in the religious discourses on matters of morality and values the equation of religious identity with national identity. as obirek observes, this nationalisation of religion is frequent in many nations with dominant catholic populations.[footnoteref:17] in these nations discourses on national religious values often blend with discourses on sexuality and gender.[footnoteref:18] the sexual morality of the nation is also treated as synonymous with religious morality. this leads to an equation of the interests of a religion with the interests of the family and through the prism of the family, the interests of the entire state. as friedland observes in his political analysis of religious nationalisms: [7: see e.g. yakare-oule jansen, ‘the right to freely have sex? beyond biology: reproductive rights and sexual self-determination’, 40 akron law review (2007), pp. 314-317; isabel karpin, ‘legislating the female body: reproductive technology and the reconstructed woman’, 3 columbia journal of gender and law: 1; fleishman (2000), supra note 3, pp. 304-305.] [8: see e.g. in finland: äitiysavustuslaki [law on maternity grant] 28.5.1993/477, para. 2.] [9: matthew c. nisbet, ‘the competition for worldviews: values, information, and public support for stem cell research’, 17 international journal of public opinion research: 1 (2005).] [10: ibid.] [11: kenneth d. wald, dennis e. owen, samuel s. hill, ’churches as political communities’, 82 american political science review: 2 (1988). ] [12: kenneth d. wald, adam l. silverman, kevin s. fridy, ‘making sense of religion in political life’, 8 annual review of political science (2005), p. 130.] [13: ibid.] [14: wald, owen, hill (1988), supra note 10.] [15: wald, silverman, fridy (2005), supra note 11, p. 129.] [16: ibid, p. 132.] [17: stanislaw obirek, ‘katolicki czyli polski. o nowych formach polskiego nacjonalizmu’ [catholic or polish: the new forms of polish nationalism], 1 jewish history quarterly (2009), p. 41.] [18: see e.g. alan finlayson, ’sexuality and nationality: gendered disources in ireland’ in: t. carver and v. mottier, politics of sexuality: identity, gender, citizenship (london: routledge, 2005), pp. 91-101; ruth fletcher, ‘reproducing irishness: race, gender and abortion law’, 17 canadian journal of women and the law (2005), pp. 365-404.] religious nationalisms are animated by family drama; they all center their fierce energies on the family, its erotic energies, its gendered order. this is because the institutional logic of religion centers on the order of creation, locating humanness in the cosmos, replicating cosmology through ritual, a practical metaphysics that necessarily points before life and death.[footnoteref:19] [19: roger friedland, ’religious nationalism and the problem of collective representation’, 27 annual review of sociology (2001), p. 134] politicised and nationalised religion also frequently comes close to political religion, a concept, which albeit not without contestation,[footnoteref:20] is used in political theory to describe qualities of dictatorial, authoritarian or theocratic regimes and their ability to operate in ways which resemble religious forms of life. both politicised and political religions often concentrate on the denial of personal autonomy. as burrin observes, political religion’s sole focus is denial of the liberal conception of life and the existence of separate spheres of social life. the goal of a political religion is to ‘encompass the entire life of society in the political’. and achievement of that goal can be done only by suppressing ‘the free display of tastes, preferences and behaviour’.[footnoteref:21] as himmelstein reminds us, after halebsky and okraku before him, the common theme in religious conservatism that opposes women’s reproductive autonomy is a general opposition to too much freedom, too much autonomy and too much liberty from traditional roles and norms.[footnoteref:22] [20: see e.g. emilio gentile, ‘political religion: a concept and its critics – a critical survey’, 6 totalitarian movements and political religions: 1 (2005).] [21: philippe burrin, ‘political religion, the relevance of a concept’, 9 history and memory: 1(2) (1997), p. 328. ] [22: jerome l. himmelstein, ‘the social basis of antifeminism: religious networks and culture’, 25 journal for the scientific study of religion: 1 (1986), p. 9.] the study below does not take as its objective the exclusion of religion from public life or advocating for a uniform and purely secular conception of women’s reproductive rights. instead it attempts to illustrate the homogenising impact of dominant politicised religion on conceptions of femininity and religiosity in increasingly diverse societies. it focuses on the polish example of the battle for the banning of ivf despite overwhelming popular support for the procedure and the voices of protest of those most concerned. iii. historical reasons for the strong political position of the roman catholic church in poland catholicism has for centuries been the dominant religion in poland. in its recent history, the role of the church has been particularly significant. it played an important role in the re-establishment of the democratic system in poland in 1989. in the country where more than 90 per cent of a population of almost 40,000,000 is considered catholic, the church supported opposition movements leading to the fall of the former eastern bloc. the election of a pope from poland in 1978 reinforced the strong bond between the opposition and the church. at the time of the solidarity movement, the involvement of the church in the processes leading to the fall of the old regime was seen as a political victory of freedom of religion rather than a danger to other democratic freedoms.[footnoteref:23] [23: see e.g. wladyslaw sila-nowicki, ‘the role of the catholic church in polish independence movement’, 6 new york law school journal of international and comparative law (1984–1986), pp. 703–707.] after the re-establishment of democracy, however, the church started to gain more and more political power. the role of religion in polish society and politics became increasingly significant and political parties originating from the solidarity movement declared their catholic commitment due to their historic heritage. during their periods of domination in parliament, post-solidarity parties brought in new laws mandating catholic religious instruction classes in public schools[footnoteref:24] and tightening abortion regulation.[footnoteref:25] during the 23 years of democratic changes in poland, the centre and right-wing parties affirmed their origins in the solidarity movement and in a stronger or weaker way their commitment to catholicism and catholic values, or at least to christianity and christian values. the political left, on the other hand, evolved over time into what is commonly considered a social democratic movement and embraced in their programmes the values of human and constitutional rights including social rights, state neutrality in religious matters and women’s rights along with reproductive rights. originally, however, polish social democratic parties consisted of many members who had previously belonged to the former structures of the governing communist party.[footnoteref:26] political polarisation began when the right wing parties began to refer to the left wing as ‘post-communists’, ‘heirs of the old regime’ and ‘enemies’ of national and catholic values. this polarisation became particularly visible in the pre-electoral discourse in 2005. during their election campaign prawo i sprawiedliwosc (pis)[footnoteref:27] used as their leading mottos slogans about clearing the debts of the past and full ‘decommunisation’.[footnoteref:28] at the same time, the more strongly the parties identified themselves with the political right wing, the greater role in their programmes was given to catholic values as one of the means of reaffirmation of polish national interests and opposition to the ‘communist’ values professed by the socialists. in the political discourse led by the right wing parties, catholic values became synonymous with patriotic values and opposed to socialist, ‘post-communist’ and even european values, which were seen as foreign and oppressive. [24: rozporządzenie min. edukacji narodowej w sprawie organizowania nauki religii w szkołach publicznych [ordinance of the minister of education on the organisation of religious instruction classes in public schools], dz.u z 1992 r. nr 36 poz.155 and konkordat między stolicą apostolską i rzecząpospolitą polską [concordat between the republic of poland and the holy see], dz. u. z 1998 r. nr 51, poz. 318, article 12.1.] [25: ustawa z dnia 7 stycznia 1993 r. o planowaniu rodziny, ochronie płodu ludzkiego i warunkach dopuszczalności przerywania ciąży [law on family planning, protection of the foetus and conditions of legally permitted abortion], dz.u z 1993 r., nr 17, poz. 78; z 1995 r., nr 66, poz. 334, z 1996 r., nr 139, poz. 646, z 1997 r. nr 141, poz. 943, nr 157, poz. 1040 i z 1999 r. nr 5, poz. 32.] [26: see e.g. frances millard, ‘poland's politics and the travails of transition after 2001: the 2005 elections’, 58 europe-asia studies: 7 (2006), pp. 1007 –1031; aleksander smolar, ‘poland's emerging party system’, 9 journal of democracy: 2 (1998), pp. 122–133.] [27: prawo i sprawiedliwosc [law and justice] is a right wing party led by jaroslaw kaczynski, former prime minister in the years 2006–2007.] [28: program prawa i sprawiedliwosci 2005–2007, [political programme of law and justice 2005–2007], dokumenty programowe prawa i sprawiedliwosci.] this reflected upon the position of polish women and the image of the family. changes and debated changes pertaining to the sphere of family life included closing down the institution of the governmental plenipotentiary for gender equality in november 2005 and establishing as a ‘replacement’ an organ belonging to the legislature, the parliamentary committee for family matters and women’s rights, led by the ultra-conservative mp alina sobecka representing liga polskich rodzin (lpr).[footnoteref:29] matters discussed during the conservative government’s rule included among others an absolute ban on abortion, limitation of access to contraceptives and lengthening maternity leave without the possibility of sharing the leave by both of the parents. the issue of in vitro fertilisation was not actively discussed during that time. [29: liga polskich rodzin [league of polish families] was an ultra conservative party, belonging to the governmental coalition between the years 2006–2007.] iv. the new government and the need for ivf regulation when the political situation stabilised after the premature parliamentary elections in 2007 and centrist party platforma obywatelska (po) established the new government, the strong catholic influence was moderated.[footnoteref:30] the institution of governmental plenipotentiary for gender equality was re-established in march 2008 and the absolute ban on abortion and previous initiatives suggesting limited access to or at least labelling of contraceptives as ‘health hazardous’ were no longer discussed. [30: platforma obywatelska [civic platform] is a centrist party, led by the current prime minister donald tusk and re-elected as a majority party in october 2011.] however, the discussion of catholic morality and the role of the family returned to the public debate when the po-led government began preparing proposals aiming at regulation of in vitro fertilisation and gamete donation, procurement and conditions of storage. specialised laws regulating assisted reproduction including ivf, gamete donation and surrogacy[footnoteref:31] do not currently exist. medical practice operates solely on the basis of customary norms of good practice.[footnoteref:32] existing law on the procurement, storage and transplantation of human cells, tissues and organs regulates the storage of all human cells and tissues without distinction between gamete cells or human embryos.[footnoteref:33] poland has so far ratified neither the convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine: convention on human rights and biomedicine (referred to as the oviedo convention) nor its additional protocols. the convention was signed by poland in 1999, but so far the ratification process has not followed. specific regulation of the area is, however, required by the collection of bioethical eu directives: directive 2004/23/ec, directive 2006/17/ec and directive 2006/86/ec, which regulate the quality and safety of donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells.[footnoteref:34] the directives require implementation in order to adjust polish law to the requirements of eu law. most of the proposed draft proposals justified the introduction of the regulation by reference to the requirements of european law and european human rights law.[footnoteref:35] on the european legal plane, however, common standards regarding the protection of gametes or embryos are not highly specific. in the context of human rights the european court of human rights (ecthr) has many times underlined that currently no european consensus on the issue of the regulation of the procedure exists.[footnoteref:36] the european union’s directives, on the other hand require only minimum technical standards to be regulated and controlled by law. the requirements provided by the eu directives do not, however, in most cases differentiate between gametes, embryos or other human cells and tissues. the most important minimum requirements stemming from the directives include the obligations of the eu member states to: [31: according to current legal scholarship a surrogacy agreement is not a binding agreement under polish law and cannot be executed, see e.g. marta soniewicka, ‘sprawozdanie z debaty polskiego towarzystwa bioetycznego „jak uregulować kwestię macierzyństwa zastępczego?”’[report on the debate of the polish bioethical society: ‘how to regulate surrogacy’], 22 diametros (2009), pp. 178-197.] [32: see further e.g. eleonora bielawska-batorowicz, ‘poland: provision and guidelines for third party assisted reproduction’ in: e. blyth, r. landau, third party assisted conception across cultures: social, legal, and ethical perspectives (london: jessica kingsley publishers, 2004), pp. 168-188. ] [33: ustawa o pobieraniu, przechowywaniu i przeszczepianiu komórek, tkanek i narządów [law on procurement, storing and transplanting of human cells tissues and organs], dz. u. z 2005 r. nr 169, poz. 1411.] [34: see below.] [35: each proposal contains a brief paragraph explaining and justifying the proposed provision. the majority of the proposals are justified by the necessity of implementation of the european directives, see eg. projekt ustawy o ochronie genomu ludzkiego i embrionu ludzkiego, [draft law on the protection of human genome and embryo], druk 3466, 18 june 2009, p. 36, para. 3. ] [36: see e.g. evans v. uk, 10 april 2007, european court of human rights, no. 6339/05; s.h and others v. austria, 3 november 2011, european court of human rights, no. 57813/00.] establish a competent authority or authorities responsible for implementing the requirements of directive 2004/23/ec[footnoteref:37] and competent authority or authorities to conduct inspection of facilities dealing with the procurement, donation, testing, storage, preservation and distribution of human cells and tissues[footnoteref:38] [37: european parliament and the european council, directive on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, 2004/23/ec, article 4.1.] [38: ibid, article 7.] ensure that testing and procurements of tissues and cells are carried out by persons with appropriate training and experience[footnoteref:39] and establishments where testing, preservation, storage and distribution of those cells and tissues take place are accredited, designated, licensed or authorised by the relevant authority[footnoteref:40] [39: ibid, article 5.1.] [40: ibid, article 6.1.] ensure that testing of donors should be carried out by a qualified, accredited, authorised or licensed laboratory[footnoteref:41] [41: ibid, article 5.2.] ensure that all tissues and cells should be traceable and that member states implement a tracking system,[footnoteref:42] which will use a single european identifying code[footnoteref:43] [42: ibid, article 8.] [43: european commission, commission directive implementing directive 2004/23/ec of the european parliament and of the council as regards traceability requirements, notification of serious adverse reactions and events and certain technical requirements for the coding, processing, preservation, storage and distribution of human tissues and cells, 2006/86/ec, article 10.] ensure that donation is voluntary and unpaid and based on anonymity of the donor and the recipient[footnoteref:44] [44: ibid, article 12.] establish a system of notification of serious adverse events ad reactions which may take place during procurement or donation[footnoteref:45] [45: supra note 36, article 11.] ensure that in the case of gametes any kind of gamete or embryo misidentification shall be considered a serious adverse event[footnoteref:46] [46: supra note 42, article 6.2.] ensure that biomedical interventions are undertaken only under conditions of full and informed consent.[footnoteref:47] [47: ibid, article 13 and charter of fundamental rights of the european union, 2000/c 364/01, article 3.] a comparative study on medically assisted reproduction in 39 countries issued by the council of europe shows great diversity in the methods of regulation of assisted reproduction and access to those methods.[footnoteref:48] different levels of social consensus are illustrated in the study. however, none of the analysed countries completely bans the procedure.[footnoteref:49] the ecthr also underlines the lack of european consensus on the matter. the recent judgment in the case of s.h. and others v. austria[footnoteref:50] concerned the problems of two couples who suffered from types of infertility which prevented them from participating in the ivf procedure based on the use of their own gametes. meanwhile austrian legislation did not allow for donation of gametes and in particular donation of ova. the donation of sperm was regulated differently in regard to in vitro and in vivo fertilisation procedures. initially the ecthr in its chamber judgment found that such differentiation in law between various types of infertile couples did not sufficiently balance between public and private interests. in the appeal judgment, however, the court underlined the lack of european consensus on the matter. at the same time, the grand chamber strictly emphasised that whereas regulation of ivf falls into an area enjoying a wide margin of appreciation of the member states, the key consideration in such regulation ought to be a fair balance between the competing interests of the state and those directly affected by legislative choices.[footnoteref:51] [48: council of europe, medically assisted procreation and the protection of the human embryo, comparative study on the situation in 39 states, strasbourg, 4 june 1998.] [49: ibid, p. 22.] [50: s.h. and others v. austria, 3 november 2011, european court of human rights, no. 57813/00] [51: ibid, paras. 96-97.] v. the proposals introduced and the church-stimulated debate on the morality of the procedure given the lack of legal regulation of this area in polish law, a number of proposals implementing the above mentioned directives have been introduced. yet until the end of the 2007-2011 parliamentary term none of them was successfully adopted. the main legislative initiatives included six proposals introduced between the years 2008 and 2010. two of them were introduced by the representatives of the governing party, two by the right side of the opposition, one by the left side of the opposition and one by an independent civil initiative. the first draft proposal prepared by mp jaroslaw gowin,[footnoteref:52] representing the governing party, was introduced to the speaker of the parliament in december 2008 and later modified. the second draft proposal was introduced by another mp representing the same party, malgorzata kidawa-blonska,[footnoteref:53] and included more liberal regulations than those submitted by her party colleague. [52: projekt ustawy o ochronie genomu i embrionu ludzkiego oraz polskiej radzie bioetycznej i zmianie innych ustaw, [draft law on the protection of human genome and the polish bioethical council and amendments of other laws], druk 3467, 28 august 2009.] [53: projekt ustawy o zmianie ustawy o pobieraniu, przechowywaniu i przeszczepianiu tkanek, komorek i narzadow, [draft law amending the law on procurement, storing and transplanting of human cells, tissues and organs], druk 3470, 28 august 2009 and projekt ustawy o prawach i wolnosciach czlowieka w dziedzinie zastosowan biologii i medycyny oraz o utworzeniu polskiej rady bioetycznej [draft law on human rights and freedoms in biology and medicine and creation of the polish bioethical council], druk 3468, 28 august 2009.] in addition to the governmental drafts, representatives of the opposition introduced their own legislative proposals. a draft presented by boleslaw piecha, representative of the former right wing governing party pis, proposed a total ban and penalisation of in vitro fertilisation.[footnoteref:54] the latest draft advocating for an absolute ban on the procedure was introduced at the end of the year 2010 by teresa wargocka, a representative of the same party.[footnoteref:55] [54: projekt ustawy o ochronie genomu ludzkiego i embrionu ludzkiego, [draft law on the protection of human genome and embryo], druk 3466, 18 june 2009.] [55: projekt ustawy o zakazie zaplodnienia pozaustrojowego i manipulacji ludzka informacja genetyczna, [draft law on the ban of in vitro fertilization and manipulation of human genetic material], druk 3471, 17 february 2010.] furthermore an independent civil legislative initiative ‘contra in vitro’ twice introduced their own draft proposing the banning and penalisation of in vitro fertilisation, identically to the proposals of piecha and wargocka.[footnoteref:56] [56: projekt ustawy o zmianie ustawy kodeks karny, [draft law amending the penal code], druk 2249, 15 june 2009.] meanwhile the left side of the opposition introduced a draft presented by marek balicki,[footnoteref:57] prepared in cooperation with women’s rights organisations, leading constitutional lawyers and scientists.[footnoteref:58] [57: projekt ustawy o zmianie ustawy o pobieraniu, przechowywaniu i przeszczepianiu tkanek, komorek i narzadow, [draft law amending the law on procurement, storing and transplanting of human cells, tissues and organs], druk 2707, 28 august 2009.] [58: among others the committee preparing the draft included professor marian filar, professor jan widacki, jolanta szymanek-deresz and izabela jaruga-nowacka.] despite this plethora of proposals, public debate did not concentrate on the multiple legal aspects of the procedure and the best and safest means of regulation of this difficult area, but rather the morality of the procedure itself. the idea of achieving a consensus between competing views has not been raised, but instead an intransigent and strongly polarised battle over the legislation began. even though the ivf procedure was a relatively uncontroversial issue and in 2009 was supported by as much as 77 per cent of the polish population, the church began a steady attack against the legality of ivf.[footnoteref:59] already in december 2008, when the first ‘contra in vitro’ project was being prepared, the conference of the episcopate of poland issued an official statement which encouraged the members of parliament to introduce an absolute ban on vitro fertilisation: [59: cbos, public opinion research center, polish public opinion, july 2010, <www.cbos.pl/pl/publikacje/public_opinion/2010/07_2010.pdf.>, accessed on 1 march 2012. according to the study support for ivf dropped from 77 per cent in the year 2009 to 73 per cent in the year 2010.] when the first initiative to regulate [in vitro fertilisation] is taken, all the members of parliament who are concerned with the protection of human rights should take all the steps necessary to ban this method absolutely. if, however, such a solution were rejected in the parliament, it is an ethical duty of the members of parliament to be active in the legislative process and maximally limit the harmful aspects of this regulation.[footnoteref:60] [60: episcopate of poland, oświadczenie zespołu ekspertów kep ds. bioetycznych w porozumieniu z prezydium konferencji episkopatu polski [statement of the group of experts on bioethical issues of the conference of the episcopate of poland in cooperation with the central board of the conference of the episcopate of poland] , 22 december 2008, para. 5, translation by the author.] the same statement referred to the method as ‘evil’ due to destruction of embryos as well as the fact that the method is manipulative and subjects a human being to ‘massive production’.[footnoteref:61] [61: ibid, para. 4.] throughout the legislative struggle these types of statements have been repeatedly issued on the occasions when the episcopate’s groups of experts has debated. the last two statements issued in 2010 once more expressed condemnation for the procedure. in the first statement issued in march 2010, the group of experts on bioethical matters underlined again that: the opposition of the catholic church against the in vitro method stems from the christian faith, which is the guide in taking all decisions. god created a woman and a man to create life in the act of marital love and only by them themselves. during the in vitro procedure, human dignity is infringed, since the conception does not happen in the act of love, but as a result of an experimental technical procedure. the procedure resembles ‘production of human beings’.[footnoteref:62] [62: episcopate of poland, oświadczenie zespołu ekspertów kep ds. bioetycznych w porozumieniu z prezydium konferencji episkopatu polski [statement of the group of experts on bioethical issues of the conference of the episcopate of poland in cooperation with the central board of the conference of the episcopate of poland], 24 march 2010, paras. 4–5, translation by the author.] furthermore, in the same statement the group of experts developed their argument for banning the in vitro method regardless of the person’s religious or ethical convictions. the episcopate’s experts justified the necessity of such a ban by reference to the catholic understanding of natural law, according to which it should be natural to oppose procedures producing a number of human embryos that will not be used and will be eventually experimented on or destroyed. such a perception of the nature of ivf has been presented in several official documents issued by the vatican, such as for instance the encyclical evangelium vitae[footnoteref:63] and instruction donum vitae.[footnoteref:64] however, the experts of the polish episcopate expressed a more extreme conviction that the arguments of those claiming that an embryo is not yet a human being are not based in science and are equivalent to an ideology.[footnoteref:65] [63: john paul ii (1995), supra note 4.] [64: congregation for the doctrine of the faith (1987), supra note 5.] [65: episcopate of poland (2010), supra note 61, para. 5.] in may 2010 the episcopate’s group of experts on family matters issued a statement going even further. when the ‘contra in vitro’ proposal was for the second time rejected in parliament, the experts on family matters condemned all the members of parliament who voted against it, comparing them to child murderers and refusing them the right to participate in holy communion: we must remember, that those who kill [conceived life], those who actively participate in killing or establish laws against conceived life, and such is the life of embryos that a high percentage are damaged in the in vitro procedure, stand openly against the teaching of the catholic church and cannot participate in holy communion until they change their position.[footnoteref:66] [66: episcopate of poland, komunikat z konferencji rady ds. rodziny kep, diecezjalnych duszpasterzy rodzin i diecezjalnych doradcow zycia rodzinnego [announcement of the conference of the council of family matters, diocesial family priests and diocesial family life advisors at the conference of the episcopate of poland], 19 may 2010, para. 3, translation by the author.] this statement resulted initially in a tension within the polish church itself and some of the priests and bishops belonging to the conference of the episcopate did not agree with the statement and suggested it was more of an appeal to the conscience of the believers rather than a doctrinal declaration.[footnoteref:67] however, father longchamps de berier who most strongly expressed such a liberal opinion was later criticised by the catholic media for ‘meddling with the conscience of the believers’.[footnoteref:68] eventually he retracted his statement, underlining that the church firmly opposes the procedure.[footnoteref:69] [67: katarzyna wisniewska, ‘in vitro czy komunia spór w kościele’ [in vitro or the holy communion – conflict within the church], gazeta wyborcza, 26 may 2010, <wyborcza.pl/1,75478,7935370,in_vitro_czy_komunia___spor_w_kosciele.html#ixzz0tyn0bcsl>, accessed on 1 march 2012.] [68: ibid and ‘błędy, które popełnił ks. franciszek longchamps de berier’ [mistakes of father longchamps de berier], fronda, <http://www.fronda.pl/news/czytaj/tytul/bledy_ktore_popelnil_ks_franciszek_langchamps_de_berier >, accessed on 1 march 2012.] [69: ‘ks. franciszek longchamps de bérier: kościół nie dopuszcza in vitro’ [father longchamps de berier: church does not allow ivf], super express, 22 october 2010, <http://www.se.pl/wydarzenia/opinie/koscio-nie-dopuszcza-in-vitro_157562.html>, accessed on 1 march 2012.] non-catholic press debate also focused on the morality of the procedure and the arguments of the church. arguments such as ‘no absolute right to have children’ and ‘no right to kill unborn children’ were discussed in the media by the presenters of the drafts and the representatives of the church.[footnoteref:70] as a consequence, political debate also became affected and once more polarised into the battle between ‘catholic values’ and ‘leftist liberal values’. [70: detailed chronological press reports on the in vitro debate in poland are available at the internet portal of gazeta wyborcza: <wyborcza.pl/0,87494.html>, accessed on 1 march 2012.] a. conservative proposals the church’s concerns envisioned in some of the drafts the discussion revolving around morality affected the final shape of some of the legislative initiatives. drafts proposed by the right wing reflected in a stronger or weaker way the concerns of the church. the project ‘contra in vitro’, the draft proposal of mp piecha and the latest draft introduced by mp wargocka all proposed an absolute ban on the procedure, manifesting directly the moral stance of the church. the earliest civic legislative initiative ‘contra in vitro’ proposed a draft banning the production of a human embryo and a penalty of three years imprisonment for persons involved in the procedure.[footnoteref:71] a civic legislative initiative is a draft law presented in accordance with article 118.2 of the polish constitution. this provision allows for the introduction of a legislative proposal by a group of at least 100,000 citizens. the ‘contra in vitro’ initiative was supported by 160,000 citizens. it focused purely on penalising the procedure. according to the authors the initiative was motivated by the ‘sinful’ and ‘immoral nature’ of the procedure.[footnoteref:72] the proposal was rejected by the parliament on 10 september 2009 by 244 votes to 162. a modified ‘contra in vitro’ draft was again voted upon on 6 may 2010 and rejected by 232 votes to 179. [71: supra note 55, article 160a, para. 1.] [72: more details on the initiative and their programme is available at the initiative’s internet portal: <www.contrainvitro.pl>, accessed on 1 march 2012 .] the draft proposal introduced by mp piecha included comparable provisions but in addition provided a ‘rescue’ procedure for already created embryos in the form of implantation of the embryo into its biological mother’s body[footnoteref:73] or in exceptional circumstances an embryo adoption.[footnoteref:74] in addition piecha’s draft implemented some of the safety requirements concerning the establishment of central biomedical registers and the polish bioethical council[footnoteref:75] a governmental advisory body on bioethical matters.[footnoteref:76] mp piecha did not deny his support for the church. the mp, who belonged to a pro-life organisation, justified the ban proposed in his draft by reference to the ‘gross immorality’ of the procedure.[footnoteref:77] the draft’s justification refers directly to the christian heritage of the nation and implies that moral standards in the case of in vitro ought to be uniform regardless of religious or non-religious beliefs, even in a pluralistic society.[footnoteref:78] according to the draft, not only destroying an embryo[footnoteref:79] but any kind of embryo creation outside of a woman’s body ought to be forbidden and penalised by imprisonment for up to two years.[footnoteref:80] destroying an embryo was sanctioned by three months to five years imprisonment.[footnoteref:81] moreover, it introduced a conscience clause for doctors, with the obligation of mentioning their refusal to conduct the procedure in the medical documentation. it did not however, provide a mechanism of securing access to the procedure or automatic referral to another specialist. the draft’s justification explained that a requirement of referral to another specialist would infringe the rights of a doctor by forcing him or her to provide information on medical procedures which are in contradiction to his or her conscience. such information, the draft explained further, would lead to a result which is morally unacceptable for a doctor in question.[footnoteref:82] [73: supra note 53, article 21.] [74: ibid, article 22.] [75: ibid, article 23.] [76: ibid, article 31.] [77: see e.g. anna skibniewska, ‘zamach na in vitro’ [attack on in vitro], 24 tygodnik przeglad, 21 june 2009.] [78: supra note 53, p. 38, para. 6.] [79: ibid, article 14.] [80: ibid, article 14 and article 53.] [81: ibid, article 52.] [82: ibid, p. 57, para. 29.] the latest draft expressing a radical approach aimed at banning the procedure was introduced by mp wargocka. as with ‘contra in vitro’ it penalised the creation and destruction of an embryo by imprisonment for up to two years in the case of its creation and up to five years in the case of its destruction.[footnoteref:83] any kind of creation of an embryo outside of a woman’s body would be forbidden.[footnoteref:84] the draft did not include any rescue adoption provisions. however, it did introduce regulations regarding gamete procurement and a conscience clause.[footnoteref:85] [83: supra note 54, article 4, article 56 and article 57.] [84: ibid, article 5.] [85: ibid, article 19. ] b. moderate proposals and the idea of balancing rights proposals presented by the centre of the political scene, indirectly also focused on the concerns expressed by the church. however, these more moderate proposals attempted to balance in various ways both the protection of an embryo and protection of the right to privacy expressed in the desire to have children. the most loudly disputed draft, the one proposed by jaroslaw gowin, included a number of provisions which did not attempt to ban the procedure altogether but responded to at least some of the church’s concerns. due to the high possibility of parliament accepting the draft, it raised the concerns of women’s rights organisations. gowin’s draft, unlike ‘contra in vitro’, piecha’s or wargocka’s proposal, allowed for the procedure to be carried out, but limited it only to married couples and focused primarily on the protection of created embryos. it did not allow for free donation of gametes but limited the availability of the procedure to the gamete donors taking part in it.[footnoteref:86] concern about the life of the embryo was included in article 21, which prescribed that only one embryo could be created in the procedure. exceptionally, the proposal allowed for the creation of two embryos but only under the condition of their simultaneous implantation.[footnoteref:87] article 20 of gowin’s proposal forbade the freezing of embryos. instead article 19 allowed for the freezing of gametes before the procedure. furthermore, identically to piecha’s draft, it proposed the amendment of penal law and provided a penalty of imprisonment between three months and five years for anyone who destroys a human embryo.[footnoteref:88] [86: supra note 51.] [87: ibid, article 21.] [88: ibid, article 53.] some of the most criticised provisions of gowin’s draft proposed a conscience clause for pharmacists,[footnoteref:89] nurses[footnoteref:90] and doctors.[footnoteref:91] the changes, analogically to piecha’s draft proposal discussed previously, would introduce the possibility of refusing medical services contrary to the pharmacist’s, nurse’s or doctor’s conscience. the concerns focused on the accessibility of the procedure in the case of refusal by a doctor. [89: ibid, article 63.] [90: ibid, article 64.] [91: ibid, article 65.4.] as with piecha’s draft, it also proposed the creation of a specialised body, the bioethical council, which would oversee problems related to all bioethical issues, including the procedure of in vitro fertilisation, and decide about the use of each gamete and each embryo. the other draft, introduced by another mp representing po, kidawa-blonska, provided more relaxed proposals entrenched in two separate draft laws dealing with technical requirements and human rights and freedoms.[footnoteref:92] the protection of the embryo was still crucial in the proposed provisions. the proposal allowed for in vitro also for unmarried couples but limited the availability of the procedure only to heterosexual couples.[footnoteref:93] it provided for the protection of created embryos but unlike in gowin’s proposals, only of those embryos capable of healthy and undisturbed development. it allowed for pre-implantation diagnostics of the embryos in order to exclude genetic diseases which would later legally allow the mother to undergo an abortion.[footnoteref:94] [92: supra note 52.] [93: projekt ustawy o prawach i wolnosciach czlowieka w dziedzinie zastosowan biologii i medycyny oraz o utworzeniu polskiej rady bioetycznej [draft law on human rights and freedoms in biology and medicine and creation of the polish bioethical council], druk 3468. 28 august 2009, article 19.] [94: ibid, article 9 and article 11.] c. the primacy of women’s reproductive choices – the liberal proposal the draft presented by marek balicki, former social democratic minister of health and social matters, did not include provisions focusing on the concerns presented by the church. instead it envisioned a very liberal version of the legislation which allowed for the choice of the best method of assisted procreation in accordance with the best interest of the patients taking part in the procedure and their health.[footnoteref:95] it allowed for ivf both in marital and non-marital relations and for the donation of gametes and embryos.[footnoteref:96] it provided specific regulations concerning the conditions of procurement and storage of both gametes and embryos, which followed the requirements of the eu directives.[footnoteref:97] furthermore, it prepared certain provisions enabling ratification of the oviedo convention. in accordance with the oviedo convention’s protocol it banned human cloning and the creation of hybrids and chimeras.[footnoteref:98] it protected the embryo from trade and usage or destruction without the consent of the gamete donors.[footnoteref:99] moreover it banned testing for the purposes of sex selection of the future child.[footnoteref:100] [95: supra note 56, article 1.7.] [96: ibid, article 1.3f and 1.9.] [97: ibid, article 1.] [98: ibid, article 1.32 and additional protocol to the convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine, on the prohibition of cloning human beings, paris, 12 january 1998, article 1 and convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine: convention on human rights and biomedicine, oviedo, 4 april 1997, article 13.] [99: supra note 56, article 1.4, 1.22 and 1.32.] [100: ibid, article 1.32.] d. the feminist and infertility organisations versus the arguments of the church – polarisation of the debate when the first drafts had been introduced in parliament feminist, pro-women and infertility organisations attempted to take an active part in the discussion on the regulation of ivf. first, feminist organisations took part in demonstrations against the proposals of gowin and ‘contra in vitro’.[footnoteref:101] on 30 june 2010 federacja na rzecz kobiet i planowania rodziny [federation for women and family planning] and stowarzyszenie na rzecz nieplodnosci nasz bocian [association for infertility problems our stork] organised a press conference on in vitro legislation and appealed for objective and rational legislation.[footnoteref:102] they stood in opposition to the initiatives representing the position of the church and raised the following arguments against some of the proposals. [101: ‘demonstracja przeciwko ustawie gowina’ [demonstrations against gowin’s draft], polish press agency, 24 january 2009.] [102: konferencja prasowa pt.:"in vitro, kościół, polityka" [press conference on in vitro, church and politics], <www.nasz-bocian.pl/node/15997>, accessed on 1 march 2012.] firstly, the drafts such as the ones proposed by gowin, piecha and ‘contra in vitro’ stigmatised persons suffering from infertility. secondly, the draft presented by gowin was criticised for a variety of other reasons. the primary concern was the usage of the controversial and scientifically risky practice of freezing ova instead of embryos and the limitation of the number of embryos to be created. feminist organisations underlined that the creation of only one or two embryos and the implantation of all created embryos were risky and put women’s health in danger. in the situation where pre-implantation diagnostics would not be possible, women would have to endure not only the painful hormonal therapy and procedure but also undergo a risk of future abortion and repetition of the procedure if the embryo carried serious genetic diseases or disorders. moreover, women’s rights organisations argued, the limitation of the procedure only to married couples infringed the right to privacy.[footnoteref:103] wanda nowicka analysed the draft as ‘dangerous, incoherent and badly written’ and in addition aimed exclusively at protecting the embryo in accordance with catholic morality and not helping couples suffering from infertility.[footnoteref:104] she warned against the dangers of introducing control over the lifestyles of citizens, including the decision to marry and have children.[footnoteref:105] [103: ibid.] [104: wanda nowicka, ‘gametes more important than people – poland gets closer to the ban on in vitro fertilisation’, 12 law and gender (2009), p. 100.] [105: ibid.] furthermore, in the opinion of the women’s rights organisations, legislating a conscience clause could lead to further ineffectiveness in the provision of medical services in the area of reproductive health. it may give rise to further violations of the right to privacy and access to legally permitted services, like those of legally allowed abortion or in vitro fertilisation. it would increase the number of cases like those of alicja tysiac[footnoteref:106] and should not be done without legislating an obligation to refer further to a specialist who could provide such services according to his or her conscience.[footnoteref:107] [106: tysiąc v. poland, 20 march 2007, european court of human rights, no. 5410/03.] [107: see e.g. wanda nowicka, ‘in vitro według gowina’ [in vitro according to gowin], 19 december 2008, <www.wanda-nowicka.blog.onet.pl>, accessed on 1 march 2012.] catholic feminists have not expressed any strong views on the matter due to the novelty of catholic feminism in poland. the first catholic feminist organisation was registered in poland only in 2009.[footnoteref:108] however, in her article concerning the position of women in the polish church, ewa karabin expressed regret that church organs such as the group of experts on bioethical issues of the conference of the episcopate of poland consist solely of men, even if discussion within the group, such as that concerning ivf, focuses primarily on women’s bodies.[footnoteref:109] [108: ewa k. czaczkowska, ’ katolickie feministki łączą siły’ [catholic feminists join forces], rzeczpospolita, 2 january 2009, <http://www.rp.pl/artykul/242383.html>, accessed on 1 march 2012.] [109: ewa karabin, ‘nadchodzą zmiany? kościelna teoria i praktyka wobec kobiet’ [are changes coming? church theory and practice and women], amicta sole, <http://amictasole.pl/2011/07/06/nadchodza-zmiany-koscielna-teoria-i-praktyka-wobec-kobiet/>, accessed on 1 march 2012.] e. legal debate and the fate of the polish legislative proposals the protests of feminist and infertility organisations did not, however, meet with the full support of legal experts writing on the most controversial of the drafts, namely gowin’s draft. few scientific articles concerning the ivf proposals have been published in poland during the time of the debate.[footnoteref:110] whereas paweł łuków agreed with many feminists’ concerns criticising discriminatory provisions, such as those introducing age limits[footnoteref:111] or those favouring, as the author put it, ‘backward conceptions of the family model’,[footnoteref:112] others were far less critical. leszek bosek in his constitutional analysis of the proposals discussed here did not find sufficient reasons why they would cause constitutional difficulties or infringe anyone’s rights. he underlined that the constitution does not have any provisions which would make the existence of the procedure unconstitutional. however, according to bosek, in the light of article 38 of the constitution (protection of human life), article 30 (protection of human dignity) and article 18 (protection of marriage, family, maternity and parenthood), limitations on ivf, even those which exclusively aim at protection of an embryo, could be allowed.[footnoteref:113] he referred to the judgment of the polish constitutional court which provides that ‘the value of human life cannot be evaluated on the basis of age, health, foreseeable duration or any other criteria’.[footnoteref:114] according to bosek, despite the strong tendency to protect individual interests and the rights of the parents, in the lack of a clear dominating regulatory model and in the light of this judgement, it is constitutionally allowed for the legislation to focus primarily on securing the life of an embryo as constitutionally protected life.[footnoteref:115] joanna haberko concurred, finding gowin’s proposal aimed at maximum protection of an embryo as deserving approval.[footnoteref:116] [110: these include primarily: leszek bosek, ‘refleksje wokol prawnych uwarunkowan wspomaganej prokreacji’ [reflections on the legal conditions of assisted reproduction], 37diametros (2009), pp. 48–61; paweł łuków, ‘technologia dwudziestego pierwszego wieku w rekach piewców dziewietnastowiecznej rodziny’ [twenty first century technology in the hands of supporters of the nineteenth century family model], ptb debate ‘jak uregulowac zaplodnienie in vitro? 14-24 march 2009, < www.ptb.org.pl/pdf/lukow_in_vitro_1.pdf >, accessed on 1 march 2012; joanna haberko, ‘kilka uwag na temat statusu cywilnoprawnego ludzkiego embrionu w swietle projektu ustawy o ochronie genomu ludzkiego i embrionu ludzkiego oraz polskiej radzie bioetycznej i zmianie innych ustaw’ [a few remarks on the legal status of a human embryo in the draft law on the protection of human genome and the polish bioethical council and amendments of other laws], ptb debate ‘jak uregulowac zaplodnienie in vitro? 14-24 march 2009, <www.ptb.org.pl/pdf/haberko_in_vitro_1.pdf>, accessed on 1 march 2012. other more general discussion not related directly to the proposed drafts can be found in: marian machinek, ‘znaczenie argumentacji teologicznej w sporach dotyczących bioetyki’ [relevance of theological argumentation in bioethical arguments], 19 diametros (2009), pp. 66 – 77; joanna haberko, krzysztof olszewski, ‘moralne i prawne aspekty dążenia małżonków do posiadania dziecka w kontekście techniki zapłodnienia pozaustrojowego (in vitro)’ [moral and legal aspects of the desire of spouses to have children in the context of ivf], 30 prawo i medycyna: 10(1) (2008); joanna haberko, krzysztof olszewski, ‘jeszcze o moralnych i prawnych aspektach dopuszczalności zabiegów in vitro – polemika’ [once more on moral and legal aspects of ivf – polemics], 31 prawo i medycyna: 10(2) (2008); maria boratyńska, ‘prawne aspekty zapłodnienia pozaustrojowego – odpowiedź j. haberko i k. olszewskiemu’[legal aspects of ivf – reply to j. haberko and k. olszewski], 30 prawo i medycyna : 9(1) (2008).] [111: łuków (2009), ibid, pp. 1-4.] [112: ibid, p. 10.] [113: bosek (2009), supra note 109, pp. 48–61.] [114: judgment k 44/07, 30 september 2008, polish constitutional court.] [115: bosek (2009), supra note 109, pp. 57–61.] [116: haberko (2009), supra note 109, p. 16.] parliamentary debate, however, marginalised many aspects of the drafts and foregrounded the question of the protection of unborn life and the protection of catholics rather than engaging in a comprehensive discussion of the multiple legal details of the drafts. in the last parliamentary debate concerning the matter held on 22 october 2010, the majority of the voices concentrated on the dichotomy between religious and non-religious understandings of the beginning of human life. the drafters of the proposals themselves underlined the religious or non-religious background of their proposals and its significance for the understanding of human life. mp piecha referred to the process of eugenics and underlined the ‘rightfulness’ of the bishops’ opinion on the matter.[footnoteref:117] mp gowin, on the other hand, attempted to root the understanding of the beginning of life stemming from religious convictions in other, non-religious sources.[footnoteref:118] mp wargocka underlined the religious roots of human dignity and expressed the conviction that moral compromises in controversial matters like ivf, abortion or euthanasia constituted the greatest dangers for this dignity.[footnoteref:119] mp kidawa-blonska, on the other hand, carefully oscillated between religious and non-religious aspects. she justified her draft with the necessity of maximum limitation of the dangers to the embryo given the lack of agreement as to when the life begins.[footnoteref:120] mp balicki, representing the left, underlined the secular nature of the polish state and juxtaposed religious views with the view that ivf is a scientifically recognised infertility treatment and religious views did not allow catholics to limit the access of non-catholics to this treatment.[footnoteref:121] [117: sprawozdanie stenograficzne z 76 posiedzenia sejmu rzeczypospolitej polskiej [minutes of the 76th session of the sejm of the republic of poland], 22 october 2010, pp. 226-227.] [118: ibid, pp. 229-231.] [119: ibid, p. 234.] [120: ibid, pp. 231-233.] [121: ibid, pp. 240-241.] eventually, none of the draft proposals discussed in this article has succeeded in being adopted. as mentioned above, the proposal banning and penalising in vitro was rejected by the parliament on 10 september 2009 by 244 votes against 162. a modified ‘contra in vitro’ draft was again put to the vote on 6 may 2010 and rejected by 232 votes against 179. the draft proposed by mp piecha banning the procedure and proposing the adoption of already existing embryos was returned to its author after legal review and work in the parliamentary committees. similarly, two draft proposals proposed by the representatives of the governing party po were returned to the authors – gowin’s controversial draft and the less restrictive one of kidawa-blonska. the parliamentary legal review office found all three drafts either contrary to eu law or insufficiently implementing eu law.[footnoteref:122] the reviews underlined primarily formal failures or contradictions affecting proper implementation of the directives.[footnoteref:123] very few opinion giving organs engaged in any discussion on the appropriate balancing of rights and those who did were predominantly experts working in the health sector rather than the legal sector.[footnoteref:124] after corrections, all three drafts were again re-introduced to the parliament but none of them was successfully adopted up to the end of the 2007-2011 term.[footnoteref:125] the draft proposed by balicki, which was prepared with the representatives of women’s rights organisations, was never returned from the scrutiny of an extraordinary parliamentary committee where it was sent on 17 march 2010.[footnoteref:126] [122: polish press agency, ‘projekty o in vitro sprzeczne z prawem unijnym’ [in vitro drafts contrary to eu law], 24 september 2009.] [123: see e.g. zespol prawa europejskiego i miedzynarodowego [european and international law expert group], opinia w sprawie stwierdzenia, czy poselski project ustawy o ochronie genomu ludzkiego i embrionu ludzkiego w wersji uwzgledniajacej autopoprawke (przedstawieciel wnioskodawcow: posel boleslaw grzegorz piecha jest projektem ustawy wykonujacej prawo unii europejskiej, [opinion on the draft law on the protection of human genome and human embryo (introduced by boleslaw grzegorz piecha) and its nature as a law implementing the law of the european union], bas-wal-2539/09, 28 december 2009.] [124: see e.g. naczelna rada pielegniarek in poloznych [national council of nurses and midwives], opinion nipip/nrpip/dm/0055/237/09, 19 august 2009.] [125: supra note 116.] [126: komisja polityki spolecznej i rodziny [parliamentary committee on family matters and social policy], biuletyn 3558/vi, 17 march 2010. ] the discussion on the legal aspects and observed shortcomings of the drafts in terms of their compatibility with eu law has, however, never emerged publicly and played a secondary role in the parliamentary proceedings.[footnoteref:127] as the parliamentary debate illustrated, the primary discussion topic was the religious or non-religious conception of life. due to this polarisation and lack of more comprehensive legal debate, resolution of the problems concerning reproductive medicine was ultimately not reached up to the end of the 2007-2011 term of the parliament, leaving the european directives without adequate adoption. [127: see the full transcript of the debate, supra note 116.] vi. excluding subjects in question – the limits of deliberative democracy the central problem apparent in the current efforts aimed at legislating with regard to assisted reproduction procedures is the polarisation of the polish political debate. where discussion is visible it is conducted in a form of binary opposition rather than an inclusive dialogue. inclusive social deliberation appears missing. as emphasised by dryzek, the challenge of discursive democracy is to embrace pluralism and communicate across difference rather than erase the difference. deliberative theory in this sense still encounters multiple challenges.[footnoteref:128] does, however, one powerful group sufficiently represent social consensus? [128: john s. dryzek, deliberative democracy and beyond (oxford: oxford university press, 2002). ] iris marion young observes that problems of injustice are often caused not by mere oppression or exploitation but instead by marginalisation.[footnoteref:129] such marginalisation becomes particularly dangerous when an entire group of people are expelled from participation in social life.[footnoteref:130] analogically, in deliberation, inclusion is frequently violated by exclusion from democratic debate.[footnoteref:131] young distinguishes forms of external and internal exclusion. one of the forms of external exclusion occurs when socially powerful actors are able to dominate public discussion. that leaves other actors excluded and leads to outcomes in which citizens with formally equal rights have no real access to the fora and procedures through which they might influence decisions. however, even if they are included in the discussion, participants holding minority views are often internally excluded. this form of internal exclusion, in young’s account, occurs when those more powerful ignore, dismiss or patronise the statements of the minority. [129: iris marion young, justice and the politics of difference (princeton, new jersey: princeton university press, 1990).] [130: ibid, p. 53.] [131: iris marion young, inclusion and democracy (oxford: oxford university press, 2000), pp. 53-80.] similar conditions of fair deliberation are laid down by habermas who, following his model of communicative action as the basis for social deliberation,[footnoteref:132] advocates for public discourse which will be conducted under conditions of broad and active participation and in an egalitarian political culture.[footnoteref:133] cohen, on the other hand, underlines the framework of free expression that is required for reasoned consideration.[footnoteref:134] such free expression is necessary for the efficient outcome of deliberations, since it advances the common good. and the common good, in cohen’s understanding, cannot be fixed prior to deliberation, but instead is established by means of successful deliberation.[footnoteref:135] [132: jürgen habermas, between facts and norms (cambridge: polity press, 1996).] [133: jürgen habermas, ‘popular sovereignty as procedure’ in: j. bohman, w. rehg, deliberative democracy (cambridge, massachusetts: the mit press, 1997), pp. 35-66.] [134: joshua cohen, ‘deliberation and democratic legitimacy’ in: j. bohman, w. rehg, deliberative democracy (cambridge, massachusetts: the mit press, 1997), p. 83.] [135: ibid.] these conditions appear to be missing in the polish legislative efforts. fuszara underlines that the public conflict in poland is suspended between two polar oppositions the church and catholic politicians on the one hand and liberal feminists on the other hand.[footnoteref:136] the common good is not negotiable. instead, two pre-existing and antagonistic conceptions of the good are used in the debate: national catholic morality versus freedom of women to control their bodies. the lack of willingness of the polish catholic church to negotiate is manifested by its readiness to go as far as using the means of political blackmail. the statement of the episcopate council refusing holy communion to parliamentarians voting in favour of the availability of ivf[footnoteref:137] goes much further than participation in an open public discussion where all the voices are weighed equally. this attempt to take the role of an extra-parliamentary political force not bound by the wider social consent of the majority of the population or the voices of those primary affected infertile women and couples perpetuates external exclusion. minimisation of the importance of internal voices within the church and within the catholic community, on the other hand, constitutes a form of internal exclusion. voices such as those of father longchamps de berier or catholic women who do not take part in issuing statements such as those of the episcopate are ignored in order to present the position of the church as homogenous. this antagonises the discussion even further. [136: małgorzata fuszara, ‘between feminism and the catholic church: the women’s movement in poland’, 5 czech sociological review (2005), quoted in: j. heinen and s. portet, ‘religion, politics and gender equality in poland’, final research report prepared for the project religion, politics and gender equality, september 2009, p. 31.] [137: episcopate of poland (2010), supra note 65.] the availability of ivf for infertile couples is supported by the vast majority of society, including practising catholics. 73 per cent of polish society, including as many as 63 per cent of regularly practising polish catholics, support the method.[footnoteref:138] this fact, however, is rarely mentioned in the episcopate’s explanations regarding the necessity of the legislation. in contrast, support for the ban on abortion with the inclusion of certain exceptional situations has been steadily rising. as heinen and portet observe, the influence of the church on that rise was substantial and led to the situation in which most of society supports the current legal status quo.[footnoteref:139] the situation with ivf is diametrically different and the decrease in support has been minimal.[footnoteref:140] nevertheless, regardless of public opinion and the voices of those directly affected by the legislation, the church attempts to promote the catholic vision of the family as the only morally correct vision of the ‘common’ good. thanks to its dominant position in polish society and its influence on political parties, this non-negotiable opposition to ivf successfully marginalises those who are in practice the most affected by the legislation. [138: cbos, public opinion research center, polish public opinion, july 2010, <www.cbos.pl/pl/publikacje/public_opinion/2010/07_2010.pdf.>, accessed on 1 march 2012. according to the study support for ivf dropped from 77 per cent in the year 2009 to 73 per cent in the year 2010.] [139: jacqueline heinen and stephane portet, ‘religion, politics and gender equality in poland’, final research report prepared for the project religion, politics and gender equality, september 2009, pp. 23-25.] [140: supra note 58; katolicka agencja informacyjna [catholic information agency], ‘spada poparcie dla in vitro [decreasing support for in vitro]’, july 2010. ] in its statements quoted earlier in this text, the church chooses to present a stance in which understanding of the beginning of life as the moment of conception is beyond social discussion, and supports this position and the necessity of legislation banning ivf by reference to natural law. in the legal discussion in which politicians appeal to the concept of natural law and immorality,[footnoteref:141] however, the fact that natural law is only one of many legal doctrines, which currently is predominantly associated with the legal and philosophical doctrine of the catholic church, and not a universally recognised theory in contemporary jurisprudence, is hardly addressed. this strong struggle to ban or limit ivf against the will of society produces a hard to resist impression that the church attempts to discipline the non-obedient ‘flock’ by the measures of universally binding law, rather than participating in honest ethical and legal discussion where many views are taken into account. in this intensified battle, the image of women and the family is the one primarily affected. [141: supra note 53, p. 38, para. 6.] a. ‘proper’ women and ‘proper polish families’ only – the church and the stereotyping of women and families the central focus of polish debates concerning reproduction always revolves around the rights of an embryo. woman is rarely presented as a bearer of rights but instead treated too often solely as a vessel carrying the life of the unborn. both in the case of abortion regulation and ivf regulation, the rights of an embryo have prevailed in the discussion over a woman’s right to privacy or the right to health and reproductive choices.[footnoteref:142] in addition to omitting the role of woman as a rights bearer, the polish proposals limiting the availability of the procedure to married couples perpetuate the social stereotypes of motherhood as exclusively belonging to marriage. a single woman is not recognised as a subject of the reproductive freedom of becoming a mother, and especially not a single woman suffering from infertility problems or one choosing to become a mother through ivf. in linell secomb’s words, ‘improper pregnancies [are] excluded and only proper pregnancy permitted’.[footnoteref:143] [142: linell secomb observes a similar tendency of thinking about the woman and the embryo as if they belonged to different bodies in australian discourses. secomb observes that the once opaque and solid body of a pregnant woman has been transformed into a vessel containing the foetus. as a result woman’s status as a person has been replaced with medical care for a ‘future child’: ‘ivf: reproducing the ‘proper’ family of man’, 4 australian feminist law journal (1995), p. 20.] [143: ibid, p. 32.] in the politicised struggle the ‘proper’ pregnancy, moreover, has a strong link with polishness, which is understood as allegiance to catholicism.[footnoteref:144] the mother-pole[footnoteref:145] figure originating from the virgin mary cult represents the basis of the church’s conception of femininity. the woman, following the mother-pole ideal, in kwiatkowska’s words, is expected to ‘accept everything that life brings her’,[footnoteref:146] including infertility. the church’s struggle against ivf reinforces the mother-pole image. the equation of religion with nation and control over the means and methods of reproduction is aimed at reproducing not only ‘proper’ womanhood but also ‘proper’ polishness.[footnoteref:147] fletcher analyses an analogous mechanism in the context of irishness and the struggle for abortion. when the race cannot be a determining factor of national identity, religion often replaces it and becomes the core of the understanding of the nation. and when it so does, it often becomes a powerful tool in the hands of pro-natalists.[footnoteref:148] as mentioned above,[footnoteref:149] the family and reproduction become central for politicised religion and as yuval-davis’ emphasises, discourses on gender and nation intersect and become constructed by each other.[footnoteref:150] [144: obirek (2009), supra note 16.] [145: anna kwiatkowska, ‘gender stereotypes and beliefs about family violence in poland’ in: r.c.a. klein, multidisciplinary perspectives on family violence (london: routledge, 1998), pp. 129–152, p. 132.] [146: ibid.] [147: fletcher (2005), supra note 17, pp. 365-404.] [148: ibid.] [149: friedland (2001), supra note 18.] [150: nira yuval-davis, gender & nation (london: sage, 1997), p. 4.] this article is not suggesting that ivf is only beneficial to women and the realisation of their rights. feminist literature, even though diverse, has also been sceptical in its approach to assisted reproduction.[footnoteref:151] it is important, however, to observe that feminist and the church’s concerns remain at two opposite ends of the debate. whereas feminists challenge assisted reproduction on the grounds of its influence on strengthening rather than relieving social expectations of motherhood,[footnoteref:152] the church’s concerns centre on ensuring ‘proper’ motherhood. one should make no mistake that the church-supported ban on ivf was dictated by a concern for women’s health and the societal pressure on becoming a mother. not only is the mother treated as a dichotomous entity consisting of the mother and the foetus,[footnoteref:153] but the rights of the foetus are treated as overriding the rights of the mother in all circumstances. regulations such as those proposed by gowin, which limit the availability of the procedure to married couples and allow for the creation of only as many embryos as will be implanted to the womb, express in a milder way the same concept of a family and reproductive choices. in the polish context the proposals which allow only for medical procedures of questionable effectiveness and from the medical point of view imposing more strain on a woman’s body[footnoteref:154] illustrate the difference between the church’s and the feminist concerns. the church’s struggle is not for empowering women, but instead for unconditional protection of the unborn in accordance with the catholic doctrine of natural law and the maintenance of ‘proper’ polish families only. [151: see e.g. karen thorsby, when ivf fails: feminism, infertility and the negotiation of normality, (basingstoke: palgrave, 2004); michelle stanworth (ed.), reproductive technologies: gender, motherhood and medicine (cambridge: polity press, 1987); maureen mcneil, feminist cultural studies of science and technology (new york: routledge, 2007).] [152: secomb (1995), supra note 141, pp. 25-26.] [153: for more on the emergence of the two-patient model of pregnancy, see e.g. susan s. mattingly, ‘the maternal-fetal dyad: exploring the two-patient obsteric model’, 22 hastings center report (1992), quoted in: secomb (1995), supra note 141, p. 20.] [154: supra note 51, article 19.] b. universalising morality back to natural law in the era of diversity? while the liberal model of democracy has been extensively criticised for a variety of reasons by, for instance, multiculturalists[footnoteref:155] and post-modern feminists,[footnoteref:156] the concern of the polish legislators inspired by catholic ideology is rather different than that of greater inclusion and targeting the cultural blindness of liberalism or the religious blindness of secularism. it is not the postmodern recognition of diverse circumstances and the challenging of exclusionary dimensions of blanket equality. quite the contrary, the objective of the proposals is to bring back universally binding law which is directly of a religious nature. the point of departure is thus different than in liberalism. moral universalism is not based on blindness to differences hidden by the veil of neutrality or secularism. it is based on the denial of recognition of diversity and the availability of any other moral conception than the one affirmed. [155: see e.g. will kymlicka, multicultural citizenship: a liberal theory of minority rights (oxford: oxford university press, 1996); bikhu parekh, rethinking multiculturalism: cultural diversity and political theory (new york: macmillan press/palgrave, 2006).] [156: see e.g. seyla benhabib, judith butler, drucilla cornell, nancy fraser, feminist contentions: a philosophical exchange (new york: routledge, 1995); mary joe frug, postmodern legal feminism (new york: routledge, 1995); patricia cain, ‘feminism and the limits of equality’, 24 georgia law review (1990), pp. 803-847. ] the essence of this approach can be found in the postulates of theorists such as john finnis. finnis argues that the liberal approach advocating the adoption of a perspective of every person’s understanding of himself and the world is incoherent.[footnoteref:157] while listening to different perspectives is important, acting upon them may not be.[footnoteref:158] in finnis’ words, ‘no-one could intelligently call good the life of an individual who is enslaved to his subrational desires for gratification and thus, too, cut off from the reality’.[footnoteref:159] finnis finds the kantian distinction between ethics and morality to be a mistake.[footnoteref:160] in reference to women’s reproductive rights, finnis takes the example of abortion and the liberal defence of not penalising abortion. finnis refers to abortion as an example of the liberal mistake and instead constructs it as killing which ought to be penalised. he finds the liberal defence of not penalising abortion based on the notion of e.g. rawlsean reasonable consensus and lack of social agreement as to the moment of the beginning of life unconvincing.[footnoteref:161] he argues that legal reasoning greatly exaggerates the extent to which reason is able to determine the boundaries of the greater good and the lesser evil.[footnoteref:162] instead he would prefer a few absolute moral rights and duties to be respected as the basis for legal reasoning.[footnoteref:163] [157: john finnis, ‘natural law and the ethics of discourse’, 12 ratio juris: 4 (1999), pp. 354-373, 356-357.] [158: ibid.] [159: ibid, p. 361.] [160: ibid, p. 367.] [161: ibid, pp. 367-368.] [162: john finnis, ‘natural law and legal reasoning’, 38 cleveland state law review (1990), pp. 1-13, 13.] [163: ibid.] in the case of the catholic church, such absolute moral rights would be based on the doctrine of the church. and indeed, in similar fashion to finnis, the church sees abortion and ivf as the killing of the unborn.[footnoteref:164] the ban on in vitro or at least severe limitations on the procedure were intended to bring the moral teaching of the church into the realm of law, which would be applied equally to all citizens and residents of poland regardless of their moral, ethical or religious convictions. [164: see e.g. congregation for the doctrine of the faith (1987), supra note 5. ] this natural law approach refers also to human rights. however, it promotes a model in which the mother and the foetus compete for their rights. as secomb observes, ‘the law is treating the state of pregnancy as a relation between two human beings in which each “person” has a “right” to equal protection’.[footnoteref:165] this is also one of purposes of the church’s utilisation of the vocabulary of human rights. positioning the foetus as an equal bearer of rights makes a defence of the absolute moral rights in the meaning of natural law more convincing. [165: secomb (1995), supra note 141, p. 33.] i am far from following okin’s argument that all religious dogma and all cultural rights are a simple superstition that always aims at the control of women by men.[footnoteref:166] in the context of ivf, patricia jennings has illustrated, in her study concerning the responses of religious women to ivf, that religious attitudes may be diverse and the impact of religion on women’s choices different.[footnoteref:167] for some, religion in fact provides a spiritual platform enabling reconciliation with infertility.[footnoteref:168] due to these differences, both religiously and non-religiously motivated choices ought to be acknowledged in the best possible manner. but this is not the approach that the majority of the polish proposals presented. just as the seemingly neutral standards of secular legislation otherise religious believers, religiously inspired legislation which affects non-catholics does not respond to the requirements of the era of increasing pluralism. as shachar underlines, the increasingly pluralistic era requires more elegant solutions than simple ‘yes-no’ and ‘one size fits all’ legal standards in the area of women’s rights.[footnoteref:169] of course the discussion of the best relationship between women’s rights, religions and the obligations of a democratic state is ongoing,[footnoteref:170] similarly to the discussion of whether any state or any law can ever reach the objective of arriving at justice.[footnoteref:171] the religiously motivated polish proposals, however, such as those advocating for a complete ban on ivf, do not aim at the achievement of a fair balance between the interests of the state and the rights of the mother, the parents and the protection of the embryo. [166: susan moller okin, ‘is multiculturalism bad for women?’ in s.m. okin, j. cohen, m. howard, m. c. nussbaum (eds.), is multiculturalism bad for women? (new jersey: princeton university press, 1999), p. 13ff.] [167: patricia jennings, ‘“god had something else in mind”: family, religion and infertility’, 39 journal of contemporary ethnography (2010), pp. 215-235.] [168: ibid, pp. 232-233.] [169: ayelet shachar, multicultural jurisdictions – cultural differences and women’s rights (cambridge: cambridge university press, 2001), pp. 115–150.] [170: see e.g. susan moller okin, joshua cohen, matthew howard, and martha c. nussbaum (eds.), is multiculturalism bad for women? (new jersey: princeton university press, 1999).] [171: susanna lindroos-hovinheimo, ‘is law necessarily unjust?’, 6 nofo: journal of extreme legal positivism (2009), pp. 69-88.] vii. conclusion in the majority of the polish proposals aimed at banning and penalising ivf, the natural law conception of morality was based on catholic morality which was treated as synonymous with the morality of the nation. the central problem in the polish ivf legislative discourse proved to be monopolisation and politicisation of the discussion by only one religious community, which at the same time continues to be dominant in the country. at the same time this dominant religion displayed features characteristic of nationalised and politicised religions, in its focus on the reproduction of the nation. opinions released by the polish episcopate’s bodies were loaded with emotional wording, constantly emphasising words connected with what friedland called the ‘order of creation’. words such as ‘love’, ‘faith’ and ‘creation of life’ were reiterated throughout every opinion of the episcopate. furthermore, they projected an image of imminent threat to that order in frequent references to ‘eugenic practices’, ‘genetic modifications’ and ‘artificial creation of life’.[footnoteref:172] in the case of the polish ivf debate this wording was not only present in the discussion stimulated by the church, but was also transferred to the political and legal debate. justifications of legal drafts provided by mps such as piecha and wargocka included similar wording and analogical perceptions of a threat.[footnoteref:173] in the case of the polish catholic church this ‘unfortunate connection between politics and religion’, as obirek called it,[footnoteref:174] reinforced a one-sided view of history and society leaving little room for ‘the other’, including ‘the other’ within the church. [172: episcopate of poland (2010), supra note 61.] [173: see e.g. projekt ustawy o ochronie genomu ludzkiego i embrionu ludzkiego, [draft law on the protection of human genome and embryo], druk 3466, 18 june 2009, para. 6; projekt ustawy o zakazie zaplodnienia pozaustrojowego i manipulacji ludzka informacja genetyczna, [draft law on the ban of in vitro fertilization and manipulation of human genetic material], druk 3471, 17 february 2010, pp. 51–53, paras. 10–11.] [174: ibid.] the polish catholic church in the discussion on ivf displayed characteristics of a political rather than religious organisation in its striving for domination in the legal sphere. in this struggle the church went as far as to use a dubious method of blackmailing the conscience of the members of parliament in a similar manner to that in which political parties attempt to consolidate their vote. whereas the goal of the church remained religiously motivated and embedded in doctrine, the means of its achievement became strictly political and remote from the religious. i would therefore argue that the catholic church in poland in its battle for ivf legislation displayed characteristics of what could best be characterised as ‘politicised’ and ‘nationalised’ religion. such religious militancy was identified by parekh as characteristic of societies facing assimilation pressures. according to parekh, in such societies easily negotiable cultural demands take on a form of non-negotiable religious demands with religious leaders assuming undue authority and the consequent polarisation of society instead of the normal process of political deliberation.[footnoteref:175] interestingly enough, even though the political struggle of the polish catholic church seems to follow this pattern, catholicism is not a minority but a majority religion in poland. this politicisation may, instead of assimilation pressure, be a result of historical pressure.[footnoteref:176] as mentioned above, before 1989 the church was the bastion of the fight for democratisation and recognition of religious claims in the forcefully secularised society.[footnoteref:177] thus it has adopted the position of a persecuted minority struggling for recognition. [175: parekh (2006), supra note 154, p. 198.] [176: see e.g. marjane osa, ‘resistance, persistence and change: the transformation of the catholic church in poland’, 3 east european politics and societies: 2 (1989), pp. 268–299.] [177: sila-nowicki (1984–1986), supra note 22.] the failure to regulate matters of ivf is a sign of the strong polarisation of polish politics. as a matter of fact, due to its polarising potential, discussion on the issue was deliberately postponed before the autumn 2011 election.[footnoteref:178] while at the moment the failure to regulate may seem like a temporary victory of liberal feminism, the battle for the regulation of assisted reproduction in poland is still ongoing. even though the influence of the church appears to be on the wane and the result of the october 2011 election, in which the centrist po took a decisive victory over right-wing pis, appears to be a confirmation of this tendency,[footnoteref:179] it seems likely that the church has not said their last word on the matter. in fact, it appears that even greater militancy is to be expected as the new parliament begins the preparation of new drafts regulating this difficult legal area.[footnoteref:180] [178: ‘ustawa o in vitro? przed wyborami nie ma na co liczyć’ [ivf law before the elections?: unlikely], dziennik, 18 february 2011, < http://wiadomosci.dziennik.pl/polityka/artykuly/322789,ustawa-o-in-vitro-przed-wyborami-nie-ma-na-co-liczyc.html>, accessed on 1 march 2012.] [179: see e.g. john besemeres, ‘poland at the polls: a win for pragmatism’, inside story (swinburne institute: swinburne university of technology), 14 october 2011.] [180: katarzyna wiśniewska, ‘kościół o "hodowli" in vitro’ [church on in vitro ”husbandry”], wysokie obcasy, 2 january 2012, <http://wyborcza.pl/1,96165,10897910,kosciol_o__hodowli__in_vitro.html>, accessed on 1 march 2012.] a further and more detailed regulation, which will fairly balance the interests of the state with the interests of its citizens, is undoubtedly needed. but this cannot be achieved without proper democratic deliberation, including women and persons suffering from infertility as the legal subjects primarily concerned, as well as various fractions of society, including dissenting voices within the church. legal discussion, in order to fully grasp the depth of the problematic, ought to include all constitutional and social aspects of the regulation, in addition to catholic and non-catholic approaches to the status of an embryo. __________________________________________________________________________________ __________________________________________________________________________________ ruth fletcher working decertification _____________________________________________________________________________________________________ feminists@law vol 10, no 2 (2020) _____________________________________________________________________________________________________ working decertification, sensing reproduction ruth fletcher[footnoteref:1]* [1: * senior lecturer in medical law, queen mary university of london, uk. email r.fletcher@qmul.ac.uk] i have responded, perhaps a bit too slowly, to flag’s invitation to comment on ‘pulling the thread of decertification’ (cooper and emerton, this issue) by organizing my thoughts into three sensings, or felt steps in the engagement of the academic witness. in using the word ‘sensing’ i have cooper’s explanation of withdrawal (2019b: 328-51) in mind as i think about how the pull of decertification is sensed, but other academic and activist touches are also present in that use. for cooper, withdrawals, such as those of religious conservatives refusing to provide public services, are not ‘mere subtractions from what once was’ (2019b: 49). rather they are contacts whose acts of refusal acknowledge multiple sources of authority. sensing where the pulling might go as a kind of withdrawal is a way to bring a reproductive feminist critique to bear on making such multiple sources visible as sensings have ‘messy genealogies’ (fletcher, 2020: 127). they knot and hold together different sources of feminist knowledge, while arranging different elements of reactions that reason through their feeling. i use experiments, adaptations, and repetitions in the sensual labour of social reproduction to imagine where the pull could lead. the commitment to flexibility in the work/life balancing act (grabham, 2011; fraser, 2013; rottenberg, 2014) and the emerging international collection of women’s strikes (gago, 2018; arruzza, 2019) provide particular sites of contested social reproduction that help us think about what decertification might mean. but the form of this arrangement is also prompted by barbara baird’s ‘a meditation in eight parts’ (2019), a response given to the launch of emma russell’s new book, queer histories and the politics of policing (2019), which i had the pleasure of witnessing recently. you had to be there, but perhaps this piece can also archive and keep alive the energizing effect of listening to barbara’s feminism-in-action as she witnessed the value of russell’s book. baird’s weaving of an eight-part narrative out of a history of scholarship, activism, training, kinship, being an interviewee, receiving the book, and more, demonstrated joyously the multi-dimensionality of feminist academic form, a multi-dimensionality that holds feminism together while it regenerates. sensing one: the relief of a prefigurative approach in asking “what is the point of this book?” baird began her response with a nod to the alleged short attention span of the neoliberal figure of the millennial student. but she redirected that nod so that it became a connection with colleagues and a burst of intellectual questioning energy. thinking about ‘the point of’ this paper made me want to focus first on the method of prefiguration as a point of connection beyond the project and second on relief as a felt response to the paper. what is the point of taking a prefigurative approach to feminist concern over removing sex/gender as a legal status? this status is attributed to people by the state at birth, takes a binary female or male form, uses perceived sexual characteristics for criteria, and can only be changed by a formal legal process. what difference would it make if sex/gender was simply not certified by the state at birth, and became a matter of social negotiation rather than legal approval? the paper, and the project, build on theoretical and methodological approaches that cooper developed in everyday utopias (2013), where the oscillation between imagining and actualizing the ‘as if’ keeps the utopian grounded. the prefiguration of everyday utopias shows how collective projects, from feminist bathhouses to local exchanges, take politics down a different path to the ones oriented by questions of identity or totality. instead the everyday utopian focuses on the practices, which work on gender and other axes of social difference indirectly, by imagining and actualizing a set of activities which generate and sustain, as they respond to depletion and exhaustion. this is the first way then that this paper matters; it takes an unusual approach to a possible question of legal reform, namely whether the state should stop legally constituting gender as a status acquired at birth and marked by the sex one is perceived to have. the paper says, what if scholars sidestepped thinking about these issues from an advocacy or reform-oriented perspective, and instead considered them from a prefigurative perspective? why not claim the freedom to think what decertification might mean without limiting the possibilities to the practicable before we even start? in this era when feminist practices of public engagement and impact have been repurposed by the conduct of conduct in universities, it is a refreshing relief to find an intellectual space which makes utopian imaginings the heart of the funded project, with all the tensions and contradictions that come with that. sutherland and vischmidt (2015) have cautioned recently, when evaluating social reproduction theory (with a particular focus on vogel and federici), that prefiguration turns too quickly into moral prescription and romanticisation as women’s ways of generating a reproductive commons are valorized, and reproduction is re-naturalized. the prefiguration that is practised in this project however, avoids that possibility by generating its own experiment, and by learning from other experiments along the way. sensing two: the commitment to move beyond a very binary drama by taking others’ concerns seriously when it comes to the substance of the paper, cooper and emerton contribute to the development of the flag project, by taking feminist worries about decertification seriously and moving beyond what is being currently conducted in the uk as a ‘very binary drama’ (cooper, 2019a). to do this, to worry through why feminism might be invested in gender as a status that is attributed at birth, they adopt a three dimensional approach to gender, and think about gender as the experience of social harm (e.g. gendered violence), as a concept or an abstract way of understanding how gender works in society (e.g. identity, but also system, performance, regime), and as a strategy or means of remedying gender-based harms. the paper reports that their 80 informants focused particularly on worries that women-only spaces, affirmative action, and the collection of gender-based statistics could be jeopardized or made more difficult by decertification. this seems to mean that the informants focused on concerns about the strategy dimension of gender, and the possibility that the social harms of gender would not be eroded or challenged, and might even expand, if these strategies were weakened. the paper works on these concerns about gender, drawing out their significance in terms of the three-dimensional approach (with each dimension in turn having a number of aspects). in effect, the paper uses other non-identity based ways of conceptualizing gender to question whether decertification might bring with it, not the abolition of sex/gender as a social practice, but the enlivening of other actually existing ways of thinking and living through gender. one gendered harm that gets a bit blurry and recedes into the background, given this paper’s focus on the possible harms of decertification, is the gendered harm of certification. what do feminism and critical gender-oriented analysis lose as a result of certification? what are the different ways in which certification produces harms for people or inhibits the everyday reproduction of life on terms that are potentially pleasurable and at least sustainable? if certification is a fixing of status that gets in the way of making life better, then that is likely enough of a gendered harm to trouble feminism. in those moments when certification’s harms and obstructions appear in the paper, they come forward as the worry over the damaging exposure to the scrutiny and enforcement of gender categories. giles (2019) writes about this damaging exposure and the labour of the trans community in mitigating and challenging it. in reflecting on the work of gender transition as social reproduction, they make visible the work that members of the trans community do for each other, and for the world at large, in making transition liveable. this work of transition includes the education of medical staff, the caring for those taking hormones or having surgery, and the soothing of anxiety. but more than that they talk about how transition is not a change from one gender to another, but engages “with dubious agency and fraught embodiment the ongoing work of being gendered”. this kind of materialist displacement of the liberal as the paradigm through which to understand self-realisation joins up with feminist critical race work on the profound acts of labour that sometimes pass as ‘mere’ survival strategies (hill collins, 2000; emejulu and sobande, 2019). echoing ‘wages for housework’ giles demands ‘wages for transition’ for the work of being trans and absorbing “the hate and shame of our antagonists… the sexual anxiety and gender horror of a society sickened by its own creations”. understanding and representing trans living as one kind of non-binary gendered life and a matter of social reproduction is itself generative in moving beyond the normal/exceptional binary of gender distinctions to identify the different kinds of labour required by being in the world. sensing three: the energy to reclaim and recuperate flexibility on feminist terms, or, learning from women’s strikes in pressing on the need for gathering together a collection of labours and goods, which move beyond the reproduction of stereotypes as evidence of lived gender, i want to pick up on flexibility as a generative but problematic policy which might help us think about the good of de/certification. flexibility is a legal norm which has a significant feminist legacy given its association with the claim that the paid workplace needed, and needs, to be more flexible in accommodating the unpaid work of care. flexibility measures have included job-shares, working from home, and irregular hours. but flexibility is also a concept and a practice, which has become tainted by its neoliberal mobilisation (rottenberg, 2014; fraser, 2013) and constitution as a kind of adaptation to working conditions which stretches women to breaking point (grabham, 2011; 2016: 158-163). for fraser, neoliberal articulations of flexibility trouble feminist attachments and might entail the abandoning of flexibility as a legal requirement of a workplace. moreover, she thinks that feminism needs to take some of the blame for the harmful effects which flexibility policies have had on gendered and poor workforces. we might say that this kind of questioning sees flexibility as a feminist good, which has been co-opted and compromised beyond repair. as a feminist good, flexibility emerges out of a concern for valuing social reproduction, and conjures up legal requirements, adaptations, and even potential transformations of workplaces as they interact with whole lives. fraser’s critique is that some of those rules and adaptations have ended up being used in ways which work against many workers. but that does not mean that there wasn’t a moment where those rules and adaptations provided feminist relief. moreover, the critique also does not negate the aspiration to transform work, which has also been part of flexibility’s legacy, in those moments when communal childcare became the model to be reproduced, even if that has not been realized. in other words, the attachment to flexibility was a gendered norm and practice produced at least partially by feminism, which moved across generative, adaptive, and transformative instances in particular cultural and historical contexts. but ‘certification’ does not seem to me to be a feminist good in the same way. the attachment to legal gender as birth status was not produced by feminism. rather this feminist attachment to certification seems to be a by-product of engagement with a patriarchal order. this engagement has produced creative strategies and a repository of responses, as the authors acknowledge. so yes, feminism needs to be careful and thoughtful about what might take the place of legal gender. but treating legal birth status as if it was the product of feminist theoretical and practical innovation values an adaptation as if it was a feminist innovation with transformative potential. surely feminism can value the adaptations that make uncomfortable worlds more liveable (e.g. fletcher et al, 2017) without identifying adaptations as transformations. women’s strikes are one set of feminist activities which are currently enacting a pull on flexibility and its place in the struggle over how to value social reproduction (gago, 2018; kubisa and rakowska, 2019). such strikes encompass withdrawal of paid labour but also a refusal to perform unpaid care labour, usually alongside collective acts of communication such as public protest and acts of solidarity such as the wearing of indicia of support (e.g. the colour black in the case of the polish strikes). in this way they combine different practices on the way to gender transformation and connect up micro level actions which might seem more adaptive or individualistic if they were left on their own. since the polish black protests in 2016, and remembering the icelandic women’s strike of 1975, women’s strikes have been taken up by feminists around the world, most notably in argentina and italy, but also in ireland, the uk and the us, as they make gendered violence and reproductive discipline visible, accountable, and changeable (arruzza, 2019; enright, 2017). for barbagallo (2018; see also barbagallo and federici, 2012), it is the very impossibility of the women’s strike as a ‘social strike’ that makes it so necessary. the withdrawal of everyday caring labour makes this strike distinctive in taking it away from the site of union organising, as feminists draw attention to the necessity of this labour for the continuation of the racial, gendered, capitalist world. for many, this withdrawal is impossible because it would mean the neglect of vulnerable loved ones. this impossibility is generative, even as it is also exploitative, as the strikes respond by welcoming the kinds of actions that may be possible for people, such as wearing a sign of participation and solidarity. on their own, such micro-actions might seem individualist, frivolous even. but as evidence of connection with those who are withdrawing from paid and unpaid work, they become part of something bigger, something with a multidimensional form and a messy genealogy. these collective activities organise in women’s name, but combine a number of different practices as they reinvent the strike, and intervene in the social reproduction of gender. they take the name ‘women’ as those who make and remake feminism, not as those who owe their status to the state. references arruzza, c. 2019. from social reproduction feminism to the women’s strike, in t. bhattacharya ed. social reproduction theory. london: pluto 192-196. baird, b. 2019. a meditation in 8 parts. speech at the launch of emma russell’s queer histories of the politics of policing. centre for health, law and society, la trobe university, melbourne, 4 november 2019 (on file with author). barbagallo, c. 2018. women’s strike: it is impossible that is why it is necessary. 14 january 2018 https://womenstrike.org.uk/2018/01/14/the-impossibility-of-the-international-womens-strike-is-exactly-why-its-so-necessary/ barbagallo, c. and s. federici. 2012. introduction to care work and the commons. the commoner 15 https://libcom.org/library/commoner-15-care-work-commons cooper, d. 2019a. a very binary drama. feminists@law 9(1) https://journals.kent.ac.uk/index.php/feministsatlaw/article/view/655 cooper, d. 2019b. feeling like a state. durham: duke university press. cooper, d. 2013. everyday utopias. durham: duke university press. emejulu, a. and f. sobande eds. 2019. to exist is to resist. london: pluto. enright, m. 2017. #strike4repeal: ireland’s women’s strike. critical legal thinking 8 march https://criticallegalthinking.com/2017/03/08/strike4repeal-irelands-womens-strike/ fletcher, r. 2020. cheeky witnessing. feminist review 124: 124-141. fletcher, r. et al. 2017. wench tactics? feminist legal studies 25(1): 1-23 https://link.springer.com/article/10.1007/s10691-017-9355-y fraser, n. 2013. fortunes of feminism. london: verso. gago. v. 2018. #westrike: notes towards a political theory of the feminist strike. south atlantic quarterly 117(3): 660-670. giles, h.j. 2019. wages for transition. medium 16 december https://medium.com/@harrygiles/wages-for-transition-dce2b246b9b7 grabham, e. 2016. brewing legal times. toronto: university of toronto press. grabham, e. 2011. doing things with time: flexibility, adaptability and elasticity in uk equality cases. canadian journal of law and society 26(3): 485–508 hill collins, p. 2000. black feminist thought: knowledge, consciousness, and the politics of empowerment. 2nd edition, new york: routledge kubisa j. and k. rakowska. 2018. was it a strike? notes on the polish women’s strike and the strike of persons with disabilities. praktyka teoretyczna 30(4): 15-50 https://pressto.amu.edu.pl/index.php/prt/article/view/19007 rottenberg, c. 2014. the rise of neoliberal feminism. cultural studies 28(3): 418-437 russell, e. 2019. queer histories and the politics of policing. new york: routledge. sutherland, z. and m. vischmidt. 2015. the soft disappointment of prefiguration: a critique of social reproduction theories. paper presented to the society of social and political thought conference, university of sussex, 15 june. _____________________________________________________________________________________________________ 2 _____________________________________________________________________________________________________ 1 what’s feminist about open access craig, turcotte and coombe what’s feminist about open access? ________________________________________________________________________ feminists@law vol 1, no 1 (2011) ________________________________________________________________________ what’s feminist about open access? a relational approach to copyright in the academy carys j. craig* and joseph f. turcotte,** with rosemary j. coombe*** abstract in a context of great technological and social change, existing intellectual property regimes such as copyright must contend with parallel forms of ownership and distribution. proponents of open access, for example, question and undermine the paradigm of exclusivity central to traditional copyright law, thereby fundamentally challenging its ownership structures and the publishing practices these support. in this essay, we attempt to show what it is about the open access endeavour that resonates with a feminist theory of law and society—in other words, we consider what is “feminist” about open access. first, we provide an overview of a relational feminist critique of traditional copyright law and the assumptions of possessive individualism that pervade it. we then offer a brief description of the open access movement and the way in which it reflects or responds to this criticism. in doing so, we discover vital synergies between this branch of feminist legal theory and the open access movement. ultimately, we hope to underscore the importance of an open access policy for legal journals such as this one, whose mission is to support, advance and disseminate a feminist perspective that challenges the prevailing hegemony within traditional legal scholarship. we conclude by offering ways in which this journal can help draw out the synergies between feminist criticism and the open access movement. 1. introduction the ownership and control of information resources is one of the most important forms of power in contemporary society. the ability to access, appropriate and disseminate a host of cultural, technological and social goods is enhanced in the digital realm, calling into question the traditional modes of practice and content controls addressed by intellectual property laws. digital technologies provide us with the potential to alter and subvert power structures by changing the ways in which we access, engage with, and participate in the creation of these resources. by the same token, intellectual property laws have the capacity to shore up existing power structures and limit creative practices by entrenching conventional proprietary norms in digital environments. in particular, copyright law, which attaches to original literary, dramatic, musical and artistic expression, grants authors and subsequent owners the power to control the reproduction, publication and performance of their works. through these powers of control, copyright limits flows of information, regulates the production and exchange of meaning, and shapes social relations of communication. in a technological environment where works can be created, shared, accessed and transformed more easily and efficiently than ever before, the copyright system is unfortunately employed to reinforce the norms of the analog world rather than to maximize the potential of the digital revolution. private ownership, exclusion and pay-per-use practices obstruct the capacity of network technologies to create an accessible, democratic and vital space in which citizens can freely participate. as such, the way that we traditionally think about copyright and the role that it serves in our cultural landscape is in desperate need of re-imagination. changing technological and social situations necessitate intellectual property reforms. government and corporate reluctance to contemplate and implement legislative changes that address the growing digital shift has thus resulted in the emergence of various movements that challenge the dominant intellectual property paradigm. the open access movement is one example of how copyright’s traditional ownership structures, and the publishing practices they support, are being challenged from the ground up. proponents of open access—the origins of which lie in the open source and free software movements—challenge the paradigm of exclusivity central to traditional copyright law. while this “openness” is typically achieved through the use of copyright constructs, the terms on which access and use of protected content are permitted essentially create something like a quasi-public domain; open access uses the tools of copyright to carve out a legal space free for public entry. the rapid spread of open access practices promises a radical change to the way in which knowledge and information is shared and disseminated in the digital world. in this essay, we will attempt to show what it is about this open access endeavour that resonates with a feminist theory of law and society—in other words, we consider what is “feminist” about open access. to do so we address a broadly conceived notion of feminist legal theory to draw out parallels between this form of legal criticism and the open access paradigm. feminist legal theory and open access movements are approached generally in order to highlight their points of intersection, which is not to deny the more nuanced dimensions of these critical movements. specifically, we focus on relational conceptions of feminism and counter theories of ownership in open access theory and practice. in section 2, we begin by laying out a feminist critique of traditional copyright law and the assumptions of possessive individualism that pervade it. in section 3, we proceed to examine the open access movement and the way in which it reflects or responds to the feminist critique of copyright. we conclude, in section 4, with some thoughts about the synergies between the feminist legal theory movement and the open access movement. ultimately, we hope to underscore the importance of an open access policy for legal journals such as this one, whose mission is to support, advance and disseminate a feminist perspective that challenges the prevailing hegemony within traditional legal scholarship. 2. a feminist critique of copyright law notwithstanding the intangible, dialogic and communicative nature of human expression, its categorization as intellectual property through the vehicle of copyright—legitimated by a particular understanding of authorship—encourages us to conceptualize it as merely another form of private property. viewed through a proprietary lens, an author’s intellectual expression is an object that is owned like any other. in the context of a market economy, it is simply a commodity to be exchanged and exploited in the marketplace. nonetheless, the language of “ownership,” “property,” and “commodity” obfuscates the nature of copyright’s subject matter, and cloaks the social and cultural conditions of its production and the implications of its protection. copyright law fundamentally enables controls to be exercised over expression and thus manipulates fields of communication—the law protects the author’s voice by silencing the infringer’s. copyright is built around certain conceptions of the self, society and worth, which translate, through law, into norms about who can speak, who can listen, what can be said, and with what force of authority. regarded in this way, it is difficult to believe that the copyright system has remained as stubbornly immune to feminist critique as it has. in this section, we will briefly explore the philosophical and political underpinnings of copyright law and present a feminist counter-theory of authorship that challenges these underpinnings and their normative implications. 2.1 the possessive individualism of copyright norms the defining concepts of intellectual property generally—and those of copyright in particular—are premised upon liberal and neo-liberal assumptions. at the core of copyright’s functionality are concepts of private rights, ownership, exclusion and individualism. central to copyright’s justifications are concepts of individual entitlement or desert, on the one hand, and economic rationality and self-interest on the other. within this model, authors as owners are individuated personalities with exclusive claims to fully control their intellectual works; these works are understood to be the original, stable and proprietary results of authors’ independent efforts from which the public may be justly excluded. it is important to emphasize that in spite of its apparent naturalness in the modern age, the modern author is a relatively recent invention: the idea of an author as a maker of an original text would have been alien to literary thought in the classical period. marilyn randall has examined the “shift from a poetics of imitation to a valorization of originality” that occurred in the eighteenth century, such that aspirations of imagination, novelty, creativity, and originality came to dominate the aesthetics of the romantic period. she observes that the distinction between imitation and originality was intricately tied to the perceived nature of man in the sense that true authorship was believed to represent the essence of human individuality. the human agent, as author, could not copy without sacrificing his authenticity and obscuring his intrinsic worth. imitation was disparaged as evidence of a lesser state of human civilization and development. as the institution of copyright emerged in the eighteenth century, it was augmented and given vitality by the general philosophical discourse of the time, wherein concepts of authorship were intimately associated with the “individual” and “property,” and enmeshed with the “vast complex of interdependent factors denoted by the term ‘individualism.’” the issues at stake in the literary-property debates of the time (which disputed the existence, nature, and duration of authorial entitlement) went to the core of the philosophical underpinnings of liberal thought, or what c.b. macpherson identifies as “possessive individualism.” during this period, the modern author-as-originator became a proprietor, and his product became a “special kind of commodity.” foucault famously described the emergence of this notion of “author” as “the privileged moment of individualization in the history of ideas, knowledge, literature, philosophy and the sciences.” through this process of individualization, the “author” acquired “a role quite characteristic of our era of industrial and bourgeois society, of individualism and private property.” the individuality and originality of authorship in its modern form therefore established a simple route towards individual ownership (through labour and appropriation) and the propertization of creative achievement. the valorization of the individual author and his originality, and the resulting denigration of imitation that developed throughout the nineteenth century, is axiomatic in modern copyright law. the author is defined by—and rewarded for—the originality of his creation, with the essence of copyright’s standard of originality being independent production. the original work is the author’s property by virtue of his labour and/or creativity. and, of course, the unworthy imitator is copyright’s infringer, cast in the role of trespasser or thief. as shelley wright argues: “the existing definition of copyright…presupposes that individuals live in isolation from one another, that the individual is an autonomous unit who creates artistic works and sells them, or permits their sale by others, while ignoring the individual’s relationship with others within her community, family, ethnic group, religion—the very social relations out of which and for the benefit of whom the individual’s limited monopoly rights are supposed to exist.” because “authorship shapes the character of copyright law,” our persistent attachment to the vision of authorship as an independent process of original creation has significant implications for copyright policy. although copyright readily extends protection to the banal and commonplace—works that are undoubtedly far from the level of romantic inspiration—these uninspired works are nevertheless over-protected, and “original authorship” is disproportionately valued against other forms of cultural expression and creative play. indeed, the less copyright’s subject-matter looks like the creation of a romantic author, the more powerful the role of romantic ideology becomes in seeking to maintain the moral divide between the author and the copier-appropriator (or “pirate”)” and in shoring up the privileges and authority accorded to the former. the authorship myth that animates copyright discourse supports calls for wide protection and generates a staggering complacency around the expanding domain of intellectual property and the corporate ownership that dominates the intellectual realm. the result is a copyright model that forces all intellectual production into doctrinal categories shaped by individualistic assumptions about the authorial ideal, producing simplifying dichotomies such as creation/reproduction, author/user, labourer/free-rider. this moral divide favours originality over dialogue, individuality over relationship, and monologue over communication. 2.2 a feminist counter-theory of authorship in 1968, roland barthes famously declared the death of the author. he is regarded as one of the progenitors of post-structuralist literary theory which fundamentally shook “the confidence placed in individual agency and control over discourse that involves, inevitably, a belief in the possibility of creative originality.” indeed, the contemporary demystification of authorship insists upon the “practical impossibility” of independent creation and declares that all texts are necessarily reproductions of other texts; it is in the nature of expression and cultural development that the new builds upon the old. regarded in this light, the act of writing involves not origination, but rather the adaptation, derivation, translation and recombination of “raw material” taken from previously existing texts. in jessica litman’s words, authorship is essentially “a process of adapting, transforming, and recombining what is already ‘out there’ in some other form.” what we hail as “creativity” is really the result of “a combination of absorption, astigmatism, and amnesia.” in barthes’ vision, “[t]he text is a tissue of quotations drawn from the innumerable centres of culture… [t]he writer can only imitate a gesture that is always anterior, never original. his only power is to mix writings, to counter the ones with the others, in such a way as never to rest on any one of them.” it is important, at this juncture, to underscore the relationship between conceptions of authorship and conceptions of selfhood per se. whereas copyright’s original author-owner reflects enlightenment ideals of individuation, detachment, and unity, the competing post-structuralist version of authorship coheres with a vision of the individual as socially situated, as constituted by community, culture, and society. rather than meaning created out of nothing, the author’s expression is the result of the complex variety of influences that have shaped her, and its message is essentially fluid, derived only from its interaction with other texts and discourses. described in these terms, the tension between competing constructions of authorship mirrors a tension that has been a critical subject of feminist scholarship in political and social theory: the tension between the individual, pre-social self of liberal theory, and the socially constituted, always-already encumbered self posited by (most notably communitarian) critiques of liberalism. feminist political and legal theory has struggled to find a conception of the self that acknowledges connectivity without precluding individual autonomy, identity or voice. in our view, “relational feminism” offers the clearest route towards resolving the tension between liberalism’s individualism and communitarianism’s social constructionism. for relational feminists, the key to renegotiating our gendered identities and the terms of our subjectivity lies in the very network of relations and cultural narratives that are commonly perceived as a threat to our subjectivity. the starting point for a relational account of the self is therefore “an attention both to the individuality of human beings and to their essentially social nature.” the aspirational society is one that structures relations in such a way that communities and relationships foster, rather than undermine, self-worth and genuine autonomy. autonomy itself is understood in relational terms; if we take as a starting point the intrinsic sociality of human beings, then “[i]t is relationships, from child-parent, to student-teacher, to client-state, as well as patterns of relationship among citizens, that make actualization of the human potential for autonomy possible.” the notion of the relational self also challenges the liberal conception of the autonomous individual as an independent bearer of rights wielded against others and the state. in liberal thought, human relations are cast in terms of clashing rights and interests. in contrast, from a relational perspective, rights do not simply mediate the boundaries of individual self-interest; they encapsulate collective choices about the values that members of a society hold dear. debates about the substance or scope of rights should not begin and end with the claim or denial of right (which only obfuscates the underlying issues) but should instead focus upon the kinds of human relationships the right would structure, and the values that would be furthered by its guarantee. finally, it is interesting to note the significance accorded to dialogue in relational feminism’s conception of selfhood. this is perhaps captured best in the work of elizabeth frazer and nicola lacey, who appeal to the concept of the “dialogic communitarian.” taking as their starting point a theory of the “relational self,” frazer and lacey argue that a commitment to dialogue is essential for the ongoing scrutiny and negotiation of power relations within communities and social structures. this necessitates both an awareness of the power inherent in discourse, and attention to the perceived value and audibility of members’ voices. substantive access to debate and the capacity to be heard are central to the dialogic communitarian ideal. according to frazer and lacey, subjectivity requires discursive engagement: a capacity to hear the claims of others, and to articulate one’s own; hence feminists’ appeal to the practice of “consciousness-raising” and the creation of “narrative.” at the foundation of consciousness-raising, narrative creation, and dialogic communitarianism more broadly, is the understanding that identity and subjectivity are constituted by dynamic interaction with others in a process of dialogic exchange, both interpersonal and intrapersonal. so what can feminism’s “relational self” tell us about the author-self at the centre of copyright law? far from the individualized, self-determining author of modern copyright law, the “relational author” is always already situated within, and constituted by, the communities in which she exists, and the texts and discourses with which she is surrounded, which also shape her consciousness and expressive activities. far from creating independently and choosing relationships through the vehicle of copyright qua private property, the author necessarily creates from within a network of social relations: she is not individualisable, and her works of authorship cannot be understood in isolation. however, this does not mean that author and authorship are illusory; a relational theory of authorship recognizes the social dimension of the author, but also her duality. the author-self encapsulates both our connectedness and our capacity for critical reflection. in the processes of authorship, the texts, discourses, experiences, and relationships that constitute the author are combined, interpreted, reinterpreted and retold. the resulting expression is not original in the sense of having been created ex nihilo; but it is nonetheless the author’s creation in the only sense that matters: “[t]he activity of narrative construction—of interpretation and reinterpretation—begins, of course, from the materials at hand. that is, a person works with her own experiences and the stories, values, and concepts that are available to her in whatever culture(s) she inhabits. these materials are always, and from the beginning, both given and created. they are given in that they are shaped by forces beyond any individual’s control; they are created in that each new repetition of such cultural and personal artefacts is always a reinterpretation rather than merely a replication.” a relational theory of the author has implications for the nature of copyright. in the relational model, copyright cannot play the role attributed to traditional property rights in a liberal model. the author’s right is not reducible to an individual entitlement that limits the actions of others. rather, copyright must be understood in relation terms: it structures relationships between authors and users, allocating powers and responsibilities amongst members of cultural communities, and establishing the rules of communication and exchange. the importance of copyright lies in its capacity to structure relations of communication, and to establish the power dynamics that will shape these relations. its purpose is to maximize communication and exchange by putting in place incentives for creativity and the dissemination of intellectual works. it is therefore imperative that copyright is not regarded as just another brick in “the wall (of rights) erected between the individual and those around him.” there is no prior, transcendent entitlement here; there is only a choice to be made about the kind of intellectual creativity and exchange that we want to see in our society, and the relations of communication that are likely to foster it. the lessons of relational feminism reveal that the copyright system, as the result of a collective choice, always requires evaluation and re-evaluation. in particular, we must be attentive to the relationships of power and responsibility that it generates, and ask ourselves whether those relationships will foster creative activities that we mean to encourage. by regarding copyright as relational, we open the door to debate about its subject matter, its scope, its goals, and its consequences. at this moment in history, where traditional copyright concepts are critically challenged by new technologies and the activities they facilitate, the future direction of copyright depends upon our readiness to debate these issues. finally, a relational feminist counter-theory of authorship illuminates the dialogic nature of creative expression. when the author creates original expression in the form of literature, art, drama or music, she is engaged in an intrapersonal dialogue (developing a form of personal narrative by drawing upon experience, situation, and critical reflection) and an interpersonal dialogue (drawing upon the texts and discourses around her to communicate meaning to an anticipated audience). by understanding authorship as a dialogic process rather than a single unitary act, we can recognize facets of authorship that copyright law has conventionally neglected or undermined. expressive works must be appreciated in their social context, and the author’s acquired rights must be examined in relation to her audience and other members of her communicative communities. it follows that the rights we establish over intellectual expression must leave room for others to engage in a similar communicative process; when others enter the cultural conversation they must be free to acknowledge, respond to, and build upon the contribution previous authors author have made. in this way, a dialogic theory of authorship provides insight into the necessary limitations of copyright’s protective sphere if it is to facilitate contributions to the cultural conversation. in sum, a relational feminist critique of traditional copyright challenges the traditional, individualized account of the author and her work; it therefore recognizes the relationships that copyright constructs, and appreciates the contribution to cultural dialogue that authorship represents. these lessons culminate to underscore one essential proposition: when the law intervenes to manipulate the creation and dissemination of expression for the benefit of society, it must recognize and value the derivative, collaborative and communicative nature of creativity. to the extent that copyright’s traditional proprietary structures preclude or obstruct the capacity of citizens to access, engage with and respond to cultural resources—or, more broadly, to experience their cultural landscape—these structures should be challenged, reconfigured or rejected. 3. open access and the feminist perspective we have seen, in part 2, the way in which a relational feminist perspective can problematize and reconceptualize the central components of our copyright system, with the potential to challenge and change the existing intellectual property paradigm. turning our attention to the open access movement, we can now begin to explore the synergies between this feminist perspective and the vision and aspirations that underlie the open access movement. this will require, first, an introduction to the concept of open access and its developing role in the internet era, and second, an insight into the philosophy and guiding principles that inform it. 3.1 the internet, open access and recursive publics it need hardly be said that the birth of the internet has radically resculpted our cultural landscape. accompanying the development of the internet is a long history of rhetoric and support for open access. following the end of the cold war, the precursor to the internet, arpanet, moved away from its primarily military orientation and was opened up to universities and researchers. the open and collaborative role of the internet in providing access and information to groups separated by distance and disparate resources thus emerged as a central component of the ethos that dominated online interaction. this rhetoric crested in the 1990s with the belief that this technology would create, as james w. carey describes it, “[a]n enduring peace, an unprecedented rise in prosperity, an era of comfort, convenience and ease and a political world without politics or politicians—these were the hopes that cultivated a wave of belief in the magically transforming power of technology.” in this sense, recent attempts to enrich and expand the open access of the internet can be viewed in the context of an ongoing effort to contribute to intellectual activity and the development of broad communities of knowledge, ultimately in pursuit of this techno-utopian ideal despite this aspirational ethos, the commercialization of the internet under the auspices of neo-liberal capitalism has challenged the freedoms that the internet’s supporters envisioned, pointing to the pragmatic evolution that carey describes. alongside its transformative function, the internet also entrenched, exacerbated and established other limitations: “[a]s one set of borders, one set of social structures is taken down, another set of borders is erected”. the political, social and economic forces that contributed to the development of the internet have, inevitably, gone a long way towards defining its contemporary (and some may say counter-utopian) reality. intellectual property rights, and copyright in particular, have limited the revolutionary ethos that the internet was imagined to usher into communicative relations. users of the internet who attempt to interact with cultural forms and information find that their access and use are controlled by the exercise of intellectual property rights held largely by corporations, who increasingly restrict what can be done with their intellectual property and/or charge for its use. open access movements can be regarded as critical responses to the economic imperative that drives the commercialized internet. projects that oppose the ownership and control paradigms that provide power to those who hold proprietary interests over online information help to subvert the capitalist logic of neo-liberalism and offer points of departure for developing alternative conceptions and understandings of digitized communications. collaboration and the sharing of information are central tenets of the open access movement and relate directly to the relational nature of the author posited by feminist criticisms. the possibility of realizing these social values is often obscured by the technical nature of the internet as well as pervasive legal and normative discourses that privilege individuated authors, albeit usually in the form of faceless corporations. the relational nature of the internet has to be continually reasserted in the face of these norms. in a study of early “open source” software designers, christopher kelty describes their shared commitment to the development of freely available digital code that would enable the internet to continue to function as a public place for deliberation—one that could not be controlled by virtue of private ownership of intellectual property in software. these designers believed that the internet had to be kept open to new forms of evolution, and that this could only happen if those who contributed works—such as software and its underlying code—to its development also ensured that their contributions would remain free for further developments by others similarly committed to maintaining the internet as a public space. not only does this view of the internet capture the potential of network technologies to further dialogic development and innovation; it also illuminates the ways in which various actors work in varying relationships to produce new creations more generally. indeed, it exemplifies the way in which we use language, maintain communities, and socially reproduce ourselves as a species. the history of the internet and the world wide web demonstrates a tension between open, collaborative forms of development and closed, proprietary systems. these competing notions of the internet—open versus controlled—have contributed to a vibrant debate about the future of online interaction. in december 2001 the open society institute formulated the basic tenets of online open access culture with respect to published literature: “by ‘open access’ … we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. the only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.” the open access formulations developed by the open society institute serve as a counterpoint to the proprietary internet, which is based upon intellectual property norms that privilege individuated conceptions of authorship and ownership. these norms have operated to restrict the development of emerging online socialities. as ann bartow points out, they also hinder the development and application of knowledge: “from a practical standpoint, patent law advances the state of ‘open source’ knowledge very slowly. by the time an invention reaches the public domain by way of patent expiration, the state of the art technology in the pertinent field has made two decades’ worth of advancements and the knowledge now freely available is likely to be obsolete and have little, if any, practical application value (possibly excepting pharmaceutical products, or adoption in geographic areas with less technological development).” open access principles seek instead to maintain and contribute to a vibrant public sphere based upon public domain, accessible and/or re-useable materials, thereby leveraging the enormous possibilities for innovation and exchange that online, networked communication technologies afford. the internet is very much a public space—individuals and groups come together to develop the operating structures, social mechanisms, and legal and technical infrastructure that facilitate its existence and operation. christopher kelty describes the internet that the early open source community sought to forge as a recursive public, “a particular form of social imaginary through which this group imagines in common the means of their own association, the material forms this imagination takes, and what place it has in the contemporary development of the internet.” by relying upon the modes and tactics of a recursive public, open access movements seek to assert the primacy of collaborative forms of communication and creativity. in doing so, they mirror the concerns of the relational feminist perspective of individuality discussed in part 2 of this article—and present new opportunities for creative endeavour and development that are based upon collaborative (or open) techniques. open source, for example, “is distinguished from other forms and practices of software production for many reasons, but most interestingly because its practitioners discuss it not simply in technical terms, but as a philosophy, a politics, a critique, a social movement, a revolution, or even a ‘way of life.’” this is not to say that movements committed to openness necessarily operate outside of the dominant social, legal and cultural structures that they are working to critique: “none of them are anti-commercial, nor even anti-intellectual property— indeed, they all rely on the existence of intellectual property to create and maintain the ‘commons’ that are an inevitable part of their names, even as they occupy a position of challenge or resistance to the dominant forms of intellectual property in circulation today.” such movements are better seen as creating forms of ‘counterpublics’ that work within and against those forces that are perceived as oppressive. recognizing that the often presumed openness of the internet is not inevitable, but rather is increasingly restrained by corporate, legal and or government interventions, movements such as floss and the creative commons (for further examples) seek to use the powers that individuals have, even over their own intellectual properties, to create spaces where the ideal open ethos of the internet can be actualized. 3.2 emerging open access practices in academic publishing due to their relationship with public institutions and broader communities of knowledge, scholarly journals offer a place where the ideals and goals of the open access movement may be fruitfully deployed. such journals present and publish research with the objective of “making the work accessible, publicizing the work, and endorsing the work as trustworthy” to the ultimate end of serving a greater good, namely the creation, dissemination and circulation of knowledge and the advancement of human understanding. such lofty aspirations are impaired, however, by an economic system that seeks to maximize the value of information through the creation and promotion of its scarcity. instead of free circulation, traditional journal publishers distribute and manage their resources according to a pay-for-use model that restricts access for those unable to afford the proprietary license fees. furthermore, these business practices essentially require authors as well as their institutions to fund both the research and publication costs associated with this information—universities, with the assistance of other funding agencies, are required to pay for the research costs, associated salaries of researchers as well as subscriptions to the journals where this work is ultimately published, while also often signing away control of these publications. the result of this traditional publishing model “is an exploitative situation in which academic authors and the institutions for which they work are paying the costs of publication but losing control over their published works.” such a situation can restrict the circulation of information and knowledge by privileging the economic interests of the publishers who have become the owners of the intellectual property of the works they disseminate. this traditional ”walled garden” approach to publishing and information dissemination relies upon forms of editorial and access controls that limit the freedoms available to large groups of the public while entrusting smaller groups with a great deal of privilege. on one hand, the journals’ editors exercise discretion over content, determining what will appear in the journal, in what format and where. on the other hand, the owners of the intellectual property of the content itself determine where and how the materials can be accessed, how they can be used, and by whom. these publication formats effectively prevent information from reaching larger segments of the public, thus limiting the social benefits that would be attained by affording wider access to expressive goods. opening the gates to these walled gardens is therefore vital to the development of a robust and expansive public sphere. the open access movement, as stated in the berlin declaration, contrasts this restrictive model with one that seeks to produce the “universal availability of a comprehensive source of human knowledge and cultural heritage.” as nicholas bramble’s survey of open access journals finds, “most open access advocates would agree that the purpose of open access is to remove price barriers such as subscription and licensing fees, as well as permission barriers such as licensing restrictions, from what authors can do with the articles they write and from what viewers can do with the articles they read.” within the open access movement, especially as it relates to scholarly publishing, there are distinct strains and modes of practice. the so-called “green road” is a system of self-archiving where authors place their writing in open electronic archives; the more ambitious “golden road,” meanwhile, is the use of open access online journals such as this one—publicly available resources that readers can use for free with relatively few limitations aside from attribution. travelling upon these pathways particular challenges must be overcome. on the green road, these problems relate to the need to negotiate with traditional publishers favourable access and publication rights so that the author—or her institution—can publish or post the article online in a free-for-use format notwithstanding its likely for-profit publication elsewhere. the gold road, meanwhile, necessitates the creation of entire journals that are based upon the free-for-use model, thus requiring alternative modes of financing for the publisher. in many cases, this must be achieved through institutional or organizational support as well as by having authors—often through grant and research funds—pay for the publication of their articles. open access journals, then, require the creation of alternative rights and business models that stand in contrast to those used by the traditional publishing industry. these journals remain enmeshed within current intellectual property practices, as they are dependent upon content and content curation for their existence, yet they employ intellectual property laws in innovative ways that upset the power structures perpetuated by traditional publication practices. while there is a great deal of momentum within the open access movement, competing societal and economic pressures threaten to subvert the expansion of open access regimes. the desire for prestige and recognition from authoritative bodies—including tenure committees and employers—may favour the maintenance of traditional, hierarchical publishing structures. peer reviewed journals maintain a privileged position in terms of how published materials are socially understood and respected, making the move to open access publication difficult for authors seeking professional recognition. at the same time, relaxing controls over intellectual property may prevent established journals from being able to recoup their costs and remain profitable, at least without fundamental changes in their business models and dissemination strategies. and, of course, there are already significant financial pressures constraining the socially valuable activities of the kinds of publicly funded institutions that could lead the charge towards an open-access publishing paradigm. the social and economic structures that maintain the hierarchical nature of traditional publishing models thus have the power to relegate open access publishing models to a parallel track where they are undervalued or perceived to be less legitimate than their traditional counterparts: “green road” open access strategies will continue to be subject to restrictions imposed by traditional publishers, while the “golden road” will remain the path-less-travelled—quite possibly regarded as a less legitimate and esteemed alternative or short-cut off the main route. thus, despite the clear social gains promised by more open forms of academic publishing and distribution, open access models will likely continue to play only a complementary role in scholarship unless cultural and institutional norms change to legitimate and facilitate these practices and the values they embrace. 3.3 open access: philosophy and guiding principles within the open access movement, liberal ideas about property and creativity are undermined and challenged. rather than adhering to the individuated form of authorship that intellectual property laws presuppose, open access initiatives take into account varying forms of collaboration, creativity and development. such initiatives recognize that the production of information, knowledge and culture are based around mimetic processes that build from and upon one another while development is enmeshed within larger social structures that support and stimulate innovation. the individual author is not viewed as a person working independently, but rather her creative process is understood in the context of (and as a contribution to) society and cultures of knowledge and development. thus open access projects emphasize the individuated author as an historically constructed, unnecessary and undesirable fiction in many of the same ways that relational feminist criticism does. from these perspectives, knowledge should be understood not as an asset or resource but as the foundation of a series of relationships of domination and subordination. the ability to grant or deny access to knowledge is the power to dominate those who seek to access it. rather than equalizing power, “the goal of improving access to knowledge under this construction would require dismantling the structures that facilitate domination and subordination.” in terms of scholarship and other communities of knowledge this would allow for expanded access to the tools and information necessary for further development. as miller describes it: “the central reason open access scholarship matters is because it extends the reach of every scholar who participates in it. simply put, placing one’s article in an open access repository (such as ssrn or berkeley electronic press’s legal repository (“bepress”)) dramatically reduces the cost at which people outside the u.s. law school community (i.e., people other than law professors and current law students) can find and read that article. so long as the means for distributing articles doesn’t undermine the incentive for producing them in the first place, reducing the access cost is a social gain.” this social gain stands at the forefront of the philosophy embedded within the open access movement. whereas intellectual property laws were historically envisioned—and continue to be rationalized—as a means for creating and sustaining the incentive to produce new and socially valuable ideas, the continuous expansion of intellectual property rights has produced legal regimes that restrict access and downstream use of information resources far beyond what is required to encourage their creation. this is particularly true in the academic realm where creativity has its own incentives both cultural (in the form of professional requirements and recognition) and economic (in the form of salaries and grants). indeed, where these academic salaries and grants draw on public funds, the exclusion of the public from the expressive works that they support looks particularly problematic. as bartow writes, “copyright laws are preventing rather than incentivizing the creation and distribution of important ideas and expression. moreover, when the government brings the force of law to bear to prevent the authorship, distribution, and reading of certain words, it begins to seem a lot like censorship.” in this way, intellectual property structures often do more to obstruct than to further the ostensible goals of academic scholarship and publication; in contrast, open access paradigms, which disrupt these forms of censorship and exclusion, further such goals by contributing to an expansion of the effective public domain and the dissemination of available knowledge and information. 3.4 what’s feminist about open access? relational feminist critiques of authorship and ownership challenge the legal conceptions presupposed by intellectual property law, which assert a masculine form of creativity that subverts the influences of culture and society to conceptions of an authoritative and independent author. mark rose has critically highlighted the patriarchal notions that are ingrained in these legal conceptions of authorship and property. these assumptions feminize, and make subordinate, the cultural realm to the will and inspiration of the masculine author. inspiration is thus a masculine form in that it actively creates from an inert culture that merely nurtures this creativity. authorship and ownership are thus afforded to the individual—conceived of as a male—without regard to the cultural influences that, in fact, actively negotiate and contribute to the creation of the work. as we have seen, relational feminist critiques of intellectual property challenge this authorship paradigm and reaffirm the social as an active agent necessary for the creation of various works. open access movements follow in this vein by providing the tools and spaces necessary for discursive formations of knowledge and innovation. through their identification of lines of critique that challenge dominant neo-liberal conceptions of online activity, open access initiatives, and feminist theories share a number of commonalities. most explicitly, both of these critical movements embrace relational conceptions of intellectual creativity that problematize intellectual property paradigms. for its part, feminist critique “works across borders in ways that unsettle familiar philosophical and political frameworks.” such criticism draws attention to the ways that formalized power structures exert influence over peoples, especially those that belong to marginalized groups. in the digital realm, this marginalization characterizes those groups that either do not have access to online materials and/or work with online materials in ways that counter the hegemonic capitalist practices that dominate neo-liberal structures of governance over the internet. open access initiatives intersect with and are sympathetic to feminist orientations geared toward problematizing and disrupting established individualistic and patriarchal orders and thereby allowing traditionally excluded groups greater room for manoeuvre. both movements value information, communication, and dialogic participation as sources of empowerment. the revolutionary potential offered by digital communications motivates these attempts to destabilize dominant market structures and transcend their limitations. as judy wajcman writes, “industrial technology may have had a patriarchal character, but digital technologies, based on brain rather than brawn, on networks rather than hierarchy, herald a new relationship between women and machines.” the interactive and social nature of digital technologies offers new forms of interaction and collaboration that may have socially transformative effects. however, such transformative aspirations can be realized only by altering the social and economic conditions that support the dominant structure. as dianne currier writes, feminist critique: “allows an assessment of the intersections between technologies and men and women in terms of prevailing relations and distributions of power. adopting an alternative conceptual horizon will not, in itself, effect a wholesale transformation of the lives and activities of women and men. clearly, there remains a pressing need for everyday intervention and political action. it will, however, open up the possibility of thinking new and radically transformed futures, which remains a crucial element of feminism as an aspirational enterprise.” through processes of more overt dialogue in digital environments, open access movements and relational feminist critiques might better voice these possibilities. open access law journals have a unique role to play in hosting such dialogues, highlighting the limits of intellectual property frameworks and their disempowering effects for the relational practices of creativity and authorship that characterize the way digital technologies might ideally function in human worlds of sociality. relational feminism and open access, then, share a concern for the social nature of human existence. rather than privilege an individuated form of subjectivity and authorship, both look to restore the ideals of sharing and dialogue that are apparent in conceptualizations of the relational self. accessibility and communicative exchange are necessary elements of knowledge, creativity and existence in democratic environments. this conception dislodges the dominant, modern, neo-liberal conception of intellectual property rights in which relations of communication are effectively conceptualized as relations of marketplace exchange. it indexes a commitment to a lively public sphere of common deliberation, open dialogue, and the egalitarian quest for greater mutual understanding and social progress dependent upon the combined energies of participants mutually committed to improving the commonweal. open access and relational feminism, then, serve to dislodge the individuated and economic rationale behind dominant intellectual property regimes and offer ways to reconceptualize how the author and creative works are situated within our social, economic and political economies. 4. concluding remarks: on the synergies of open access and feminist movements over time, feminists have both hailed and doubted the power of technology to effectuate greater equality. current debates surrounding the open access movement revitalize this conversation and provide new opportunities for evaluating the potential of communications technologies to effect forms of social transformation by equalizing access to the means of communicative expression. in challenging the existing power structures that support the intellectual property architecture in modern neo-liberal society, open access paradigms and practices offer a distinctly unique way of fostering creativity, interaction and collaboration by unlocking the wealth of human knowledge from proprietary controls and undermining concentrations of economic privilege. open access crusaders and feminist critics find new possibilities for social change in these technological conditions. as sadie plant has observed, “[m]any feminists are now finding a wealth of new opportunities, spaces and lines of thought amidst the new complexities of the ‘telecoms revolution’. the internet promises women a network of lines on which to chatter, natter, work and play; virtuality brings a fluidity to identities which once had to be fixed; and multi-media provides a new tactile environment in which women artists can find their space. . . complex systems and virtual worlds are not only important because they open spaces for existing women within an already existing culture, but also because of the extent to which they undermine both the world-view and the material reality of two thousand years of patriarchal control.” in order for such technological possibilities to enable these new social realities, it is necessary to challenge both the ideological and economic logic that continues to prevent these technologies from realizing their full political potential. we have argued that intellectual property rights, as they are expressed in contemporary capitalist societies and as they have become globalized under neoliberal trade agendas, are at the core of this logic. only by contrasting these laws and their premises with, and demonstrating the viability of, alternative models will we be able to fully seize the potentialities that digital technology affords for dialogic and relational forms of creativity. both open access and feminist movements are committed to using a ground up, grass roots, and participatory approach to social change, providing alternative modes of thought, practice and collegial sociality, thereby offering new possibilities for unlocking the potential of digital media. this journal, then, finds itself in a critical position both within movements of feminist critique and those of open access. as we have argued, by offering alternative ways of relating with and asserting the rights of authors, open access movements point to a postmodern conception of authorship that reflects feminist criticism’s relational perspective. challenging the predominately individuated notion of the author that is represented and reproduced by contemporary intellectual property laws offers the opportunity for shifting towards a paradigm that reflects the recursive and relational nature of creativity and knowledge production. such a task is essential as digital and networked technologies transform the modes of practice that contribute to innovation and creativity. harnessing the potential offered by digital technologies offers the possibility of creating a more just, robust, open, and collaborative public space that enriches discourse and knowledge. entering into these parallel movements, this journal can contribute to the larger movement of copyright and intellectual property reform in various ways. and so we will conclude with a few thoughts about how an open access journal such as this might help to advance the shared aspirations of the feminist critical and open access movements. 1) challenging existing norms clearly both the feminist movement and open access alternatives critically address the norms implicated within the existing intellectual property paradigm. specifically, both movements we discuss in this paper highlight the need to reform intellectual property laws in a way that reflects a relational and recursive conception of authorship and originality. making works free-for-use and open to a larger public allows this journal to contribute to this discussion, challenging traditional normative frameworks and the individuated form of authorship that they presuppose. creating a space, or spaces, where research, criticism, and scholarly activity can take place also serves to create oppositional and aspirational realms where these discussions can appropriate and spread into other areas. utilizing innovative forms of rights management that are rooted in a desire to disseminate knowledge and discourse to wider publics and audiences creates the possibility of interconnections and relationships with other like-minded movements. 2) highlighting the possibility of alternative modes of practice practical considerations remain a sticking-point in the creation of alternative intellectual property and rights management paradigms. with legislators across the world seeking to address the ongoing “digital revolution” by creating “balanced” forms of copyright protections, the viability of open access journals such as this one helps to demonstrate the existence of alternative modes of practice. rather than being locked into traditional publishing models that assert the primacy of the rights holder over the greater social goods that can be garnered through more open access to information, the proliferation of open access journals can highlight the importance and viability of alternative and open practices. 3) disrupting conventional publishing practices as established industries and publishers seek to further entrench their proprietary rights in an effort to maximize profits, the existence of parallel open access journals will help to subvert these attempts by creating alternative spaces where further research and dissemination can take place. in doing so, they disrupt the monopolistic practices and control of the established industries by offering competing information that is freely and easily accessible. this journal is now part of a critical mass of similar open access initiatives that, in combination, challenge the capitalistic considerations that guide traditional industries, forcing them to compete with open access journals and adjust their business models accordingly. this journal is therefore evidence of how critical feminist scholarship and the open access movement can work in tandem to advance the shared aspirations that we have identified, redressing the ingrained norms that support the dominant intellectual property paradigm and the power imbalances that it produces in our cultural realm. * associate professor, osgoode hall law school, york university, canada. � hyperlink "mailto:ccraig@osgoode.yorku.ca"" �ccraig@osgoode.yorku.ca�. ** phd student, communication and culture program, york university, canada. � hyperlink "mailto:jfturco@yorku.ca" �jfturco@yorku.ca�. *** canada research chair in law, communication and culture, york university, canada. � hyperlink "mailto:rcoombe@yorku.ca"" �rcoombe@yorku.ca�. � james boyle, “a politics of intellectual property: environmentalism for the net?” (1997) 47 duke l.j. 87 at 87: “everyone says that we are moving to an information age. everyone says that the ownership and control of information is one of the most important forms of power in contemporary society. these ideas are so well-accepted, such clichés, that i can get away with saying them in a law review article without footnote support.” the irony of this footnote is not lost on us. � see rosemary j. coombe, the cultural life of intellectual properties: authorship, appropriation and the law (durham, nc: duke university press, 1998). � cp. julie e. cohen, “copyright, commodification, and culture: locating the public domain” in l. buibault and p.b. hugenholtz, eds, the future of the public domain (netherlands: kluwer law international, 2006) at 121-166. � there are a few notable exceptions. see, for example, ann bartow, “fair use and the fairer sex: gender, feminism, and copyright law” (2006) 14(3) j. gender, soc. pol’y & l. 551; malla pollack, “toward a feminist theory of the public domain, or rejecting the gendered scope of united states copyrightable and patentable subject matter” (2005-2006) 12 wm & mary j. of women & l. 603; andrea lunsford, "rhetoric, feminism, and the politics of ownership": � hyperlink "http://weather.ou.edu/%7efemrhets/speech.html" \t "_blank"" ��http://weather.ou.edu/~femrhets/speech.html�; dan l. burk, “copyright and feminism in digital media” (2006) 14 j. gender, soc. pol'y & l. 519; and, dan l. burk, “feminism and dualism in intellectual property law” (2007) 15 j. gender, soc. pol'y & l. 183. for a more expansive discussion of a feminist-relational theory of copyright law, see carys j. craig, “reconstructing the author-self: some feminist lessons for copyright law” (2007) 15 am. u. j. gender, soc. pol’y & l. 207; and copyright, communication and culture: towards a relational theory of copyright (cheltenham, uk ; northampton, ma: edward elgar press, forthcoming, 2011). � grantland s. rice, the transformation of authorship in america (chicago: university of chicago press, 1997) at 76 [rice, the transformation of authorship]. � martha woodmansee, “the genius and the copyright: economic and legal conditions of the emergence of the ‘author’” (1984) 17 eighteenth-century studies 425 at 426. � ibid. at 432. � marilyn randall, pragmatic plagiarism: authorship, profit and power (toronto: university of toronto press, 2001) at 47 [randall, pragmatic plagiarism]. � see ibid. at 47-50. � peter jaszi, “towards a theory of copyright: the metamorphoses of ‘authorship’” (1991) 2 duke l.j. 455 at 469 [jaszi, “towards a theory of copyright”] (citing ian watt, the rise of the novel: studies in defoe, richardson and fielding (berkley, ca; university of california press, 1957) at 60). see also, rosemary j. coombe, “challenging paternity: histories of copyright” (1994) 6 yale j. l. & human. 397 [coombe, “challenging paternity”]. � rice, the transformation of authorship, supra note 5, at 89. � c.b. macpherson, the political theory of possessive individualism: hobbes to locke (oxford: oxford university press, 1962) at 3 (defining “possessive individualism” as the “conception of the individual as essentially the proprietor of his own person or capacities, owing nothing to society for them”). �mark rose, authors and owners: the invention of copyright (cambridge, ma: harvard university press, 1993) at 1. � michel foucault, “what is an author?” in paul rabinov, ed., the foucault reader (new york: pantheon books, 1984) at 101[emphasis in original]. � ibid. at 119; see also jaszi, “towards a theory of copyright”, supra note 10, at 467. � shelley wright, “a feminist exploration of the legal protection of art” (1994) 7 c.j.w.l. 59. wright perfectly captures the nature of this relationship, at 73-74. � michael j. madison, “where does creativity come from? and other stories of copyright” (2003) 53 case w. res. l. rev. 747 at 760. � see coombe, “challenging paternity”, supra note 10, at 473. � see johanna gibson, creating selves: intellectual property and the narration of culture (dartmouth: ashgate, 2006). see also, william patry, moral panics and the copyright wars (oxford: oxford university press, 2009). � roland barthes, “the death of the author” (1968) in image, music, text (new york: hill & wang, 1997) [barthes, “the death of the author”]. � randall, pragmatic plagiarism, supra note 8, at 24. � see robert h. rotstein, “beyond metaphor: copyright infringement and the fiction of the work” (1992/93) 68 chicago-kent l. rev. 725 at 756. texts are necessarily “reproductions” of other texts, not in the legal sense of having reproduced a substantial part of any particular pre-existing work, but in the sense that they derive from, draw upon, and incorporate within them, an unspecifiable array of pre-existing texts that have influenced and shaped the author and the cultural standpoint from which she speaks. � alan l. durham, “copyright and information theory: toward an alternative model of ‘authorship’” (2004) b.y.u.l. rev 69 at 94. � jessica litman, “the public domain” (1990) 39 emory l.j. 965 at 967. � ibid. at 1011. � barthes, “the death of the author”, supra note 20, at 137. � see e.g. martha minow, making all the difference: inclusion, exclusion and american law (ithaca, ny: cornell university press, 1990); jennifer nedelsky, “reconceiving autonomy: sources, thoughts and possibilities” (1989) 1 yale j. l. & fem. 7 [nedelsky, “reconceiving autonomy”]; jennifer nedelsky, “reconceiving rights as relationship” (1993) rev. const. stud. 1 [nedelsky, “reconceiving rights”]. see also, catherine keller, from a broken web: separation, sexism, and self (boston, ma: beacon press, 1986); carol gilligan, in a different voice: psychological theory and women’s development (cambridge, ma: harvard university press, 1982); robin west, “jurisprudence and gender” (1988) 55 u. chicago l. rev. 1; mary becker, “patriarchy and feminism: toward a substantive feminism” (1999) u. chicago legal. f. 21. � nedelsky, “reconceiving autonomy”, ibid. at 27. � jennifer nedelsky, “citizenship and relational feminism” in ronald beiner and wayne norman, eds, canadian political philosophy (oxford: oxford university press, 2001) [nedelsky, “citizenship and relational feminism”]. � nedelsky, “reconceiving rights”, supra note 27, at 14-15. � elizabeth frazer & nicola lacey, the politics of community: a feminist critique of the liberal-communitarian debate (toronto: university of toronto press, 1993) [frazer & lacey, community]. see also seyla benhabib, “liberal dialogue versus a critical theory of discursive legitimation” in nancy rosenblum, ed., liberalism and the moral life (cambridge, ma: harvard university press, 1989); seyla benhabib, “autonomy, modernity and community” in seyla benhabib, situating the self: gender, community and postmodernism in contemporary ethics (new york: routledge, 1992) at 70 [benhabib, situating the self]; drucilla cornell, “beyond tragedy and complacency” (1987) 81 nw. u.l. rev. 693; drucilla cornell, “two lectures on the normative dimensions of the community in the law” (1987) 54 tenn. l. rev. 327; drucilla cornell, the philosophy of the limit (new york: routledge, 1992). nedelsky, in “citizenship and relational feminism”, supra note 29, at 143, also stresses the importance of public participation in ongoing debates and collective decision-making “both as an intrinsic part of human autonomy and expression, and in order to ensure that the structures of relationship are such that they foster the autonomy of all.” � frazer & lacey, community, ibid. at 193. � ibid. at 192. � ibid. at 208. consciousness-raising is an “interactive and collaborative process of articulating one’s experiences and making meaning of them with others who also articulate their experiences:” katharine t. bartlett, “feminist legal methods” in katharine t. bartlett & rosanne kennedy, eds., feminist legal theory: readings in law and gender (oxford: westview press, 1991) at 381. � see anne c. dailey, “feminism’s return to liberalism” (1993) 102 yale l.j. 1265 at 1274: “narrative … is speech with a different objective. in contrast to the spontaneous, open-ended dialogue of consciousness-raising, narrative as practiced by feminist legal scholars is a supremely self-conscious art form.… feminist narrative in law is literature with a political point.” � having deconstructed the unity of subjectivity and acknowledged the shifting and multiple nature of the communities within which the fragmented subject is constituted, our capacity to conceive of ourselves as possessing some degree of stable identity seems dependent not just upon dialogic relations with others, but also upon a continuous internal dialogue. cp. benhabib, situating the self, supra note 31, at 5: “the identity of the self is constituted by a narrative unity, which integrates what ‘i’ can do, have done and will accomplish with what you expect of ‘me,’ interpret my acts and intentions to mean, wish for me in the future, etc.” � susan h. williams, “a feminist reassessment of civil society” (1997) 72 ind. l.j. 417 at 430-31. � see carys j. craig, “putting the community in communication: dissolving the conflict between freedom of expression and copyright” (2006) 56 u. of toronto l.j. 75. � nedelsky, “reconceiving autonomy”, supra note 27, at 12. � see rosemary j. coombe, “objects of property and subjects of politics: intellectual property laws and democratic dialogue”, 69 tex. l. rev. 1853. � arpanet was designed to safeguard us communications from a nuclear attack. tania regina tronco, “a brief history of the internet” in tania regina tronco, ed., new network architectures: the path to the future internet (berlin: springer-verlag, 2010) at 1-11. � james w. carey, “historical pragmatism and the internet” (2005) 7(4) new media & society 443 at 445. � ibid. at 453. � christopher kelty, “geeks, social imaginaries and recursive publics” (2008) 2(2) cultural anthropology 185 at 185 [kelty, “geeks”]. see also christopher kelty, two bits: the cultural significance of free software (durham, nc: duke university press, 2008) [kelty, two bits]. � james gilles & robert cailliau, how the web was born (oxford: oxford university press, 2000) at 640. � budapest declaration (2001), as quoted in joseph scott miller, “why open access to scholarship matters” (2006) 10 lewis & clark l. rev. 733 at 734 [miller, “why open access”]. � ann bartow, “open access, law, knowledge, copyrights, dominance and subordination” (2006) 10 lewis & clark l. rev. 869 at 873-4 [bartow, “open access”]. � kelty “geeks”, supra note 44, at 186. � christopher m. kelty, “culture’s open sources: software, copyright and cultural critique” (2004) 77(3) anthropological quarterly 499 at 499. � ibid at 547. � lawrence lessig, code: and other laws of cyberspace (new york: basic books, 1999). � free/libre/open source software (floss) is an internationally distributed open source software initiative, for more see, http://www.flossworld.org/. for more information on the creative commons, see � hyperlink "http://www.creativecommons.org"" �http://www.creativecommons.org�. � michael j. madison, “the idea of the law review: scholarship, prestige, and open access” (2006) 10 lewis & clark l. rev. 901 at 903. � nicholas bramble, “preparing academic scholarship for an open access world” (2006) 20 harvard j. l. & technology 209 at 217 [bramble, “preparing academic scholarship”]. � ibid. � “the road to open access” (2005), available at � hyperlink "http://www.zim.mpg.de/openaccess-berlin/roadmap_print.pdf"" �http://www.zim.mpg.de/openaccess-berlin/roadmap_print.pdf�. . � bramble, “preparing academic scholarship”, supra note 54, at 211. � stephanie l. plotin, “legal scholarship, electronic publishing and open access: transformation or steadfast stagnation?” (2009)101 law library journal 1. � for a more comprehensive look at these difficulties see, bramble “preparing academic scholarship”, supra note 54. � ibid. � ibid. � marcus boon, in praise of copying (cambrdige, ma: harvard university press, 2010). � bartow, “open access”, supra note 47, at 871. � miller, “why open access”, supra note 46, at 735. � bartow, “open access”, supra note 47, at 879. � mark rose, “mothers and authors: johnson v. calvert and the new children of our imaginations” (1996) 22 critical inquiry 224. � uma narayan & sandra harding, “introduction” in uma narayan & sandra harding, eds., decentering the center: philosophy for a multicultural, postcolonial and feminist world (bloomington, in: indiana university press, 2000) at 1. � judy wajcman, “feminist theories of technology” (2010) 34 cambridge journal of economics 143 at 148. � diane currier, “feminist technological futures: deleuze and body/technology assemblages” (2003) 4 feminist theory 321 at 337. � see shalini venturelli, “cultural rights and world trade agreements in the information society” (1998) 60(1) gazette: international journal for communication studies 47. � lewis hyde, common as air: revolution, art and ownership (new york, ny: farrar, straus and giroux, 2010). see also kelty, two bits, supra note 43. � see sally wyatt, “feminism, technology and the information society: learning from the past, imagining the future” (2008) 11(1) information, communication & society 111. � sadie plant, “on the matrix: cyberfeminist simulations” in r. shields, ed., cultures of internet: virtual spaces, real histories, living bodies. (london: sage publications, 1996) 170 at 170. ______________________________________________________________________________ 34 ______________________________________________________________________________ 35 kumar feminism then and now ______________________________________________________________________________ feminists@law vol 4, no 1 (2014) ______________________________________________________________________________ feminism then and now introduction – sarah keenan[footnoteref:1]* [1: * lecturer in law, soas, university of london, uk, email sk128@soas.ac.uk. ] on 21 january 2014 the lse gender institute held a discussion panel on ‘feminism then and now’, the first in its series of ‘conversations’ to welcome the women’s library collection to the school. the panel consisted of writer yasmin alibhai-brown, green party leader natalie bennett, freedom without fear platform activist camille kumar, university of bristol researcher finn mackay, southall black sisters activist pragna patel, and birkbeck professor lynne segal. in the same packed lecture theatre which just two months earlier held a debate on whether rape is ‘different’, and in the same week as ukip leader nigel farage spoke in a neighbouring lse lecture theatre about his take on this year’s upcoming european elections, the panel reflected on changes and consistencies in feminist activism, primarily in england, over multiple generations. a number of the panellists mentioned the enemy of neoliberalism, and kumar and bennett extended that idea to give an analysis explicitly acknowledging the 2012-2013 campaign to save the women’s library from being purchased by, and then relocated to, the lse. while the lse is publicly celebrating the arrival of the women’s library, this move represents a defeat for the save the women’s library campaign both in terms of the collection being bought by a relatively wealthy and elitist university from a poorer and traditionally working class one (london met), and in terms of its consequent relocation from its purpose-built, explicitly feminist space in east london to the highly securitised and, for many women, intimidating halls of the lse library in holborn. as an audience member, i didn’t manage to ask the panel for their reflections on what the event’s celebration of this move meant for the place of feminism within neoliberal institutions today, particularly for the neoliberal institution we were all sitting in. i did however manage to get permission from camille kumar to publish her powerful speech from the panel discussion here. feminism then and now – camille kumar[footnoteref:2]** [2: ** activist, freedom without fear platform, uk, email freedomwithoutfearplatform@gmail.com.] i am an anti-violence practitioner and campaigner; i provided direct support for women experiencing violence for 10 years in various settings in australia, bangladesh and the uk, and have been active in the ending vawg [violence against women and girls] movement, amongst related campaigning with black feminists and other groups. i was invited today as a member of freedom without fear platform. the fwfp formed to express and foster uk based solidarity with the anti-rape movements in india and globally and to give a platform to bme women in the uk to lead discussions around vawg issues; to make the connections between anti-vawg struggles around the globe; to counter the imperialist racist discourse that uk mainstream media continuously bombard us with and; to highlight the cynical co-opting of vawg issues by various groups in the uk who are seeking to further their own racist/ anti-immigration/ islamophobic agendas. freedom without fear seeks to practice and develop a feminism that is working on the principle that until all are free, none are free. violence against women and girls was for me on a personal/political/professional level the starting point for my journey with feminism so it is with this that i will start, and i would like to share a story. eki[footnoteref:3] is a young woman i supported five years ago. eki is a trafficking survivor and had insecure immigration status. eki had multiple symptoms of ill-health and was referred to us by the psychiatric nurse at a nearby walk-in health centre. eki moved into our refuge, and we worked together towards eki’s needs and goals. eki was registered with the local gp. eki did not feel comfortable or safe to report to the authorities, due to experiences of state perpetrated abuse in her country of origin; her decision not to report was respected. eki was referred to one of our partner legal firm advisers and received free legal advice to begin the process of regularising her immigration status. eki was seen by one of our in-house counsellors who was able to offer eki a space she had not had before, to heal, to learn to trust again and to begin to rebuild her future. eki accessed esol [english for speakers of other languages] at the local college and pursued her ambition to become a nurse. when eki’s immigration status was regularised, she was supported into social housing. eki received legal aid to begin the process of bringing her two small children to the uk. eki’s determination, resilience, and ambition, combined with specialist support she received, enabled her to navigate this complex array of services to heal, recover and create a future for herself and her children. [3: not her real name. ] what would happen to eki now? eki is referred to the local service that is now run by a housing association, as the women’s service was de-funded. her worker is not an anti-violence specialist. eki is taken to the gp but the clinic refuses to register her as her immigration status is uncertain. eki is told that she can only remain in the refuge for 2 days before she must consent to reporting to the authorities. she is not able to access legal aid. the nearest esol course is 75 minutes’ bus ride away and eki can’t afford to get there. eki is supported for 45 days and then she is told there is no funding for her to remain in the accommodation. eki is deemed ‘high risk’ as she has told workers she will return to an abusive punter as she has nowhere else to go. eki is referred to a ‘marac’ – a multi-agency risk assessment conference – where social workers, police, and other ‘relevant professionals’ share her information. the next day eki is woken at 3am by immigration officers and taken to immigration detention. eki is placed in fast track and deported before she is able to see a lawyer. i was asked to speak on what the contemporary priorities of feminism are, as i see them. i see everything as a feminist issue, whether they are labelled as such or not, and all feminist issues must connect to other movements for social change. i am a black feminist and for me the struggles against imperialism, patriarchy and racism are entwined and cannot be separated. i facilitate a group for young women in west london who have experienced sexual violence and when i told them about this evening’s event and asked what they think is the main priority for feminism, one of them said ‘a safer world’. violence is the point at which patriarchy is most tangibly felt in our lives: and eki’s story is a clear example of the need for intersectional analysis in any movement for change. the violence of poverty, repression and abuse eki experienced and the impacts of so called austerity measures on her journey are clear. however, behind eki’s story are questions: how did she end up in refuge in the first place? what were the contexts in which she experienced violence in the uk and her country of origin and how is the uk government implicated in this? the dominant narrative of violence being perpetrated by sociopathic individual men against defenceless female victims does not ring true for eki, and hundreds of other survivors. in eki’s story it is clear that violence can be unrelenting and there are visible and invisible perpetrators as increasingly the forces of the state collude both with the perpetrators and with other structures of oppression to torture women and girls and repress our spirit, aspiration and voice. within eki’s story are more questions: why is there a growing insistence on referring to violence as something that is ‘much worse over there’ or that is perpetrated by black men ‘over here’ when that is clearly not the reality? the violence perpetrated by white men, and by the uk state is completely invisible in our media and government rhetoric. we all heard about rochdale but did we hear about the 110 child victims on the south coast exploited by gangs of white men? eki’s story is nowhere to be seen. the uk government says that it cares about violence against women and girls, but what are they actually doing about it? the state has shifted its approach to vawg to being one completely focused on the criminal justice system. the 2004 domestic violence act [domestic violence, crime and victims act 2004] institutionalised this and this shift has particularly damaging implications for bme women. for example, the widespread use of the marac. the reality of the marac, as is clear in eki’s story, is increased surveillance of working class, migrant, and bme populations; maracs, for many survivors replicate the very same power and control dynamics that they are seeking to escape. and currently, under the anti-social behaviour crime and policing bill the government is pushing through the criminalisation of forced marriage. the government sees this as crucial, however we know that the majority of women don’t want to report to police about the violence they experience and over 90% of bme women state that receiving support from a bme service was the most helpful factor to accessing safety, the very same services that the government is cutting back on. this legislation is not about safety or justice; it is another example of the government's hypocrisy, and its cynical use of vawg issues to intensify repression, criminalisation and islamophobia. so, what needs to change for eki’s journey to be radically different? what do we campaign on? is it against austerity? is it against immigration control? is it working to create a world in which violence does not happen in the first place? and, as feminists, do we stop and reflect on the outcomes of our campaigning carefully enough? when reflecting on the work of the ending vawg movement, some thoughts came to my mind: the raised profile of violence against women issues has its positive outcomes, such as funding for services, however it has also led to the competitive tendering of services, and we are faced with corporates like g4s winning contracts for sexual and domestic violence services, at the expense of women organising. this raised profile is also used to justify increased policing powers and prison expenditures, leading to tragic killings like that of mark duggan and companies like g4s benefiting from the expansion of imprisoned/detained populations. anyone who has had to endure the criminal justice system as a survivor of violence or their supporter knows that the criminal justice system is far more likely to re-traumatise a woman than offer her any sort of justice, yet criminal justice continues to be packaged as a solution to violence. while anti-trafficking activism has brought the trafficking issue to wider attention, the increased profile has also been used as a justification for increased harassment and police perpetrated rape of women working in prostitution as their homes and workplaces are raided, and we see increasing numbers of women being criminalised, immigration detained and/or punished for their experiences of violence. we have seen a doubling of the foreign national prison population in the last 10 years, and we know that already at least 1 in 3 women in prison have experienced sexual abuse. we need to look at the impacts of the competitive marketplace we have all entered and how much we have been removed from founding aspirations and principles. there needs to be more critical analysis of the ways that our campaigns for change are exploited in a neoliberal capitalist society and ensure that we do not align ourselves with groups whose fundamental vision is inherently different to our own. i don’t know that the priorities of feminism have moved that much since we started on this project of disrupting power; but the lessons we are learning are there and available to us – a resource that we must avail ourselves to. for feminism to be what it says on the tin, it must be continually evolving, shifting and diversifying; where patriarchy seeks to enforce authority, feminism seeks to declare privilege; where patriarchy seeks to create a single ‘rationalised’ truth and repress all else, feminism seeks to simultaneously hold many truths and be the witness bearer to secrets; and where patriarchy seeks to divide, subjugate and conquer, feminism seeks connection, equality and collective struggle. feminism is being re-branded, re-packaged and renovated at every moment, put through a white-washed, pink pounded, conveyer belt of commodification and people are swallowing the bullshit, buying the wristband, the book and the t-shirt. assertions of feminism and claims to the name come from the most unexpected quarters and we must remain vigilant. in solidarity with the women who protested the takeover, i would like to comment that the women’s library was not saved by lse, but was in fact taken over in the face of much protest – a 12,000-strong petition and an occupation – severely restricting access to the collections and removing them from their purpose-built home and one of the last remaining dedicated spaces of feminist activism to move it here, an inaccessible academic space where a platform was recently given to a rape apologist. feminism cannot be taught or bought, it is a doing word. i will leave you with the words attributed to indigenous activist lila watson: if you have come here to help me, you are wasting your time, but if you have come because your liberation is bound up with mine, let us work together. ________________________________________________________________________ 2 ________________________________________________________________________ 1 heidi härkönen kinship in contemporary cuba _______________________________________________________________________________________ feminists@law vol 11, no 2 (2023) _______________________________________________________________________________________ marginalisations and redefinitions of kinship in contemporary cuba heidi härkönen[footnoteref:2]* [2: * post-doctoral researcher, gender studies, university of helsinki, finland. email: heidi.harkonen@helsinki.fi. i am grateful to the corekin scholars, with whom i worked in close contact while writing this article: antu sorainen, anna moring, anna avdeeva, alisa zhabenko and anna heinonen. i also want to thank thomas strong, elisabeth engebretsen, davina cooper and didi herman for their insights and comments. this article was first written during my academy of finland-funded project ‘wellbeing and social change: body, personhood and care in post-soviet cuba’ (from 1 september 2016 31 august 2019, grant number: 294662, dir. antu sorainen) at the university of helsinki discipline of social and cultural anthropology. i revised it during my visit to the university of cambridge department of social anthropology, and during my time as a post-doctoral researcher in gender studies as a part of the academy of finland-funded project ‘contrasting and (re-) imagining the margins of kinship’ (1 september 2016 31 august 2020, grant number: 297 957) at the university of helsinki. i finally completed this article while working on my kone foundation-funded research project on cuba’s emerging digitalisation in the discipline of gender studies at the university of helsinki. i am grateful to all of these funders for enabling my research and to these research communities for providing a supportive environment for my work. ] abstract this article examines the marginalisations and redefinitions taking place in kinship relations and the resources that persons in a precarious social position draw on to cope with exclusions in the context of large-scale social, legal, political, and economic change. in situations of global and local transformation, people may become marginalised in their social relations for various reasons, but in the margins, they can also find resources to alleviate or redefine such experiences. such processes are complexly shaped by intersectional differences and inequalities of gender, sexuality, race, and age. drawing on long-term ethnographic research in cuba, a country that is currently undergoing extensive structural changes, this article focuses on the marginalisations of kinship through the ethnographic story of an elderly woman and her kin encountering unexpected exclusions in their relationships. as cuba transforms from a socialist, egalitarian society into a new social order increasingly guided by the privileges of money, social relations are redefined in terms of shifts in understandings of marginality. in the margins, we find new arrangements of both discrimination and support, but the political potential of such processes is ambiguous and culturally and historically contingent. keywords kinship, marginalisation, cuba, socialism, gender, age, sexuality, race introduction while the margins are usually understood as a social site of weakness and dispossession, feminist researchers have argued that marginality can provide us with a socially and analytically fertile focus for understanding questions of power, exclusion, and agency. anthropologist anna tsing argues that marginality creates a productive way to explore global and local hierarchies of identity and power because from the margins “we see the instability of social categories” (tsing 1994: 279). she defines the margins as “zones of unpredictability at the edges of discursive stability, where contradictory discourses overlap, or where discrepant kinds of meaning-making converge” (tsing 1994: 279). tsing suggests that marginality creates experiences of discrimination, but also allows people to criticise, redefine and manipulate their exclusion in a creative way (tsing 1993). other scholars have also engaged with the margins as providing individuals with possibilities for agency and action. judith butler (2016) points out that marginalised persons can find embodied ways of political resistance by acting together. these perspectives show how marginalised persons may find creative ways to resist their exclusion and redefine their social and political position amidst discriminative structures. this article expands these scholarly understandings of the margins and marginality as socially and analytically productive by focusing on marginalisations and redefinitions of kinship in the context of large-scale political, economic, social, and legal change. i will use the term ‘margins’, and its derivative, ‘marginalisation’, as an analytic lens through which to examine how people encounter varied forms of exclusion in their social relations, but also find new sources of support in the context of extensive structural developments. in the scholarly discussions on gender and kinship, marginality is often understood to concern persons who are outside of the normative views of gender, sexuality, and (stable nuclear) family life (see moring this issue; avdeeva this issue; zhabenko this issue; härkönen this issue). nevertheless, sometimes also other persons may come to experience marginalisation in their social relations. the reasons for such shifts may be historical changes in values and morality or structural developments creating new problems for individuals. the understanding of such changing experiences of marginality requires empirical research in specific historical and sociocultural contexts. drawing on long-term ethnographic research in cuba, this article examines how during large-scale changes in state policies, some people come to experience new marginalisations in their relationships but also find novel sources of support. this article will focus on marginalisation in the context of kinship, a crucially significant relationship for my cuban interlocutors (see härkönen 2016a). i understand marginalisation in kinship relations as a historically and culturally contingent social process that defines and redefines relationships, not as a fixed category automatically defining some people, but rather as a shifting process of ambiguity and change (cf. green 2005: 8). i argue that an analytical focus on the marginalisations and redefinitions of kinship allows us to explore how large-scale changes may create shifts in individuals’ experiences of exclusion, and the precarious forms of support and coping of persons who are faced with sudden rejections in their relationships. cuba forms a fascinating context for exploring shifting marginalisations because, during the last few years, it has undergone large-scale, political, economic, and legal transformations that have redefined social relations and created for individuals new experiences of exclusion. in cuba, that for many years has relied on an official ideology of socialist egalitarianism and continues to be an officially socialist state which provides multiple forms of state services to the individuals, such new marginalisations are indicative of profound shifts in sociability in the context of increasing inequalities of wealth, race, gender, age, and sexuality. at first glance, my interlocutors may not appear to be marginalised in their relationships: they are for the most part heterosexual, low-income, racially mixed havana residents. they are ‘ordinary’ in the sense that they are not, for example, political dissidents or sex workers, who have been the focus of the majority of recent research on cuba (e.g. cabezas 2009; allen 2011; stout 2014; daigle 2015; hodge 2001, 2005; sierra madero 2015). nevertheless, in the context of cuba’s structural developments, also those who used to be ‘ordinary’ now encounter new troubles and exclusions in their relationships, redefining their social position in ways that resonate with wider social shifts. at the same time, these state-level changes have created possibilities for more cultural and social diversity, shifting the position of some institutions, understandings, and practices that were rejected during the more ideologically strict decades of the revolution. for example, cuba has seen new openings towards the catholic church and sexual and gender diversity that have created for individuals, new possibilities to engage in previously marginalised practices, identities, and ideologies. such large-scale changes create for cubans novel sources of support, but they may also generate new social tensions and marginalisations, profoundly affecting people’s everyday lives and relationships. as cuba changes from a socialist society towards a new order increasingly shaped by market principles, many of the structural changes taking place in cuba are reminiscent of the transformations that have occurred in european post-socialist societies since the 1990s. while cuba is not post-socialist as such, it shares with european post-socialist countries a historical context whereby somewhat similar socialist logics shaped life for years (see verdery 1996: 12, 19-38). this shared history makes it useful to explore the shifts in cubans’ experiences of marginalisation in comparison with some of the processes that have redefined social relations in post-socialist europe, to better understand people’s locally varied experiences of marginalisation. in this article, i will first discuss post-socialist marginalisations of gender and kinship in a theoretical framework. i will then introduce the details of my ethnographic research. after this, i will discuss the general characteristics of everyday life in post-soviet cuba and move on to discuss the specific story of an afro-cuban, elderly woman who has come to experience sudden exclusions in her kin relations in the new cuba. this story is followed by an analysis of her experiences in terms of wider questions of marginalisation, support, and redefinition. finally, i conclude the article by arguing that in the margins, people find new sources of support, but the political potential of such support is often ambiguous. post-socialist marginalisations of kinship, gender, and sexuality in the context of large-scale political, economic, sociocultural, and legal developments, such as the change from socialism towards a more market-oriented society, individuals’ kinship and gender relations often shift. feminist anthropologists have shown how political, economic, and legal change may transform people’s understandings and practices of kinship, intimacy, love, and sexuality (ahearn 2001; padilla et al. 2007; rebhun 1999). economic, political, and legal changes may create unforeseen conflicts and exclusions in gendered and generational power relations, but they may also allow individuals new forms of agency and emotional engagement (ahearn 2001; collier 1997; hirsch 2003; hirsch & wardlow 2006; wardlow 2006: cole 2010; bourdieu 2008). such transformations may redefine kinship relations and create new marginalisations in various ways. in post-socialist societies, political, economic, and legal changes may transform individual and collective understandings of social ideals, norms, and exclusions. some of the tendencies characterising gender, sexual, and kin relations in contemporary cuba, are reminiscent of the social processes taking place in post-socialist europe, but there are also some differences. in some parts of post-socialist europe, the shifts in state and economic policies have been accompanied by the rise of conservative thinking. this includes the pursuit of “traditional family values” that involves discrimination against non-heterosexual families (zhabenko 2019, this issue; mizielińska & stasińska 2014, 2019) and the narrowing of women’s reproductive rights (gal & kligman 2000a, 2000b; mishtal 2009, 2015). in some contexts, such situations, where the political, economic, and legal processes of the post-socialist state create gendered and sexualised marginalisations, an intensified emphasis on the heterosexual nuclear family as the kinship ideal has been accompanied by calls for individual spiritual change instead of a feminist agenda for political transformation (rivkin-fish 2004; perheentupa & salmenniemi 2019; avdeeva this issue). however, nuclear family ideals are not obtainable or even desirable for everyone amidst shifting understandings of gender and kinship in post-socialist societies. new ideas and forms of kinship have gained ground amongst those pushed to the margins by changing state policies (sorainen et al. 2017; zhabenko 2019; this issue; mizielińska & stasińska 2014, 2019). in some parts of post-socialist europe, single motherhood has increased, both in contexts that for a long time have had high divorce rates (utrata 2015) and in those where marriage used to be the norm during the socialist era (saar & aavik 2022: 6). there has also been an increase in the feminisation of poverty as women are often the primary caregivers for children and the elderly in the context of diminished state contributions (patico 2010: 17; lapinske 2018). in some parts of post-socialist europe, the international marriage market has become a viable way for young women to gain social, economic and geographical mobility (patico 2009, 2010; levchenko & solheim 2013). these changes point to the gendered consequences of post-socialist transformations and how they create new gendered and sexualised inequalities of class, race, and age that redefine marginalisations in kin relations. however, the question of how much any of these persons – lgbtiq+[footnoteref:3] persons or single mothers – are marginalised in their kin relations, is complex. in some post-socialist contexts, lesbian women in particular, but also persons from other sexual or gender minorities, play an important role in their personal kin networks (zhabenko this issue; zhabenko 2019; mizielińska & stasińska 2014, 2019; hašková & sloboda 2018), being central rather than marginalised in their kinship relations. the position of single mothers is also complicated since single motherhood is socially normalised in some contexts rather than problematized (utrata 2015). instead of women, it is rather men, who are seen to be in crisis in their kin, and at times, other relations in post-socialist europe. several researchers have pointed out the ‘crisis in masculinity’ characterised by male irresponsibility, violence, and alcoholism (utrata 2015; gabriel 2005; patico 2010; perheentupa & salmenniemi 2019; kay 2006; tereškinas 2010). in some parts of post-socialist europe, such ‘crisis’ is seen to be a legacy of the socialist gender regime that ‘emasculated’ men and distorted ‘natural’ gender relations with its call for equality (patico 2010; perheentupa & salmenniemi 2019). however, such understandings are hostile to a politics of equality and shift the attention away from the fact that men continue to occupy many positions of power in post-socialist societies (e.g. kolin 2010). at the same time, amidst hostile state politics, or men who fail their expectations in terms of family commitments, mothers of all kinds – single, married and lesbian – often find support in their own mothers (zhabenko this issue; cf. avdeeva this issue; utrata 2012, 2015: 138). grandmothers have historically been an important practical, emotional, and economic help in kin and care relations in post-socialist europe, emphasising the central role of elderly women in kin relations (utrata 2012, 2015: 138; gabriel 2005).[footnoteref:4] [3: lgbtiq+ here refers to lesbian, gay, bisexual, transgender, intersex and queer and beyond (see also moring this issue, fn 2). i am aware of the critique towards this conceptualisation for its failure to grasp the full diversity of various sexual practices and identifications (e.g. warner 1999: 40) but use it here as a general term that is less context-specific and less politically charged than other possible terms (such as “queer”, see n 12 below).] [4: of course, such relationships may have their own complications, as discussed by both zhabenko and avdeeva in this issue.] in cuba, as well, relationships have shifted because of political, economic, and legal changes, but in a somewhat different way than in post-socialist europe. in post-soviet cuba, inequalities have increased, when many earlier forms of state contributions have been dismantled. while some suffer from poverty, others have managed to reap the benefits of the new possibilities in the tourist economy (martinez 2013; bastian 2018). these large-scale shifts have had a profound influence on social relations creating new marginalisations. in the midst of rising inequalities, there has been a notable increase in sex work, and suspicions of commodification nowadays bother all kinds of relationships (cabezas 2009; stout 2014; härkönen 2015, 2019). however, persons who may engage in sexual, monetary-affective relations with tourists or in other relationships often understood as sex work, who are in the margins of state law and politics, are not always marginalised in their kinship relations.[footnoteref:5] sexual and monetary-affective exchanges with foreign tourists are often channelled to support local kin members (cabezas 2009) and sometimes such partners are incorporated into cuban kinship networks as a way to create long-term engagements (stout 2015). persons engaging in relationships often understood as sex work may therefore be central in their kin relations, both when it comes to their native and later families (see also padilla 2007). [5: see criticism towards the category of the sex worker (cabezas 2009: 8; daigle 2015: 15).] lgbtiq+ cubans, on the other hand, are more at risk of becoming marginalised from their native kin relations (saavedra montes de oca 2017) because of widespread heterosexism (see lundgren 2011; härkönen 2016a: 80-82, 86-88, hamilton 2012: 37).[footnoteref:6] in cuban history, gender and sexually non-conforming persons have been strongly marginalised by revolutionary state policies. this has taken place via various means including the military units to aid production (umap) labour camps in the 1960s, policies that persecuted sexual minorities in the 1970s (e.g. prohibiting lgbtiq+ persons from the practice of some professions), and the isolation of hiv-positive homosexual men in the 1980s (hamilton 2012: 41, 459; murray 1999: 575-576; lumsden 1996). such state policies have since been strongly criticised (leiner 1994; murray 1999; sierra madero 2016; allen 2011; hamilton 2012), and even fidel castro himself admitted that such policies were a mistake (castro & ramonet 2007: 225; anonymous 2010). in post-soviet cuba, those marginalised by heteronormative understandings of kinship have found new sources of support from friendship, kinship, and same-sex relations (allen 2011; stout 2014; browne 2022), simultaneously as cuba’s state-level political, economic, and legal changes (castro espin 2011; roque guerra 2011) have opened up new social space and visibility for sexual and gender diversity (browne 2018a, 2018b). [6: to my knowledge, at least in havana, homophobic physical violence is extremely rare, but people may engage in verbally abusive statements, even though face-to-face relations are usually friendly and polite. there are also gendered, generational and other differences in this regard.] unlike the conservative turn taking place in many european post-socialist countries, in cuba, the government is officially supportive of both women’s rights and lgbtqi+ rights (castro espin 2011) and still embraces egalitarianism as an official policy (augustin 2019a). in addition, the role of institutionalised churches has for a long time been different in cuba from the religiously conservative post-socialist european countries in the sense that, for example, the catholic church has not been able to narrow women’s reproductive rights in cuba and access to abortion has remained a crucial human right (castro espin 2011). nevertheless, recently, institutionalised churches have gained more influence in creating conservative effects in cuban society. in 2017, christian denominations were vocal in public anti-abortion discourses (gonzalez 2017), and in 2018, the plans to have same-sex marriage included in cuba’s new constitution were revoked because of pressure from the catholic and protestant churches (anonymous 2018; augustin 2019b; campbell romero 2021). this suggests that conservative influences are gaining more ground, with the potential to weaken or prevent women’s and lgbtiq+ rights in the future. such processes are reminiscent of the clash between conservative influences and more liberal influences in some parts of post-socialist europe (cf. mishtal 2009, 2015). another recent shift in cuban intimate relations is that legal marriage has gained more ground as an ideal especially amongst wealthy, privileged cubans (härkönen 2017) in a context that has a long-term historical tradition of matrifocal kin relations and consensual unions among the majority of the population (martinez-alier 1974).[footnoteref:7] in caribbean matrifocal kinship, women have traditionally occupied a central potion as mothers, while men have been seen as marginalised in their position as husband/fathers (e.g. clarke [1957] 1974; smith 1996). however, later research has shown that caribbean men are in various ways integrated into matrifocal kin networks as fathers, brothers, partners, uncles, and sons, refuting claims about caribbean male marginality (barrow 1998; härkönen 2016a; philogene heron 2016, 2018, 2019). therefore, although the views about caribbean ‘male marginality’ resemble the discussion on post-socialist ‘crisis in masculinity’, the cuban historical context differs from european post-socialist societies by its specific post-colonial historical legacies, even though they share the socialist influence. moreover, in practice, relationships are often more diverse than such a language of crisis suggests. [7: matrifocality refers to the tradition of afro-caribbean mother-centred kin relations, whereby the role of men as husbands/fathers has often been conceptualised as weak while relationships focus on links between female kin (see e.g. clarke [1957] 1974; smith 1996). matrifocal kinship and the low popularity of legal marriage amongst my interlocutors, draws on historical, colonial hierarchies of gender, sexuality, race, and class in cuba (see martinez-alier 1974; for other parts of the caribbean, see smith 1996). ] based on this discussion, the post-socialist axis of marginalisation seems to be characterised by lgbtiq+ persons, persons engaged in sex work, single mothers on the brink of poverty, and men suffering from a supposed masculinity crisis. however, little attention has been paid to how those persons who do not fit into any of these categories of marginalisation, may still experience exclusion in their kinship relations. such marginalisations are not reducible to any single aspect of people’s lives, but are rather the result of complex, intertwined, and transforming social, political, economic, and legal factors. therefore, understanding people’s experiences of marginalisation in their kin relations in contemporary cuba requires paying close attention to the multiple shifts in relationships during the post-soviet era that have created new marginalisations, but also redefined some older forms of exclusion. detailed ethnographic research provides a productive way to understand such processes. studying kinship in havana this article draws on a total of 24 months of ethnographic research in havana since 2003.[footnoteref:8] i have continuously worked with the same community of people who are low-income, racially mixed (for the most part, afro-cuban) havana residents linked to each other by ties of kinship, love, sexuality, friendship, or as neighbours (see härkönen 2016a). over the years, i have focused on various topics but maintained a continuous interest in issues of gender, kinship, love, care, and sexuality. marginalisations or margins were thereby not the initial focus of my field research but rather something that emerged as a significant issue in the analysis of my ethnographic material (see angrosino 2007). in this article, marginalisation functions as an analytical focus through which i seek to understand the contemporary transformations taking place in my interlocutors’ social relations. [8: i first conducted fieldwork in cuba in 2003-2004 for my master’s thesis (härkönen 2005), then in 2007-2008 for my doctoral thesis (härkönen 2014) and in 2017 and in 2019 for my academy of finland-funded post-doctoral research project ‘wellbeing and social change: body, personhood and care in post-soviet cuba’ (grant number:  294662).] for my cuban interlocutors, their kin relations are of primary importance both affectively and pragmatically in terms of day-to-day survival: kin members are considered one’s most trustworthy relationships that will always provide help if required (härkönen 2016a). in practice, many of my interlocutors’ kinship relations were matrifocal (härkönen 2016a). people strongly valued the connection between a mother and a child and saw the relationship between a father and a child as secondary. at the same time, my cuban interlocutors placed strong value on relations of ‘blood’ (sangre) and less value on relations by marriage. some of my interlocutors lived in classical matrifocal households where many generations of mothers and their daughters, sometimes also sons, live together. elderly women were often in a central position in their kin relations, gathering people around them and gaining respect for the more children and grandchildren they had around them. to understand everyday life in havana, i rely on participant observation, interviews, media analysis, and archival research. participant observation provides an in-depth, micro-level account of everyday life in a community to generate an understanding of macro-phenomena (howell 2018): large-scale political and economic developments shape the lives of ordinary people in various ways at the local level (e.g. besnier 2009: 2). participant observation has allowed me to explore such day-to-day practices that are rarely verbalised in interviews (cf. bourdieu 1990; wolcott 1995), as for example, everyday caring practices amongst individuals. while formal interviews often tend to provide answers that follow social norms (wolcott 1995: 104; briggs 1986), it is important to let people talk about their lives in their own words. i found media analysis a useful way to approach state discourses because cuban media is state-controlled (see rsf 2022), and used archival research to gain more information on historical issues. since ethnographic research greatly depends on lucky encounters, improvisation, and the kindness of our interlocutors, i did not actually ‘choose’ these people as my research participants (cf. cerwonka & malkki 2007; bell 2019). after an initial random encounter with one of my closest interlocutors in havana in 2003, i developed relations with his wider community and introduced them to my research project. my research thereby describes relationships amongst these particular persons, and i do not seek to generalise my findings to all cubans. at the same time, my interlocutors’ experiences provide a particular empirical perspective on the larger sociocultural, political, economic, and legal tendencies that shape people’s lives also in other contexts. structural changes and new inequalities in post-soviet cuba cuba is an interesting place to explore marginalisations and redefinitions of kinship because of its ongoing structural developments that are drastically reshaping individuals’ everyday lives. since the 1990s, cuba has increasingly liberalised its economy and opened to global capitalism and influences. during raúl castro’s presidency (2008-2018), many consumption items, professions, and forms of private commerce were liberalised from their earlier state regulation simultaneously as new products and foreign investors entered cuba. under the current, miguel diaz canel’s presidency, the cuban government has re-installed the island’s official commitment to socialism via the new constitution of 2019. nevertheless, the new constitution has simultaneously expanded the privatisation of the cuban economy (semple 2018; augustin 2019a). the roots of cuba’s contemporary economic and political situation are in the island’s socialist history. when cuba started to nationalise foreign companies and declared as openly socialist, the united states government placed on cuba an embargo that started in 1960. cuba’s economy became heavily dependent on the european socialist block. when the soviet union disintegrated, cuba fell into a severe political and economic crisis, losing 70% of its foreign trade (eckstein 1994: 88-91). heightened monetisation, increased economic liberalism, and intensified globalisation started to shape life on the island, at the same time as local people suffered from hunger, electricity cuts, and deficiencies in all areas of life (azicri 2000; eckstein 1994). the country was opened to international tourism and private commerce, black market deals were widespread and foreign remittances became an important source of support for those privileged cubans who had kin abroad (eckstein 2004). these changes eroded the previous socialist egalitarianism and intensified inequalities of race and class that have their roots in pre-revolutionary times (de la fuente 2001a, 2001b; martinez 2013; bastian 2018). in pre-revolutionary cuba, racialised inequalities were severe because of a legacy of spanish colonialism, plantation slavery, and the united states governed republican period (martinez-alier 1974). the afro-cuban population suffered many forms of discrimination and poverty at the same time as material wealth was concentrated in the hands of a white minority (lewis et al. 1977a, 1977b; butterworth 1980; de la fuente 2001c). in the name of social justice, the 1959 cuban revolution sought to equalise such differences and improve the living conditions of the poorest parts of the population, with many of the early revolutionary policies benefiting especially them (eckstein 1994: 149-157). in contemporary cuba, however, inequalities have again intensified. it is against these historical, economic, legal, and political processes that i conducted my recent research on wellbeing, care, and social change in havana residents’ everyday life. in contemporary cuba, as the state continues to dismantle its contributions in many areas of life, there has been a shift from the earlier socialist ideology emphasising state nurture from cradle to grave, towards more monetised and individualised demands for everyday survival. as is typical for socialist countries (ledeneva 1998), cuba continues to have a sizeable informal economy. constant economic shortages, low official salaries, and deficiencies in state services lead to corruption (bak 2019) and economic activities outside of the state legislation, both because of basic survival and new desires for consumption and luxury (daigle 2015; hodge 2005). since cuba’s opening to international tourism in the 1990s, sex work has grown significantly. while cuban women are probably the most visible practitioners, there are also male sex workers, and such engagements take place amongst both heterosexual and lgtbiq+ persons (hodge 2005; cabezas 2009; stout 2014). however, to my knowledge, none of my interlocutors were engaged in sex work, although two women had been engaged in relatively long-term relationships with foreigners, one resulting in marriage and migration to europe. during the post-soviet era, the ubiquity of pragmatic considerations shaping intimate relations has blurred the boundaries between different kinds of relationships, often intertwining affective and material concerns (cabezas 2009; stout 2014; härkönen 2015, 2019; see also andaya 2013). since many aspects of cuba’s new economy rely on sexual-affective engagements, the importance of youth, beauty, and racialised ideas of attractiveness have become increasingly important for providing avenues for social mobility (cabezas 2009; daigle 2015; härkönen 2016a: 17-19, 74). these changes create tensions in intergenerational relationships. many older people felt that the 1990s had brought a general ‘loss of values’ that materialised in unruly sexuality amongst younger people, aggressive materialism, and rising crime rates (see also andaya 2013). these changes point to how cuba’s large-scale transformations create gendered and sexualised inequalities of class, race, and age that sometimes result in new social problems. such shifts crucially shaped the lives of my interlocutors, as i will show below. in some ways, elderly habaneros seem to be correct in their view of havana’s growing crime rates during the last few years (cf. grant 2016). it is difficult to gain exact information on crime rates because cuba does not publish official information or statistics on crime, and it is not discussed in the local media. for this, information about crimes spreads mostly through gossip (härkönen 2021). however, in the 1980s, some cuban crimes gained international publicity because the island experienced major drug and corruption scandals that lead to severe punishments amongst high-level officials. to counter such tendencies, in 1986, fidel castro began the ‘rectification’ (rectificación) process that aimed to get rid of social problems such as excessive materialism, corruption, economic inefficiency, and a lack of work morality (azicri 2000: 53-54). nevertheless, in the 1990s, these problems only grew, when the socialist world around cuba crumbled. there was a general increase in all crime and theft in particular (eckstein 1994: 59, 122-125). the cuban government tried to abolish both corruption and theft from state workplaces and took means to prevent international crime and money laundering, but both corruption and theft were widespread (azicri 2000: 96-99). in the 1990s, cuba’s main newspaper granma defined criminal and other illegal actions as being “against the essence of the socialist system” (azicri 2000: 96-97). cuban punishments are typically harsh, and many crimes may lead to long incarcerations. however, many cubans are constantly involved in minor illegalities in their everyday life, because it is practically impossible to get by without, for example, sometimes engaging in black market deals. in general, since the 1990s, the loosened relationship between the state and individuals (fernández 2000) has created in cuban society intensified inequalities and structural and social shifts, which have led to new marginalisations, but also to new openings towards a socially and culturally more diverse society (e.g. allen 2011). i will now explore such social shifts through a focus on an ethnographic case from the life of a low-income, elderly woman whom i call regla.[footnoteref:9] [9: all the names of my interlocutors are pseudonyms.] regla: becoming socially marginalised in contemporary havana regla is a 75-year-old afro-cuban woman who has three children. she lives in a poor, mostly afro-cuban neighbourhood in a deteriorating, two-room apartment with her 40-year-old son and 27-year-old grandson. one of regla’s daughters migrated to miami in the 1990s and occasionally sends her mother remittances. the other daughter, whose son regla has cared for since childhood, has little contact with regla.[footnoteref:10] earlier in life, regla enjoyed a privileged position in socialist cuba as an official for the cuban communist party. however, in contemporary cuba, the relevance of such socialist hierarchies has eroded, and regla no longer enjoys the prestige and practical advantages that her position used to bring her. instead, she is dependent on the island’s new economy through her daughter’s remittances and through small monetary contributions from her son, who works in the tourism industry, a privileged sector of the economy where employees are paid a higher-than-normal salary. [10: i never met this daughter and regla never talked about her. one of regla’s neighbours told me that the daughter is ‘crazy’ but i did not manage to find out why this neighbour thinks so. ] although regla seems to have both kin members and economic support around her, there are factors that make her situation precarious and threaten to marginalise her in her relationships. regla’s neighbours pointed out to me that her apartment is in such a state of deterioration that they suspected her migrant daughter to be neglecting her: “her house is so bad and small; i wonder whether her daughter is sending her money to fix the house.” regla’s son miguel also often fails to contribute money to his mother. on the contrary, regla often needs to give him money when he spends all his salary in search of his own pleasure. miguel was also failing regla’s expectations in other ways: he did not have a partner or a child.[footnoteref:11] on local standards, only as a parent do both men and women reach proper, gendered adulthood (härkönen 2016a). already during my fieldwork in 2008, caridad, another neighbour of regla’s, commented: “miguel is older, he is already 30. […] regla is crazy for miguel to have a child and it seems that he is also thinking about it.” caridad’s daughter yadira, however, was pessimistic about miguel’s chances of finding a partner: “i’ve never seen miguel with a woman; it’s been two years that he hasn’t had any girlfriends, because he is shy, and he can’t dance.” miguel was also disadvantaged by his dark skin colour. due to the historical privileges of light skin, many of my female interlocutors preferred lighter-skinned men especially when they contemplated on having children (härkönen 2016a: 46; fernandez 2010; martinez-alier 1974; yelvington 2001: 242-247). [11: miguel wanted to have a partner and children but he had not been successful in his relationships.] in contrast, regla’s grandson yosuel had always been his grandmother’s pride and joy due to his good looks, light skin colour, bright mind, and gentle manners.[footnoteref:12] nevertheless, a few years before my 2017 fieldwork, yosuel had become his grandmother’s biggest source of sorrow. yadira told me that some years before, yosuel and two other men had robbed their mutual friend of his dvd player in a violent manner. they had threatened their friend with a knife and tied him to a chair at his home. everybody in the neighbourhood was shocked at how yosuel, who had always been a polite young man, was able to commit such a violent act, particularly against a friend. yosuel went to prison for six years and, according to the neighbourhood gossip, came out as openly bisexual, engaging in relationships with men and neglecting his girlfriend and child, who had been born while he was in prison. according to regla’s neighbours, yosuel’s behaviour caused intense shame and suffering to his grandmother: [12: yosuel is significantly lighter than miguel. cuban ideas of race are complexly organised hierarchically along a continuum of fine-tuned differences. racism surges in many instances (see de la fuente 2001a, 2001b, 200c1) although cubans’ definitions of race are contextual and depend on multiple factors drawing on a person’s behaviour, manners, clothing etc. (his or her habitus in bourdieu’s terms). see fernandez 2010; roland 2011.] regla is like this [shows her finger to connote being skinny like a stick], she hasn’t gained any more weight.[footnoteref:13] […] he was in prison and there he became maricon [an offensive term for a homosexual]. and now he has separated from his wife, for sure, if he goes around doing these things, in the mariconada [an offensive term referring to ‘queer enclaves’].[footnoteref:14] [13: my interlocutors saw a person’s weight as an indication of their well-being (härkönen 2016b).] [14: in havana, certain locations, such as parts of the beachside avenue malecón, are considered to be ‘queer enclaves’ (see browne 2022). there are also private parties and other gatherings (morad 2014). as this neighbour knows little about such issues, she makes only a vague referral to the ‘mariconada’. i use the word ‘queer’ here to translate my cuban interlocutors’ statement to avoid the offensive tone of the spanish original term. queer conveys the double meaning of the word as something possibly tainted but also as “opening epistemologies and ambiguous (re)contextualisations of experiencing outside of heteronormative analytical assumptions” (boyce, gonzalez-polledo & posocco 2019: 8). ] in contemporary cuba, where only the privileged few have access to desired commodities, inequalities corrode trust and friendship, turning friends into violent enemies. in such an environment, there are shifts in understandings of sexuality, creating simultaneously more room for diversity, but also new problems in kin relations. the fact that yosuel not only went to prison but also expanded his sexuality into new directions, created a conflict with his grandmother. regla and her kin members became a target for their neighbours’ malevolent gossip because yosuel’s behaviour clashed against long-standing views of sexual and gendered respectability in the neighbourhood. amongst my cuban interlocutors, ideas of gender were to a degree shaped by local notions of sexuality in such a way that a man had to display a strong sexual interest in women to be seen as a properly masculine, macho man (härkönen 2016a; lundgren 2011). if a man is not seen with women and does not bring girlfriends home, his position as an assertive, heterosexual man is quickly questioned. caridad explained this idea to me: caridad: “norma’s son wilber is gay.” hh: how do you know that? caridad: “everybody knows it.” hh: does norma know it? caridad: “no, i don’t think they know it at home. but how can you have a son who is already over 30 years old and has never had a woman?” engaging in same-sex relations was seen as compromising a man’s masculinity. caridad stated: “here now there are many men of whom you think that they are men (hombres), but then they go around with men. they go around with [both] men and women, and you think that they are interested in you, but then they are maricones [homosexuals], here that has gotten fashionable; bisexualism.” while in practice, many cubans’ sexual engagements are more flexible than what caridad presents in this statement (e.g. allen 2011), yosuel’s relationships with men still compromised his masculinity in the community. the emergence of more public forms of sexual diversity in cuba seemed to not have alleviated my interlocutors’ rejection of such practices and relationships. because of yosuel’s actions, regla suffered shame and ridicule by her neighbours in ways that increasingly marginalised her in the community. as factors that may both bring shame to a person and their kin, non-heteronormative sexuality and a prison sentence differ from each other, although they may at times work complexly together, as happens in this case. law as an active regime of punishment, through the imposition of prison sentences, was a relatively common occurrence amongst my male interlocutors – i personally know at least seven habanero (havana resident) men who have been in prison (in contrast to one woman) and have heard stories of many more from my interlocutors. while such individuals were in general somewhat frowned upon, having been in prison did not appear to form any permanent stigma on a person. however, at other times, a prison sentence cast a more severe shadow on a person. this was the case, for example, of a man who had killed another man in a fight. my interlocutors often referred to him as ‘that criminal’ (este criminal). however, the role played by sexuality is more complex. when people suspected a man of having engaged in non-normative sexual practices in prison, this seemed to automatically stigmatise him in no easy proportion to the crime that he had committed.[footnoteref:15] in this sense, the shame that both regla and yosuel experienced because of his sexual behaviour was more severe than the mere social disobedience signalled by his prison sentence, as it was tarnished by a specific flavour of the loss of his position as a masculine man. caridad said: [15: cf. warner (1999: 19, 27-28), who argues that sexual stigma taints a person permanently, regardless of the acts that they have committed.] he, who always was a pretty boy, in jail he became like that. […] it is one thing that he [yosuel] went to jail, but it is a whole other thing how he came back; he returned transformed. now […] he goes around with the maricones. they transformed him in the prison. in this statement, prison emerges as a marginal place that has transformative potential since it allows new and more diverse understandings and experiences of sexuality and identity to resurface. the fact that my cuban interlocutors spoke of people who engage in non-heteronormative sexual practices as somewhat morally suspicious (even though they could be totally friendly in their face-to-face dealings with them), suggests that non-heteronormative sexualities are more generally marginalised amongst my interlocutors, not only when such practices are connected with a prison sentence. for example, one interlocutor stated of her bisexual neighbour: “she is very bad, she is bisexual, they are the worst there is, she doesn’t care for her child, what is a woman who doesn’t care for her child?” here this interlocutor represents her neighbour’s sexuality as marginalising her in the neighbourhood because, in her view, it intertwines with her failure to live up to the ideals of good motherhood.[footnoteref:16] [16: cf. browne (2022), who shows how committed kin relations many lesbian and bisexual women have.] indeed, understandings of gender, kinship, and sexuality play a central role in these social processes of marginalisation. regla is marginalised in her neighbourhood due to her grandson’s legal violations and his unconventional sexuality. one of regla’s neighbours stated: “they are all horrible… i don’t like those people at all, the mother is an unbearable oldie and […] [they are] all weird creatures!” regla’s position was further marginalised by her son miguel’s failure to have a partner or a child, which would have allowed her to enhance her social position as a mother and a grandmother. the fact that she had two grandchildren somewhat alleviated her position, but they as well were in a way absent: her granddaughter was away in miami and yosuel was in prison and not fitting into the social conventions of neighbourhood respectability. despite her difficult situation, regla has found new forms of support. during my fieldwork in 2017, she started to visit a local, state-run elderly care home, where she was able to socialise and have lunch. however, she was not happy with the facilities at the care home: she said that the food was bad, the facilities deficient and the staff rude. while i am unaware of how regla thought that elderly care should be organised while she still had a strong belief in socialism, it seems likely that her opinion reflects the more general shift amongst cubans from trust in state institutions into trust in personal relationships (cf. fernández 2000), simultaneously signalling a disillusionment with the contemporary socialist state. however, even though she was displeased with the forms of care she received from the cuban state, regla had some sources of comfort. she told me that once a week, officials from the catholic church visit the state care home and take good care of the elderly: maria [a catholic church employee] takes care of us, maria organises good activities. […] she comes to see us, she teaches us catechism, […] she takes us on excursions, and sometimes she takes us out for lunch, to eat in good restaurants. […] on birthdays, they give gifts. […] every thursday, the church comes to us. […] there is a lady who comes to see the elderly and she is very friendly, very affectionate. because of this attentive treatment from catholic officials, regla started to visit her local church regularly. regla is someone who during the previous socialist order, to a large degree, followed the social and political norms for achieving a respectable position: she had gained a politically significant placement in her work as a party official, and she was a mother and a grandmother to three children and two grandchildren. however, she becomes marginalised in her kin relations and cuban society more generally, when her kin members fail to conform to local notions of gendered, sexualised, and, in the case of yosuel, legal respectability in the community, causing her to experience a new form of exclusion in her relationships. marginalisations of kinship, structural inequalities and new forms of support the social processes, through which regla came to experience unexpected marginalisation from her previous social world, are complexly shaped by cuba’s contemporary large-scale political, economic, legal, and sociocultural changes. in particular, they are intertwined with the intensifying inequalities of race and class in contemporary cuba and with shifts in understandings of sexuality. in post-soviet cuba, heightened inequalities combined with novel possibilities for consumption, erase older values of egalitarianism and challenge what is perceived as traditional understandings of morality. these political, economic, legal, and sociocultural shifts have simultaneously introduced to cuba more crime, conflicts, and problems, but also opened up new opportunities for sexual and social diversity. regla’s story shows how such large-scale transformations shape individuals’ intimate kin relations. both popular and media discourses conceptualise the neighbourhood where regla lives, as a problematic area with an especially high rate of crime and poverty (see de la fuente 2001c). the remittances that regla receives from her daughter and the earnings that her son can make in the tourist industry, are both significantly smaller than those of many white, historically privileged cubans (hansing & hoffman 2019). unlike regla and her kin, many white cubans can draw on well-established relatives in the united states to provide them with money and goods to start new business ventures (cf. härkönen 2017). these racialised inequalities negatively affect regla’s and her relatives’ lives and lead to new social problems when disadvantaged young cubans yearn to have equal possibilities of consumption as their wealthier counterparts. still, in the margins, people find new sources of support. regla is comforted by the catholic church; an institution that itself has been historically marginalised in cuba but has for a long time been a source of spiritual support to latin american women (wolf 1958; safa 1990; rodriguez 1994). regla’s grandson, on the other hand, lands himself in prison by following traditional norms of male camaraderie and machismo, but ends up breaking them through his transgressive sexuality. at the same time, it is likely that yosuel finds new sources of support in his sexual relations, on the margins of heterosexist understandings of masculinity (cf. allen 2011). however, the fact that i was unable to talk with yosuel directly during my last two research trips, further exemplifies his marginalised position. yosuel did not spend his time in the domestic space of his home and the neighbourhood, where most local kin relations gather but rather elsewhere, in the margins of social respectability and sometimes also of the law, in the ‘mystical’ ‘queer enclaves’, which my other interlocutors tended to avoid. as my interlocutors saw prison as the site that had created a significant shift in yosuel’s sexual preferences, the prison emerges as a site characterised by both of these contradictory aspects of marginality. on the one hand, it is an instrument of state repression and retribution, on the other, it is a site that allows for new kinds of male camaraderie and sexualities to arise. as the case of regla and yosuel shows, such shifts in understandings and practices of gender and sexuality may create wider changes in social relations that go beyond the individual engaging in new experiences. as scholars have noted in other contexts (patico 2010; utrata 2015; perheentupa & salmenniemi 2019), the post-socialist shifts and ‘crises of masculinity’ often seem to create problems for women, who end up suffering the effects of men’s actions in their everyday lives and blame men for failing to live up to their expectations. at the same time, the cuban case differs from these accounts from post-socialist europe because regla does not directly blame the men in her life for her marginalisation (even though her neighbours see regla’s masculine kin as the major cause of her misery), nor does she see them as the solution for changing her life (cf. ibid.). this suggests that she has a different kind of understanding of structural injustices than the one described in the studies (ibid.) of post-socialist europe. however, this sense of structural injustices does not automatically expand my interlocutors’ understandings of gender and sexuality, as is shown by the fact that many habaneros’ views are strongly heterosexist. at the same time, the political climate in cuba is a world away from the neoconservative turn in parts of post-socialist europe, although it is open for debate, the extent to which ordinary people like my interlocutors embrace the official discourses of feminist and lgbtiq+ rights (castro espin 2011; roque guerra 2011; hamilton 2012: 49; browne 2018a, 2018b). still, the official political opening towards sexual diversity has to a degree shifted the logics of marginalisation in kinship and sexuality, allowing more diverse practices, relationships, and understandings of identity to develop. however, if the catholic church emerges as a significant source of support for persons like regla, who are disillusioned with both the socialist state and their kin relations, it may in the future open a way toward more conservative and narrower views of kinship, gender and sexual relations. during the post-soviet era, the catholic church stepped in as an important provider of social services in cuba as a way to assist the deficient state services (anonymous 2021). as the catholic church and other institutionalised churches may gain more ground in cuba in the future (cf. cambell romero 2021; anonymous 2021), it is possible that, like has happened in post-socialist europe, they will bring along a more conservative understanding of gender, kinship, and sexuality, counteracting the revolution’s earlier policies emphasising the importance of sexual diversity and intensifying both old and new forms of marginalisation. this brings us back to the question about the political potential of the marginalised to challenge and redefine the normative structures of power that discriminate against them, discussed at the beginning of this article. while regla and her male kin all find some sources of support in the margins, regla’s experiences do not suggest that the margins would allow her structural agency to redefine the terms of her marginalisation. regla’s situation calls for us to rethink the premises under which being in the margins allows the excluded persons to challenge normative structures and criticise dominant social categories. my ethnography suggests that the possibilities for a more direct political agency are complexly shaped by intersecting hierarchies and meanings of gender, sexuality, age, race, and class. while regla becomes marginalised largely because of the actions of her male kin, they seem to be able to get by, (however precariously), whereas she appears to have fallen into a void of social neglect and shame, with few forms of support. shifting experiences of marginalisation if we think about regla’s and her kin’s experiences in terms of wider questions of marginality, they show that large-scale changes carry the potential to transform individuals’ intimate experiences of exclusion. in post-socialist societies, such changes are often particularly poignant, as they undergo profound practical and ideological changes with mixed legacies of socialism and new capitalist and globalised influences (verdery 1996; burawoy & verdery 1999). the studies from post-socialist europe suggest that people’s experiences of marginality have shifted in terms of gender, kinship, and sexuality. on the one hand, previously marginalised groups have gained a more socially and culturally accepted position in society, creating space for new forms of visibility, identity, and relationships for those who do not conform to traditional understandings of gender and sexuality (béres-deák 2021; mizielińska & stasińska 2014, 2019; szulc 2012; binnie & klesse 2011; lambevski 2011; hašková & sloboda 2018). on the other hand, the rise of conservative politics and a lack of full legal rights for lgbtiq+ persons have perpetuated forms of gendered and sexualised marginalisation, although people have also invented ways to sidestep such regulations (béres-deák 2021; mizielińska & stasińska 2014, 2019; zhabenko this issue). these dynamics between conservative and new, more liberal tendencies in shaping marginalisations are complicated by how economic inequalities may mitigate (mizielińska & stasińska 2019: 7-8) or intensify (o’neill 2014) people’s experiences of marginalisation. this highlights the need for an intersectional analysis to understand how various structural and social factors shape individuals’ experiences of marginality. in post-soviet cuba, large-scale changes have in a similar way, changed intimate relations, and created for individuals both new opportunities and new experiences of marginalisation. many scholars note, how the “widespread commodification of sex and intimacy” (stout 2014: 173) has redefined cubans’ experiences of both heterosexual (cabezas 2009; daigle 2015) and lgbtiq+ (stout 2014) sexuality, resonating with wider changes in social relations. on the one hand, those involved in the sex trade have emerged as new targets of marginalisation (cabezas 2009: 14; daigle 2015: 10-11; stout 2014: 52, 178-179). on the other hand, new economic and social possibilities enabled by foreign tourism and the newly intensified globalization have offered traditionally marginalized people new avenues for social, economic, and geographical mobility and new ways of gaining recognition (cabezas 2009; daigle 2015; allen 2011). however, such possibilities are not equally divided; it is particularly young cubans who are able to reap the benefits of cuba’s changing sexual economy, at the same time as global capitalism has mixed old forms of oppression with new opportunities (cabezas 2009: 2-3, 6; daigle 2015: 24; see also allen 2011). several scholars see such practices as enabling cubans’ new forms of subjectivity and a way to resist state policies (cabezas 2009: 17; daigle 2015: 11, 21-11; allen 2011: 3, 193-194, 2012). cuba’s new opening towards sexual diversity has also created more room and visibility for transgender and other non-gender-conforming cubans at the official political level (anonymous 2015; castro espin 2011). nevertheless, in practice, many still face severe social discrimination and limited job opportunities (saavedra montes de oca 2017; stout 2014: 77-79; see also allen 2012). thereby, while there have been shifts in state policy towards previously marginalised people, in practice, some older forms of social marginalisation persist. legal changes have played a part in these shifts in cubans’ experiences of marginality during the post-soviet era. after many years of state persecution and illegality (murray 1999: 575-576; leiner 1994; lumsden 1996), during the post-soviet era, legal changes have created more room for sexual diversity, for example, through such processes as the legalisation of sex-reassignment surgeries as a part of the public health care system in 2007 (allen 2011: 191-192; gorry 2010). however, there are still significant deficiencies in legal rights for lgbtiq+ cubans, such as the non-existence of same-sex marriage and the lack of possibilities for assisted reproduction (browne 2018a). importantly, law has an active presence as a punitive factor and it plays a role in defining the official parameters of morality, contributing to the emergence of new marginalisations (cf. stout 2014: 52-53, 173-174; daigle 2015: 119-120). in the case of my interlocutors, cuba’s legal changes have opened for them new possibilities of sexual diversity and of seeking support from non-state actors, when previously criminalised or rejected practices, institutions, and ideas have become more accepted in cuban society. in this sense, legal changes have the power to not only create new marginalisations but also revoke earlier exclusions. at the same time, some such practices, identities, and understandings remain socially ambiguous and even rejected, as exemplified by regla’s neighbours’ negative attitudes toward sexual diversity. legal change alone is thus not capable of fully changing attitudes, although it may encourage people to embrace previously marginalised understandings, as is exemplified by both regla’s and yosuel’s experiences. at the same time, the role of law in creating marginalisations is ambiguous, as amongst my interlocutors, many illegal things and practices were socially accepted and even a prison sentence is not an automatic reason for social exclusion. this highlights the role of sexuality as a marginalising factor, and the intertwining of lawlessness and non-conforming sexuality as creating social marginalisations (cf. stout 2014: 52-53, 173-174) that are so powerful that they extend from one person to their kin. my ethnography further shows, how legal, economic, and social factors converge in shaping individuals’ experiences of marginalisation. poverty and living in a disadvantaged neighbourhood bring to regla’s life crime and social problems. my interlocutors’ experiences show how new inequalities have come to shape people’s intimate experiences of the kinds of social bonds that matter the most to them, creating unexpected marginalisations in kin relations. my findings resonate with those of noelle stout (2014: 172), who argues that instead of highlighting new possibilities for lgbtiq+ visibility, her ‘queer’ cuban interlocutors emphasised how the island’s economic restructuring had made them vulnerable to new social inequalities that “threatened to undercut the things that one had always taken for granted – sex, love, family, and social bonds.” in a similar way, cuba’s intensified inequalities have caused my interlocutors to experience exclusion in such relationships that were supposed to be secure and redefined their taken-for-granted kin relations. at the same time, regla’s experiences of marginalisation differ from the other persons that have suffered legal, political, and social marginalisation in cuba – such as lgbtiq+ persons and sex workers – whose experiences draw on more long-term historical exclusions. lgbtiq+ cubans were discriminated against in many ways during the earlier revolutionary years (leiner 1994; lumsden 1996; hamilton 2012). sex workers were marginalised in pre-revolutionary cuba, and in post-soviet cuba, have represented a profession that was officially eliminated during the revolutionary process (lewis et al. 2003), with the revolution promising to abolish such (and other) forms of marginalisation (eckstein 1994: 130, 135-136, 149-155). in the case of such persons, the contemporary forms of marginalisation, therefore, draw upon historical antecedents. regla’s experiences are different because earlier in life, she was exemplifying idealised socialist normativity. as a heterosexual mother of three children and a grandmother and an official of the cuban communist party, she could expect to lead a safe, ‘normal life’ during her old age. therefore, regla’s experiences of exclusion represent something new; even those who were accustomed to a position of normality may face sudden social exclusions in the post-soviet era transformations, highlighting the unpredictability of life in contemporary cuba. my ethnographic research material shows that large-scale changes create shifts in people’s experiences of marginalisation and redefine social relations. such changes are produced by the intertwined effect of political, economic, social, and legal transformations that cause individuals to experience changes in their intimate, and social relations, creating new tensions and problems, but also new opportunities for relationships, understandings of identity, and sources of support. such marginalisations may create unlikely alliances, as when a former communist official comes to embrace the catholic church. through such unexpected associations, large-scale changes carry the potential to create shifts in the categories that define individuals’ understandings of identity. in this way, marginality offers us a view on the “instability of social categories”, as tsing suggests (tsing 1994: 279). regla is marginal because she is in a “zone of unpredictability” (tsing 1994: 279) when her life has not followed the normative models she had been pursuing, making her marginality unpredictable and unusual. however, for regla, the power of such shifts to create new forms of identity and agency (cf. tsing 1993; butler 2016) is ambiguous: while she may eventually come to embrace a new identity because of her positive experiences of the catholic church, at the time of my fieldwork, her engagement with the church was rather pragmatic. most importantly, even though she is unhappy with contemporary state policies, she has little power to change her situation or create structural change in the community. this suggests that not all category-crossings lead to a position of agency and a new identity. being elderly, poor, and living in a disadvantaged neighbourhood limits a person’s options, and in the absence of supporting kin members, people turn to the only source of support available to them, which in this case, is the catholic church. in this sense, such marginalisations of kinship may contribute to the rising popularity of the catholic church in cuba (campbell romero 2021; anonymous 2021) as they may offer persons in a precarious position much-needed sources of support, care, and pleasure in a difficult situation. at the same time, such social and kinship marginalisation may drive people towards conservative understandings, in contradiction with political efforts to enhance the acceptance of sexual and gender diversity in the name of social justice. this may lead to profound new inequalities, marginalisations, and redefinitions in the fields of gender, kinship, and sexuality. conclusion my ethnographic research suggests that large-scale political, economic, and sociocultural changes create redefinitions and shifts in social relations, marginalising some people in their kin relations. new desires, openings and exclusions create tensions in kin and gender relations. sometimes such kinship anxieties resonate with wider social stigmatisations, for example when new understandings of sexuality clash with normative definitions of masculinity or femininity. in such cases, persons are at times marginalised not only in terms of kinship but also of the law, the state, and wider understandings of sociability. at the same time, such changes also open new opportunities and sources of support for individuals: in cuba, people have experimented with sexual diversity and found comfort in the catholic church, both of which were officially rejected as corruptive to socialist morality during cuba’s revolutionary past. the re-emergence of the catholic church as a provider of support and comfort to the marginalised relates ambiguously to wider ideas of kinship, gender, and the state and wider understandings of social justice. in cuba, the catholic church appears as a provider of care for those persons who are failed by both their kin relations and the state. nevertheless, this revived position of the cuban catholic church may bring along conservative ideas of gender, kinship, and sexuality, as has been the case in other post-socialist contexts (cf. mishtal 2009, 2015).[footnoteref:17] however, greater room for sexual diversity has emerged at the same time, although the still in many ways discriminative stand towards lgbtiq+ lives amongst many cubans, contributes to marginalising the former from kinship. sometimes, like in the case of regla, such stigmatisation extends from one individual to their kin members, marginalising the entire family and leaving especially its elderly members feeling lonely and neglected. this, therefore, suggests there are contradictory processes going on, as understandings of gender, kinship, and morality diversify and gain new global influences in cuba: on the one hand, offering space for more conservative thinking, and on the other, new space for non-conforming sexual and gender relations, experiences, and subjectivities. [17: the rapidly expanding protestant congregations present an even greater risk in this regard.] in contemporary cuba, among structural developments, the social margins are being redefined. those who used to be at the centre may become marginalised and those who have been excluded earlier may find new, shared experiences, simultaneously as all of those in the margins may encounter unexpected sources of support. however, it is ambiguous whether people’s experiences in the margins necessarily allow them opportunities for political action, as tsing (1993) and butler (2016) suggest in other contexts. in their article on post-socialist russian self-help groups, perheentupa and salmenniemi (2019) argue that in post-socialist contexts, where political agency is often limited, in their search for better lives, people focus on individual transformation instead of direct political action. my cuban interlocutors’ sources of support – the catholic church for regla and most likely, the lgbtiq+ community for yosuel – could be seen as such forms that primarily promote personal transformation rather than direct political change. while the catholic church seeks spiritual commitment from its members, participation in lgbtiq+ communities may create shifts in a person’s sexual subjectivity (cf. zhabenko, forthcoming). however, the degree to which individuals embrace such new messages of selfhood is ambiguous; sometimes people may have a relatively pragmatic relationship with the various sources of support that allow them to alleviate their marginalised position. the margins may thereby create space for manipulation and contradictory understandings at various levels coming across as a social space where new forms of support, identity and alliance become available. my ethnographic material thus shows a different relationship amongst the margins, agency, state power, and structural hierarchies than the one discussed at the beginning of this article, whereby the margins create a social space from which to redefine normative categorisations, understandings, and structures of power. rather, my ethnography shows that not everyone in the margins is capable of finding alternative forms of political and social agency and questioning normative views but rather that people’s possibilities for agency are intersectionally shaped. in regla’s case, gender, age, race, and material wealth all intertwine to constrict the power, energy, and even desires that she would have to manipulate the dominant structures.[footnoteref:18] instead, it shows the fragile possibilities for subjective glimpses of agency and her very limited possibilities for creating structural change, burdened by the materialities of day-to-day survival. 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manuscript. _______________________________________________________________________________________ 2 _______________________________________________________________________________________ 2 mauthner are research data a ‘common’ resource? ___________________________________________________________________________ feminists@law vol 2, no 2 (2012) ___________________________________________________________________________ are research data a ‘common’ resource? natasha mauthner[footnoteref:1]* [1: * reader, university of aberdeen business school, aberdeen, scotland, uk. n.mauthner@abdn.ac.uk ] joining the conversation i join this conversation on ‘the commons’ as a feminist qualitative researcher in the social sciences who has been caused to think critically about the notion of research data as a common resource as a result of my own research practices and experiences. in 1995, the economic and social research council (esrc) introduced its first datasets policy. this policy required grant-holders to offer their research data for deposit within an archive within three months of completion of their project, unless there were convincing reasons for not doing so. the following year, a colleague and i applied to the esrc for a three-year ethnographic study of work and family life in the oil and gas industry in north east scotland. the project was to involve fieldwork in families, communities, schools, and oil companies including onshore offices and offshore oil platforms. we would be interviewing mothers, fathers, children, human resource managers, health professionals and community figures. we had to complete a section of the form on ‘data collection and provision for the preparation and archiving of datasets’, in which we had to outline any difficulties we envisaged in making the data available for secondary research. this is what we wrote: we have some concerns over the confidential nature of data we anticipate collecting from both the families and the oil companies, particularly given that the proposed project would be a very focused study on a very discrete geographical area. however, provided the material was anonymised and all identifying features removed, and the research participants give their informed consent, we would be happy to offer our dataset to the data archive or any other data centre and make it available for secondary research. in our eagerness to comply with esrc requirements, we agreed, in principle, to sharing our research data. yet even as we wrote this statement, i had nagging questions about this policy, its underlying assumptions, and its potential effects on my research practices and participants. i knew from my previous research on mothers’ experiences of postnatal depression how sensitive these women were to what i was doing with their stories. part of their motivation for taking part in my study was so that they, through me, could bring their voices and stories out into the open. they wanted other mothers to know about what has largely remained an untold and hidden story about motherhood: that one in ten mothers experience postnatal depression after the birth of their child. at the same time, they were very clear that they did not want their story out there in its ‘raw’ form because their greatest fear was being identified. these were women whose public face of happy motherhood concealed inner despair and a deep sense of guilt and shame (mauthner 2002). my challenge was an intertwined ontological, epistemological and moral one: to establish a relationship with these women that would enable them to speak the unspeakable, to tell me things that, as many said, “i’ve never told anyone before”; to discover and make sense of stories that went against the grain of hegemonic understandings of motherhood; to create the moral and relational conditions of possibility that would allow these women to trust me and tell their stories in the knowledge that i would honour them, and use their accounts in such a way that would neither cause them moral harm nor violate our relationship; and to secure the women’s trust that, although i would be using their stories for my own research and purposes, i would not lose sight of what was also in their own best interests. this challenge required physical, emotional and intellectual effort and investment on my part: skill, time, patience, care, compassion and understanding. i recently had cause to re-listen to the interviews i did with these mothers for a book i am currently writing on the interpretation of interview narratives (mauthner and doucet forthcoming). i had not listened to these audiotapes for 20 years and i was struck by my way of being in these long interviews. in one sense i seem to be doing very little: i ask few questions, rarely interject, and largely let them talk – which they did, at great length, for asking them a question that few other people had put to them, “can you tell me what it has been like for you becoming a mother?”, was like opening the flood gates. yet this apparent passivity on my part obscured a great deal of activity because my practices were focused on communicating to the women that i was listening to them closely and hearing what they were saying with care and concern. i accomplished this through eye contact, holding their gaze, facial expressions, sitting in silence at times, uttering supporting hmms and uh-uhs, and quietly and softly interacting with their babies and toddlers who were often present during the interviews. all of this work for although largely taken for granted, this is the invisible and ‘naturalised’ (see bourdieu 1999) labour that we perform as interviewers and the reason why we often come away from interviews feeling drained and exhausted created the kind of accepting and non-judgemental space that these women had been searching for in their own lives and relationships. and all of this work was ontologically, epistemologically and morally necessary to, and indeed constitutive of, the material-semiotic realities that my research was bringing into being. this labour helped me to discover, and make sense of, the particular stories of motherhood and postnatal depression that i heard. these interviews, practices of engagement, and relationships were not merely neutral tools giving me access to already-constituted and meaningful stories or nuggets of data. rather, they were what and how i was coming to know. it was against this research background that i came to the question of whether research data should be regarded, a priori, as a common resource. my instinctive response at the time of writing the above-mentioned esrc grant application was that the apparently innocuous notion of researchers sharing their data through national or international digital repositories was more complicated than it first seemed. the esrc datasets policy implicitly assumed that research data were pre-formed, given and bounded entities that researchers simply collected. it implied that data could be unproblematically harvested, and reused, out of the contexts and relationships in which they were produced. it assumed that stories and their meanings were given. most importantly, it took for granted the labour, practices and relationships through which data emerge as meaningful entities. it assumed that, for example, the interview labour i outlined above was immaterial and inconsequential, entirely separate and separable from data and meaning. in other words, it assumed that how we produce knowledge bears no relevance to the knowledge that we produce. not only is this notion contrary to one of the most significant philosophical contributions of feminist thinking regarding the inseparability of the ‘how’ and ‘what’ of knowledge production (doucet and mauthner 2008), but it did not resonate with my own experiences of doing research. from my perspective, my knowledge-making practices were intricately bound up with and constitutive of the stories i was hearing and my interpretations of them, and i did not see data or meaning as inherently separate or separable from the contexts in which they were produced. this meant that the very thing that i regarded as constitutive of data and meaning – being-in-relation and all that it entailed and made possible; or what barad (2007: 185) terms “the practices of knowing in being” – was precisely what was being taken for granted and rendered invisible in the notion that research data should be regarded a priori as a common resource. the esrc policy therefore raised challenging philosophical questions for me because it assumed and imposed a model of knowledge-making that was at odds with my own practices. furthermore, this philosophical model implied a set of moral and political assumptions that i found equally problematic. as is clear from the statement we wrote in our esrc application, normative ethical and legal guidelines for data sharing suggest that practices such as seeking participants’ informed consent to share their data and data anonymisation provide ethical, moral, and legal safeguards for data sharing (van den eynden et al. 2011). however, i knew from my research experiences that protecting our research participants was not achieved by following abstract guidelines and principles: it was a matter of understanding what might cause moral harm in the context of the specific human relationships in question. indeed, even the assumption that uninvolved third parties could make ethical and moral judgements about what might or might not harm participants seemed to me like a violation of the participant, the researcher and the relationship between them. this is because participants entrust specific researchers, whom they know, with their stories and in the process implicitly confer upon these researchers (and not others) the moral right to act on their behalf and in their best interests. it follows that it is the researchers involved in a particular project who are best placed to judge whether and how sharing their specific data might potentially harm their participants, threaten their anonymity, breach confidentiality agreements, or violate relationships of trust with participants. yet the esrc policy was assuming that others could, as a matter of principle, make these moral decisions. this in turn raised a further political question: in requiring that researchers share their data, the esrc policy was asking researchers not only to give up the fruits of their labour (the hard-won ‘data’ they had invested themselves in), but also to renounce their moral ownership rights over their data. in a very profound sense, researchers’ labour was being not only rendered invisible; it was being appropriated by others, no longer seen as belonging to the researchers in question, and therefore no longer seen to constitute legitimate grounds for intellectual property or moral ownership rights over the data that they had produced. declaring that research data are to be viewed, a priori, as a common resource is neither an innocent nor a neutral practice in at least two ways. first, it depends on making a metaphysical, moral and political commitment to the illusion of research data’s givenness. the belief or proposition that data are a common resource is only possible if data are treated, as the etymology of the word implies, as ‘given’: if they are viewed as free-floating commodities that are separate from the contexts and relationships through which they are produced; if the labour of data producers, and the moral ownership rights that arise from it, are ignored; and the rights of those who make economic rather than material investments in the production of data are privileged. second, these metaphysical, moral and political commitments are performative: they have effects. severing research data from their entangled webs, from the labour and relations of their production, is ontologically, epistemologically, morally and politically consequential. these breakages, and what they exclude from mattering, make a difference to what we discover about the world and how we discover it. my discomfort with the esrc datasets policy was a response to a radical shift that was taking place in data ownership regimes. the de facto moral ownership rights enjoyed by researchers were being eroded. new discourses and policies were emerging suggesting: firstly, that research data belonged to ‘the public’ and those publicly-funded organisations that finance research and employ researchers; and secondly, that research data should be viewed as a shared, common and indeed global open access resource. as a researcher, i was keen, and indeed felt i had some responsibility, to understand how these shifts might impact on my research participants as well as reconfigure the nature of my research. in this article i want to explore these issues in further detail, and in particular the implicit philosophical framework that underpins, and provides the moral and political justification for, the move towards treating data as a so-called common resource. to begin, i want to trace the emergence of the idea of viewing data as an open access common resource. i then outline the regulatory, policy and legislative mechanisms that have been instituted to encourage and ensure that researchers comply with data sharing requirements, and that are institutionalising new ownership regimes away from research data being treated de facto as private property towards it becoming public property. i also spell out the case being made for treating data as a public good, including scientific, moral, economic and political arguments. i then move on to suggest that positioning data as a common resource is dependent on a cartesian and representational understanding of data, their production, and their use in the making of knowledge. here, i draw extensively on the work of karen barad (2007), feminist, physicist and science studies scholar. her critique of classical cartesian and newtonian metaphysical assumptions helps me reveal the positionality of the assumed universalism of treating research data as a given and a priori common resource. furthermore, her elaboration of an alternative performative, posthumanist, ‘onto-epistemo-ethical framework’, which she calls ‘agential realism’, provides us with a compelling account of scientific practice that allows me to make sense of my own practices as outlined above. barad’s work is therefore of enormous political significance because it renders legitimate knowledge-making practices that are otherwise seen as ‘deviant’ within a normative representational worldview. a further reason why barad’s framework is useful is because it reveals the inevitable inclusions and exclusions that are enacted through our metaphysical, moral and political commitments. this opens up the possibility of exploring the ‘constitutive effects’ of our exclusionary practices, and again, importantly, confers legitimacy on this endeavour. this is what i turn to in the final section of the article. i consider what treating data as a common resource and public good, and the exclusion of the labour and relations of data producers that it depends on, does ontologically, epistemologically, morally and politically. in particular, i suggest that emerging regulatory, policy, legislative and discursive practices reinforce, institutionalise and legitimise power differentials and inequalities precisely along the lines that feminist scholars have been contesting for over four decades. research data as a common resource emergence of the idea that research data are a common resource the notion of treating research data as a common and indeed global resource appears to date back to at least the 1950s, when it was institutionally established through the formation of world data centers (particularly in the geophysical sciences) designed to minimise the risk of data loss and maximise data access (shapley and hart 1982). the 1980s witnessed the more widespread application of this idea within the natural sciences. in particular, genbank was one of the earliest bioinformatics community projects on the internet, promoting open access communications and data sharing among bioscientists (benson et al. 2008). it was established in 1982 by the us national institutes of health and is a comprehensive public database of nucleotide sequences and supporting bibliographic and biological annotation.  its establishment and near-universal use as a public archive have transformed the field of molecular biology and made possible the modern synthetic use of dna sequence data. the scale of the genbank database is a result of a communal decision to archive all dna sequence data, a decision initially introduced by scientific journals (whitlock et al. 2010). by the early 1990s there was an international move towards treating research data as an open, shared and global resource within many fields of the natural sciences (e.g. office of science and technology policy 1991; oecd 1994; national research council 1997). for example, in their study of data sharing in the natural sciences, the us national research council (1997: 10) study noted that “the value of data lies in their use. full and open access to scientific data should be adopted as the international norm for the exchange of scientific data derived from publicly funded research”. regulating research data ownership: data sharing policies and freedom of information legislation the idea of treating data as a common resource therefore first emerged within the natural sciences and seems to have been initially community-led: there were strong and convincing scientific reasons for sharing data; and these were widely recognised and supported by practicing scientists who then organised themselves and their disciplines to create discipline-specific data repositories. in the context of a discussion on ‘the commons’, and the different ways in which this term and concept has been used, it is useful to note here that this approach comprised self-governed bottom-up formed institutions. this contrasts with more recent initiatives (over the past 15 years or so) which have moved away from self to government regulation with data ownership, control and access less a matter for researchers or research communities to decide, and more a matter of government and science policy. this has been accompanied by emphasis placed on large scale, increasingly global, common pool resources that have no clear governance structure. these changes have come about in part because databases of all kinds, not simply those created for research purposes, are being seen by governments as critical scientific and economic resources.[footnoteref:2] the uk government has highlighted their potential in creating “a high quality research infrastructure” (ukrds 2009: 1; see also waller and sharpe 2006; osi 2007; esrc 2008). the international significance of these databases has also been emphasised by the organisation for economic co-operation and development, a key international science policy organisation, which sees them as “an essential part of the infrastructure of the global science system” (oecd 2007: 3). indeed, research data are being viewed as a global commodity, with moves afoot to remove barriers to cross-national data exchange (noble et al. 2011). the availability, development and application of advanced computing and information technology over recent years has resulted in enormous growth in the volumes of data being generated, and has facilitated and enhanced the possibilities of data preservation and sharing. the idea that research data can be treated as a shared or common resource has therefore been seen as relevant to all forms of data, all disciplines and all researchers across the natural sciences, social sciences, and arts and humanities. it has been promoted as a universal norm and constructed as a universal good (see arzberger et al. 2004), and has been widely institutionalised across funding and other research-related organisations within and beyond the uk through the development and implementation of data sharing policies (ruusalepp 2008). [2: the data sharing imperative is seen as relevant to all types of data, including those created for purposes other than research such as administrative data (jones and elias 2006) or patient data (brown et al. 2010). in this paper, however, i focus on research data.] the esrc’s (2010a: 4) research data policy, for example, requires grant holders to make their data available for reuse and can “withhold the final payment of an award if data have not been offered for archiving to the required standard within three months of the end of the award”. universities are also beginning to develop data management plans and strategies requiring their researchers to address, at the outset of their projects, the question of data management and sharing. data sharing is moreover increasingly being seen and defined as ‘good research practice’. it is being incorporated into ethics and research governance frameworks and guidelines issued by universities (e.g. universities of edinburgh[footnoteref:3] and oxford[footnoteref:4]), funding agencies (see sherpa 2009; digital curation centre 2010), professional associations (e.g. statement of ethical practice for the british sociological association), data repositories (e.g. uk data archive (ukda)), non departmental public bodies (e.g. joint infrastructures systems committee), national and international science policy organisations (e.g. oecd), and many other national and international agencies. [3: http://www.ed.ac.uk/schools-departments/information-services/services/research-support/data-library/research-data-mgmt/data-sharing (accessed 25 september 2011)] [4: http://www.admin.ox.ac.uk/rdm/dmp/checklist/ (accessed 25 september 2011)] the introduction of freedom of information legislation in the uk the freedom of information act 2000 and environmental information regulations 2004, both of which came into force in 2005 – are a further means of enforcing data release into the public domain, and engendering a shift away from de facto private ownership towards public ownership. this legislation means that researchers can now be legally forced to release their data. both acts provide the public with a right to access information held by a uk public authority, which includes most universities, colleges or publicly-funded research institutions. the information requested can include research data and must be provided unless an exemption or exception allows an institution not to disclose it. both acts are designed to ensure accountability and good governance in public authorities (rusbridge and charlesworth 2010). to date there have been few legal requests for researchers to share their data. however, two cases are worth highlighting here. in april 2010, mike baillie, a dendrochronologist from queen’s university belfast, was forced to release tree-ring data under the freedom of information act. the information commissioner’s office ruled that queen’s university belfast must release the data to the public because baillie did all the work while employed at a public university. baillie unsuccessfully contested this directive by claiming that the tree-ring data he had collected over a 40-year period were his own personal intellectual property (baillie 2010). in september 2011, the tobacco company philip morris international submitted a series of freedom of information requests to the university of stirling to gain access to research data collected by a team of researchers over ten years exploring attitudes towards smoking amongst 6000 teenagers and young adults. scotland’s information commissioner has dismissed the university’s case for failing to release the information and has asked the university to respond to the demands made by philip morris (christie 2011). it is important to emphasise that the regulatory, policy and legislative changes of recent years represent a significant moral and political shift in relation to the ownership of research data. governments have always played a role in mandating data gathering and exchange for scientific and political purposes, within the context of specific projects (e.g. dean et al. 2008). furthermore, universities, as employers of researchers, have long had legal ownership of research data. however, in practice, researchers have been recognised to have moral ownership over their research data, and governments and universities have rarely exercised their ownership rights. researchers have, until recently, had more or less full control over their research data: they have decided whether and how their data are stored, shared or reused. this has led to a range of practices. the natural sciences have long enjoyed a strong culture, ethic and tradition of data sharing (rin 2009). currently, many science researchers, such as those from the historical and comparative sciences (including geology, paleontology, museology, taxonomy, archaeology, anthropology, history and the archival sciences), make routine use of data collected by others. likewise, in the social sciences, and arts and humanities, establishment and use of archives, preservation of data in the form of personal papers, government records and historical and cultural artefacts, and secondary use of quantitative datasets are all well-established practices (valge and kibal 2007). at the same time, there has been a tendency within the qualitative social sciences to destroy research data (particularly personal data) once they have been analysed and written up (cheshire 2009). this was once seen as good practice. indeed, this is still reflected in data protection policies adopted by funding agencies and universities, policies that are now in tension with data sharing imperatives (carusi and jarotka 2009). whereas research data are now being seen as a priori public and publicly-owned resources, up until recently they were seen as a priori personal or private in nature in two ways: first, they were morally, if not legally, seen to belong to the researchers who generated them; second, in the case of research involving people, the data were seen to belong to the human participants or communities from whence they came. at least one aspect of recent ‘open data’ initiatives, as they pertain to publicly-funded research data, is therefore an institutional shift in data control and ownership away from private and collective (e.g. discipline-based) ownership towards government or public ownership. the case for viewing research data as a common resource underlying recent regulatory, policy and legal shifts is the principle of ‘open access’, and the notion that information, scientific results, and publicly funded research data are “a public good, produced in the public interest” (arzberger et al. 2004: 136; see also willinsky 2006). this principle lies at the heart of the oecd’s (2007) principles and guidelines for access to research data from public funding, a key policy document drawn on by funding and other agencies when developing data sharing policies (e.g. esrc 2010a; medical research council 2011). the open access principle specifies that “publicly funded research data should be openly available to the maximum extent possible” (arzberger et al. 2004: 136). arzberger et al. argue that the principle of openness to research data should apply “to all science communities” (arzberger et al. 2004: 144; original emphasis) and they urge that this imperative is backed with “formal policy frameworks and regulations” (arzberger et al. 2004: 146). data sharing is therefore being increasingly encouraged, prescribed, regulated and enforced in an effort to bring about large-scale behavioural, organisational and cultural change: a new research culture in which research data will no longer be, and be viewed as, a personal belonging but will morally and legally become a public, shared, common and global resource. an important question is, on what grounds is this shift being justified? the key argument put forward is that it will facilitate ‘better’ research. turning data into a common resource is seen to deliver scientific, moral, economic, political, professional, social and security benefits (see arzberger et al. 2004; oecd 2007; ukrds 2009; carl 2009; sshrc 2009). for example, data depositories are seen to provide an important resource for training in research. data reuse is understood to reduce the burden on participants and communities caused by multiple data collection efforts. data storage is considered to reduce the information security risks associated with maintaining duplicated datasets in more than one location. moreover, digital technologies are seen to have the potential to democratise knowledge and empower researchers and research communities; and openness, including data sharing, are seen as necessary to unleash this transformative potential. it is the scientific, moral, and economic rationales, however, that dominate the case being made for data sharing. first, data sharing is seen as ‘good science’, and as promoting transparency, innovation and progress (arzberger et al. 2004). it is understood to increase transparency by opening up our data and research processes for public scrutiny (bruna 2010). it is said to allow researchers to verify each others’ interpretations by returning to the ‘raw’ data. it enables researchers to investigate data in new ways: by asking new questions; by using new techniques or theoretical perspectives; by exploring data that were never analysed by the primary researchers; or by combining different datasets. the ability to retrieve and compare data from multiple sources can lead to the testing of new or alternative methods, and to “powerful new insights” (ukrds 2009: 1). combining datasets from different departments, agencies and sources is seen to enable the creation of new datasets which can facilitate high-quality, policy-relevant research by providing a fuller picture rather than analysing separate pieces of a jigsaw (esrc 2008). second, data sharing is seen to constitute ‘good research practice’. the moral case for data sharing draws on the idea that, as public sector workers undertaking publicly-funded research, researchers are seen to be accountable to the public. making their research data more widely available is understood to be in the public’s interest, and part of their moral responsibility and duty (bishop 2009). the ukda (2011), for example, suggests that researchers have a moral “duty to wider society to make available resources produced by researchers with public funds (data sharing required by research funders)”. and the medical research council (2011) policy on data sharing explains that “publicly-funded research data are a public good, produced in the public interest, and ... they should be openly available to the maximum extent possible”. research data are therefore being defined as public resources, public property, and public outputs of research: “research data will increasingly be the starting point for new research as well as a key output” (ukrds 2009: 1; see also carl 2009: 4). third, a significant driver for the current move towards data sharing is economic in that it allows the state to realise a return on its financial investments. reusing data is seen as a cost-effective and cost-efficient use of public funds because it provides a better return on public investment in research. as arzberger et al. (2004: 135) make clear, the goal of open access is “to ensure that both researchers and the public receive optimum returns on the public investments in research”. they continue: in recent years, the debate on e-science has tended to focus on the “open access” to the digital output of scientific research, namely, the results of research published by researchers as the articles in the scientific journals... this focus on publications often overshadows the issues of access to the input of research the research data, the raw material at the heart of the scientific process and the object of significant annual public investments. (arzberger et al. 2004: 135) turning research data into a public resource is therefore seen as a scientifically enlightened, morally worthy, politically progressive, and economically beneficial activity. as arzberger et al. (2004: 136) write, “expanding the adoption of this principle to national and international stages will enable researchers, empower citizens and convey tremendous scientific, economic, and social benefits”. taking seriously the practices that provide the illusion of research data’s givenness the case for treating research data as a common resource rests centrally on a particular philosophical understanding of research data that can be gleaned from two key documents: arzberger et al.’s (2004) paper on ‘promoting access to public research data for scientific, economic, and social development’ and the resulting oecd (2007) report on principles and guidelines for access to research data from public funding. arzberger et al. (2004: 135) define data as “the raw material at the heart of the scientific process”. the oecd (2007: 14) report characterises data as: factual records (numerical scores, textual records, images and sounds) used as primary sources for scientific research, and that are commonly accepted in the scientific community as necessary to validate research findings. a research data set constitutes a systematic, partial representation of the subject being investigated. these definitions treat data as facts: decontextualised bounded objects that carry inherent meanings and are representative of reality. in the words of knorr cetina (2001: 191), data are understood as ‘closed boxes’ that one views from the outside “as one would look at tools or goods that are ready to hand or to be traded further”. from this perspective, data are perceived as separate, rather than inseparable, from the people, contexts and practices that generate them. while data may be enhanced through the provision of contextual information and metadata, fundamentally, context is understood as conferring additive rather than constitutive meaning. that is, the ontological relationship between object and subject, or data and context, is understood in terms of separation rather than relationality. the ontological unit is taken to be “independent objects with independently determinate boundaries and properties” (barad 2007: 33) rather than ontologically inseparable and entangled relations. one way of understanding how research data are being normatively conceptualised within the notion of data as a common resource is in terms of it underlying representational framework. representationalism, explains barad (2007: 137), takes the notion of separation as foundational: “it separates the world into the ontologically disjunct domains of words and things, leaving itself with the dilemma of their linkage such that knowledge is possible”. drawing on rouse (1996), barad argues that representationalism is a cartesian by-product in its asymmetrical faith in representations over the material world, and its neglect of the sociomaterial practices through which representations are constituted: representationalism is a practice of bracketing out the significance of practices; that is, representationalism marks a failure to take account of the practices through which representations are produced. images or representations are not snapshots or depictions of what awaits us but rather condensations or traces of multiple practices of engagement. (2007: 53) i want to consider barad’s work in greater detail here because it helps us see how the case being made for treating data as a common resource is rooted within a particular (despite its assumed universalism) cartesian and representational worldview that is based on an ontology of separateness. barad’s work enables us to do this because she has developed a different metaphysical perspective: a performative, post-humanist philosophical framework that is premised on a relational ontology. within her ‘agential realist’ framework, reality is redefined as sociomaterial phenomena that are constituted through, and ontologically inseparable from, the practices of representation. these practices are understood in a performative way, as labourers: they perform ontological and epistemological (and moral) work. they are material-discursive labour processes and practices that “help constitute and are an integral part of the phenomena being investigated” (barad 2007: 232). furthermore, these practices do not simply detect differences – between self and other, agency and structure, knower and known that are already in place. rather they contribute to the production and reconfiguring of difference: they constitute self and other, agency and structure, knower and known as separate and bounded entities. significantly, it is the ontologically inseparable material-discursive nature of these practices, and how they are understood to constitute realities that are at once ontic and semantic, that allows agential realism to “take the empirical world seriously once again, but this time with the understanding that the objective referent is phenomena, not the seeming ‘immediate given-ness’ of the objective world” (barad 2007: 152). barad places practices of representation, and their productive effects, at the heart of her framework. representationalism relies on a correspondence relation between words (discourse/meaning) and things (matter), and assumes that we have access to discursive representations in a way that we do not to material beings. agential realism shifts the focus away from the nature of representations to the material nature of discursive practices and how they are causally related to material phenomena. “i am interested”, she writes, “in a nonrepresentationalist realist account of scientific practices that takes the material nature of practices seriously” (2007: 56). a central aspect of her project is concerned with understanding matter’s dynamism: the active role played by the material world and the body’s materiality in constituting phenomena, in contrast to approaches that ignore matter, render it passive, or reduce it to social or discursive processes. matter, she argues, is “a dynamic and shifting entanglement of relations, rather than … a property of things” (2007: 35). an agential realist framework understands the ontology of the world as being comprised not of things but of ‘phenomena’, specific material configurations of the world that denote the ontological inseparability and entanglement “of agentially intra-acting components” (barad 2007: 33). barad writes: “parts of the world are always intra-acting with other parts of the world, and it is through specific intra-actions that a differential sense of being – with boundaries, properties, cause, and effect – is enacted in the ongoing ebb and flow of agency” (2007: 338). barad’s neologism, ‘intra-action’, is key to understanding her agential realist framework. whereas the term inter-action assumes the existence of separate individual agencies prior to their interaction, the notion of intra-action implies that agencies become determinate, separate and distinct only as a result of their intra-actions. epistemologically, agential realism understands knowing as emerging from our “direct material engagement with the world” (barad 2007: 49). we come to know the world by intra-acting with, and constituting, it: “we don’t obtain knowledge by standing outside the world; we know because we are of the world.” (2007: 185). coming to know the world, through experimentation and theorising, comprises “dynamic practices that play a constitutive role in the production of objects and subjects and matter and meaning. … theorising and experimenting are not about intervening (from outside) but about intra-acting from within, and as part of, the phenomena produced” (2007: 56). this is what barad calls the “practices of knowing in being” 2007: 185). ontology and epistemology, she explains, are inseparable: “practices of knowing and being are not isolable; they are mutually implicated” (2007: 185) because “scientific practices are specific forms of engagement that make specific phenomena manifest” (2007: 336). the separation of ontology and epistemology is a reverberation of representational metaphysics and its underlying binaries. each specific material intra-action matters, then, for it brings into being specific phenomena and realities. entangled practices are productive and performative: they enact what barad (2007: 334) terms ‘agential cuts’ effecting and materialising a separation between ‘subject’ and ‘object’. that is, there is no inherent cartesian distinction between subject and object. rather, “the agential cut enacts a resolution within the phenomena of the inherent ontological (and semantic) indeterminacy” (2007: 334). agential realism does not take for granted the boundaries between and around subjects and objects, words and things, matter and meaning, nature and culture. rather, it “investigates the material-discursive boundary-making practices that produce ‘objects’ and ‘subjects’ and other differences out of, and in terms of, a changing relationality” (2007: 93). it allows us to be “attentive to the iterative production of boundaries, the material-discursive nature of boundary-drawing practices, the constitutive exclusions that are enacted, and questions of accountability and responsibility for the reconfigurings of which we are part” (2007: 93). the deeply entangled material-discursive “practices of knowing and becoming” (barad 2007: 56) play a constitutive role in the production of phenomena, enacting exclusions that “matter both to bodies that come to matter and those excluded from mattering” 2007: 57). epistemological, ontological, and ethical issues are deeply entangled and inseparable. this applies both to the practices that are being studied and the knowledge-making practices that we engage in. the kind of framework we need, suggests barad, is an ‘ethico-onto-epistem-ology’, an “appreciation of the intertwining of ethics, knowing, and being… because the becoming of the world is a deeply ethical matter” (2007: 185) and because we must take responsibility “for the role that we play in the world’s differential becoming” (2007: 396). from an agential realist perspective, ‘data’ are constituted in the intra-action (relationship) of the ‘object’ (e.g. empirical realities) and the ‘agencies of observation’ (e.g. specific researchers, methods, technologies, practices). the objective referent for the data is the phenomenon, which is inseparable from the social and material, discursive and technological, human and nonhuman practices that constitute the data. the meaning of data emerges from and through measurement practices in which the object of investigation and the agencies of observation intra-act, mutually constitute one another, and are ontologically inseparable. data production involves such measurement practices: material-discursive practices through which ontic and semantic realities, meaningful material phenomena, are constituted in the form of data (measurements). data producers, and their methods and practices, help produce, and are part of, the data and phenomena they constitute. from an agential realist perspective, these phenomena are neither preexisting, but nor are they socially constructed or discursively constituted. rather, they are brought into being, come to be known, and constituted as bounded ‘entities’ through the specific apparatuses (sociomaterial, human-technological methods and practices) we deploy. representational understandings of data and their production conceptualise the cut between data and context in cartesian terms: data, which are seen to be what matters, are understood as free-floating measurements with inherent meanings; context, which is seen as secondary to data, comprises the measurement practices, labour processes, conditions and relations of production that give rise to the data. from an agential realist perspective, knowledge making practices (such as data collection) are boundary-drawing devices that produce the bounded entities we denote as ‘data’ and ‘context’. data do not represent fixed external (natural or cultural) realities. rather, they are the product of agential cuts, and the constitutive inclusions and exclusions that these enact. specifically, data generation practices enact an agential cut (enacted by researchers and the larger sociomaterial relations) between data and context: they are inherently inseparable, mutually constitutive, and only meaningful in terms of their (ontologically primary) relationality. meaning is not inherent to the data or to context as separate entities. rather, it inheres in the intra-active relations between them: data and context emerge as separate and determinate entities through our specific methods and practices (including, for example, how boundaries are drawn around ‘data’ and ‘context’ in the process of data generation). the constitutive effects of treating research data as a common resource i have taken the time to spell out some of the details of barad’s metaphysical framework by way of highlighting how a representational or cartesian worldview is just one way of understanding data, its generation, and its use in the making of knowledge. the adoption and institutionalisation of a representational system is therefore a matter of ‘choice’, or rather, a position for which responsibility must be taken. barad (2007: 203) explains that we are responsible, not only for the knowledge that we seek, but in part for what exists “not because it is an arbitrary construction of our choosing, but because it is sedimented out of particular practices that we have a role in shaping”: making knowledge is not simply about making facts but about making worlds, or rather, it is about making specific worldly configurations – not in the sense of making them up ex nihilo, or out of language, beliefs, or ideas, but in the sense of materially engaging as part of the world in giving it specific material form. (2007: 91) we do not have sole responsibility for the realities/knowledge we produce: it is not a case of willfully choosing a metaphysical framework. nor are we fully exonerated from responsibility, as this framework is not deterministically imposed upon us. rather, our responsibility comes from the agential part that we play in “the material becoming of the universe” (barad 2007: 178). this means that we must take some responsibility for the realities and knowledge we bring into being. at the same time, we must recognise that these realities and knowledge (and their underlying metaphysical commitments) are intra-actively entangled with larger sociomaterial arrangements that we are not fully responsible for. but, we are also partly responsible for these because the specific practices, realities and knowledge that we constitute are themselves playing an intra-active part in (re)configuring these larger sociomaterial arrangements. barad (2007: 93) further argues that we are also responsible for what we exclude from mattering, what she terms ‘constitutive exclusions’: “different intra-actions produce different phenomena… one can’t simply bracket (or ignore) certain issues without taking responsibility and being accountable for the constitutive effects of these exclusions” (2007: 58). she further explains: there are risks in putting forward an ontology: making metaphysical assumptions explicit exposes the exclusions on which any given conception of reality is based. but the political potential of deconstructive analysis lies not in simply recognising the inevitability of exclusions but in insisting on accountability for the particular exclusions that are enacted and in taking up the responsibility to perpetually contest and rework the boundaries. (2007: 205) this performative perspective is useful because it opens up the possibility of investigating what realities are brought into being by practices that position data as a specific type of ‘common’ resource, namely one that is publicly (government) owned (rather than other notions of ‘the commons’). we can ask: what does the illusion of research data’s givenness (a commitment to representationalism), and the exclusion of the labour of data producers, make possible ontologically, morally, politically and legally? in answer to this question, i want to argue that despite suggestions that sharing research data is an inherently politically progressive move enabling the democratisation of science, the currently dominant vision of data as a common resource reinforces, institutionalises and legitimises power differentials and inequalities, particularly between data producers on the one hand, and data funders/users/consumers on the other (though i recognise the lines between these are blurred). in this sense, positioning data as a common – publicly owned resource exacerbates precisely the power imbalances that feminist scholars have been highlighting for several decades between researchers and their participants, between and amongst researchers, and between hegemonic and ‘other’ or ‘subaltern’ (spivak 1988) knowledges and realities. power relations between researchers and participants for a qualitative researcher like myself, the notion that data are a common resource makes a difference to my research practices and what i tell my research participants. in order to share the data that i generate, i must seek my participants’ informed consent to do so. in a context where digital data loss, and illegal data access and use, are routinely featured in the media i have an ethical responsibility to discuss the risks and benefits of data sharing. i must also explain that while every effort is made to ensure the security and ethical reuse of digitally-stored data, placing their interview in a digital archive would lessen my and their control over what happens to the data and how it might be used. this is because i am no longer ‘simply’ asking my participant to trust me with their story. there are now as-yet-unknown third parties (however ‘bona fide’), with as-yet-unknown intentions and purposes (however laudable and legitimate), to factor into the equation. i would have to explain that researchers reusing their interview would be required by the data archive to sign an end use licence which “has contractual force in law, in which they agree to certain conditions, such as not to disseminate any identifying or confidential information on individuals, households or organisations; and not to use the data to attempt to obtain information relating specifically to an identifiable individual” (ukda 2011). nevertheless, i would also feel an obligation to explain that this in itself would not protect them against the potentially morally harmful effects of seeing their story interpreted through different lenses or used for different purposes. from this perspective, the recommended (and increasingly mandatory, see esrc 2010b) practice of seeking our participants’ informed consent to share their stories for future uses they have not been informed about looks increasingly unethical. the ethical and moral issue is not only whether our participants will read, or feel morally harmed by, what is written about them. rather, as researchers we have a moral responsibility to explain these potential risks because failure to do so risks breaching the relationships of trust with participants, and exploiting and wronging them. involving participants in decision-making about data sharing (as recommended by the ukda) may be a useful approach but only in a context that takes into account power differentials between researchers and participants (that feminist and post-colonial scholars have been concerned and writing about for over four decades, see doucet and mauthner 2008). this is because, generally speaking, participants will believe what we tell them and will entrust us with their stories because they trust us to do the right thing. this places participants in a vulnerable position. it heightens our own responsibility to think carefully about what we are asking of, and doing to, our participants by seeking their informed consent to data sharing: what the repercussions might be not only for our particular participants, but for others like them whose trust and participation we rely on for the very conduct of our research. furthermore, spelling out the potential risks of data sharing reconfigures the moral and ontological conditions in which i am doing research, conducting fieldwork, and building relationships with participants. in my interviews, i am able to make an unspoken moral commitment to my participants that i will, to the best of my ability, take care of the story they have entrusted me with. within a data sharing context, however, it would be unethical for me to make this moral assurance because i have no knowledge of (and most likely little control over) how their story might be used at some future date. this is important because it means that seeking our participants’ informed consent to share their stories, beyond the research study they are involved in, constitutes a different moral context for their storytelling than seeking their informed consent to take part in my study and share their story with me and my research team. seeking informed consent is not simply an additional neutral ethical procedure that researchers must ensure they carry out and that leaves everything else unchanged. seeking informed consent has moral and ontological effects: it constitutes different moral and ontological conditions of possibility for our participants’ storytelling. it gives rise to different stories to those that might otherwise have been told. for example, knowledge that their account might be lodged within a digital archive (consciously or unconsciously) may foster a ‘public’ rather than a ‘private’ narrative. similarly, (and as i have subsequently discovered in a current project[footnoteref:5]) this might impact on my own interviewing style: on my willingness to share and expose personal experiences as part of building relationships of trust with my participants, knowing these may no longer be shared only with my participant and members of my research team. these changes matter ontologically because they might make it more difficult to create the kinds of relationships that i see as critical to, indeed constitutive of, the narratives i am interested in: the quiet and vulnerable stories that are difficult to tell, and hear, in particular social, cultural and historical settings. indeed, these practices will render harder-to-reach the kinds of narratives that many feminist scholars have been interested in: the muted, marginalised, and largely untold stories that challenge or trouble normative worldviews. [5: this project is developing a performative approach to digital data sharing. i am using research ‘data’ and materials from jennifer platt’s (1976) pioneering sociological study of the social research process as a case study, as well as conducting interviews with her. ] conducting an interview on the assumption that it will, by default, be made more widely available weakens our participants’ trust in us, as it should do. this is because we no longer have the ability or right to act on behalf, and in the interests, of our participants. it will no longer be necessarily up to us to decide whether data reuse might be morally harmful to them or might violate the relationship of trust within which they told their story. furthermore, it would be naïve and unethical to suggest otherwise to our participants: to avoid spelling out or downplay the moral risks and complexities involved in consenting to wider use of their stories. this would be exploiting the power that we have as researchers and the trust that participants place in us. power relations between and amongst researchers the uncritical assumption that data constitute a public, common, or global given resource obscures the politics of knowledge production within research teams, and power relations amongst and between researchers (see mauthner and edwards 2007, 2010; mauthner and doucet 2008). in practice, most data are produced by junior researchers, phd students and/or technicians who, because of their structural positions and/or career stage, may lack the time and resources that senior researchers have to make full and timely use of the data they generate. while their data collection efforts are usually, though not necessarily, recognised and rewarded within the team through, for example, joint publications, recognition of their labour is less likely within the context of open data sharing as currently constituted. power and status differentials between team members risk leaving junior researchers open to exploitation as principal investigators have responsibility for making decisions about data sharing. even where senior colleagues consult junior team members, by dint of their power and status they may privilege their own objectives. within the context of international projects, there is a risk that data sharing becomes a form of scientific neo-colonialism. while turning data into open or common resource has the potential to provide postcolonial contexts with easy and cheap access to data generated elsewhere, they may lack the necessary scientific, technical, digital or cultural capital and resources to make full and speedy use of the data (see luo and olson 2008). in practice, it may be primarily well-resourced researchers and nations who stand to gain from the globalisation of research data, by reaping scientific and economic benefits and rewards from data generated by less well-resourced researchers and nations. from this perspective, the global data sharing project risks reproducing exploitative relations between nations, and between data users and data producers. the power to define reality the final issue i want to problematise here is the assumed universalism of the notion that data be regarded, a priori, as a common or public resource. this assumed universalism is built on intertwined metaphysical and moral foundations. it depends on understanding data as given facts that are independent of those who do the work of constituting them. this assumed universalism is also only possible if ownership is seen to derive from economic rather than material investments: if the rights of those who fund data production are privileged over the rights of those who produce data through their material-semiotic labour. given that data producers are already bracketed out within a representational metaphysical framework, their moral and political marginalisation ‘naturally’ follows, as does the ‘public interest’ argument: the assumption that because data production is funded from the public purse, the public necessarily have a right to access and benefit from these data. this assumed universalism is also what provides the justificatory grounds for the regulation of research and for a range of practices that, from the point of view of data producers, can be understood as ‘boundary-violations’ (nussbaum 1995) and acts of ‘symbolic violence’ (bourdieu 1999). this assumed universalism is precisely what makes it possible and seemingly legitimate for funding organisations to require data sharing (through their policies) and impose a default representational epistemic framework on all researchers, thereby marginalising alternative worldviews. this is reminiscent of what post-colonial feminist scholar spivak (1988) calls ‘epistemic violence’: the destruction of non-western ways of knowing and the domination of western ways of understanding. this assumed universalism gives these same organisations the power to dictate what constitutes good ethical practice, and require that researchers seek their participants’ informed consent to data sharing (a practice that, as i highlighted above, can be seen as highly unethical). this assumed universalism is also what gives government bodies (funding and law-enforcing agencies) the power to disinvest researchers of their moral ownership and intellectual property rights over their data. it renders legitimate the freedom of information legislation, the legal right for interested third parties to request access to research data, and the legal obligation for researchers (via the institutions that employ them) to release their data (and, as some see it, to violate their intellectual property rights). this assumed universalism also places researchers under moral obligation to release their data: to privilege an abstract and universal ‘greater good’ over the specific interests of their respondents or co-researchers, a practice that some regard as a violation of the trust-based relationships that researchers develop with their participants (eg kaye et al. 2009; mauthner 2012). the assumed universalism of treating data as a common resource not only makes these practices ontologically possible (it literally brings them into being and allows them to materialise), it also gives them moral and political legitimacy. it gives the agencies promoting these practices the moral and political means with which to claim that these practices are ‘in the public interest’. concluding comments in the 15 or so years since i was first drawn into thinking about the notion of research data as a shared or common resource (see also mauthner et al. 1998; parry and mauthner 2004, 2005; mauthner and parry 2009), i have seen the widespread promotion and institutionalisation of what remain largely unquestioned and unexamined assumptions: that research data are, by default, a common resource; that data belong, by default, to the public; that researchers have, by default, a moral duty and responsibility to the public to share their data; that data sharing is, by default, a scientifically, morally and politically progressive practice; and that sharing data provides, by default, a good return on economic investments. as these beliefs are increasingly being imposed through regulatory practices, researchers across disciplines are questioning these assumptions, and voicing growing ethical, moral, scientific and political concerns. they are asking questions such as: are the recommended ethical practices for data sharing really ethical? is data sharing in the public interest if we risk losing the public’s trust in science? does data sharing necessarily constitute good science? does data sharing necessarily democratise science and redistribute resources (and power) amongst scientists? (see mauthner and parry in press). and to what extent are notions of ‘globalisation’ and ‘the public good’ being appropriated by powerful research and policy bodies to promote economically-driven practices that may violate the rights and interests of members of the public and of research communities? within a representational framework, these critical voices are easily dismissed (see mauthner 2012; kaye et al. 2009). this is because what gives rise to, and confers legitimacy upon, their concerns is precisely what is being rendered invisible within a representational framework: the material-discursive practices and labour of data production. shifting the metaphysical framework is therefore important because it makes it possible to hear the legitimacy of these concerns and take them seriously. this is where barad’s work proves so useful. it enables us to make this shift and helps us excavate and question the specific metaphysical, moral, economic and political commitments that underpin the assumed universalism of treating data, a priori, as a common resource. this highlights how this is far from being an innocent practice. rather, it reconfigures the politics of knowledge production, shifts power away from data producers into the hands of data funders/users/consumers, and in the process changes what we discover and how we discover it. this points to the need not only to debate, rather than assume, the notion of treating data as a common resource; but also to understand what moral, ethical, political, legal, economic and social realities such a position performs into and out of being. in particular, we need to better understand how to conceptualise research data as a ‘common’ resource and further explore the range of potential institutional, regulatory and governance arrangements for managing research data as a common resource. here we may usefully draw on long-standing and interdisciplinary debates about the ‘commons’, as well as more recent explorations of the specific challenges thrown up by the ‘digital commons’ and ‘global commons’ (such as the knowledge, information, the internet, software) (e.g. hess and ostrom 2006). acknowledgements i would like to thank rosemary hunter for encouraging me to submit my work to feminists@law, and for helpful comments from two anonymous referees. further thanks go to odette parry for many discussions about data sharing since the 1990s. i am grateful to the society for research into higher education for funding my current research on digital data sharing. references arzberger, p., et al. 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(2006) the access principle: the case for open access to research and scholarship, cambridge, ma: mit press. _____________________________________________________________________________________________ 22 _____________________________________________________________________________________________ 21 helen xanthaki gender inclusive legislative drafting __________________________________________________________________________________ feminists@law vol 10, no 2 (2020) __________________________________________________________________________________ gender inclusive legislative drafting in english: a drafter’s response to emily grabham helen xanthaki[footnoteref:1]* [1: * professor of law and legislative drafting, ucl, uk; dean, international postgraduate laws programmes, university of london, uk; senior associate research fellow, sir william dale centre for legislative studies, institute of advanced legal studies, uk; and president, international association for legislation. email h.xanthaki@ucl.ac.uk ] emily grabham’s paper offers an insightful analysis on the legislative aspect of a uniquely innovative and challenging research graced by theoretical connotations and practical applicability. my response derives from the narrow world of legislative drafting and comes with a disclaimer of complete and utter naiveté in the substantive aspects of the article and the wider research. let me reassure you: this is not unusual in legislative drafting. a drafter’s awareness of the policy and law related to the drafting task is unnecessary. in fact, it is often unwelcome. the task of a drafter is to “speak” the regulatory messages to the legislative audiences in a manner that enables them to receive them as they were intended. being unaware of the policy and law tinging the legislative communication that is legislative drafting (stefanou, 2011, 2008) may offer the drafter the opportunity to place themselves in the position of the lay user, thus enabling them to identify with greater accuracy the elements of the communication needed to make the regulatory message accessible, and indeed accessible in its fullness. legislative drafting is informed by policy but does not inform policy within a functionalist realm, legislation is a tool for regulation or the legislative expression of government policy.[footnoteref:2] in other words, regulation is the process of putting government policies into effect (alexander and sherwin, 2001), to the degree and extent intended by government (see national audit office and department for business, innovation and skills, 2011). one of the many regulatory schemes (miller, 1985; brtf, 2005) or tools (see oecd, 2002a, para. 0.3; oecd, 2002b) available to governments (flückiger, 2004) is formally authorised legislation (blank, 2010). legislation serves as one of the many media available to regulators. it is a regulatory solution of last resort (weatherhill, 2007). in order to convey the regulatory message to legislative users, who are expected to alter their behaviour accordingly, legislation must use the language of lay users as a means of explaining clearly how their behaviour is expected to change and how law reform is to come about. communicating these messages to the legislative audience as clearly as possible remains the best way in which the legislation can, with the synergy of the other actors of the policy process (chamberlain, 1931), achieve the desired regulatory results (mader, 2001). in that context, drafters strive to contribute to regulatory efficacy by producing an effective legislative text, as per the diagram below.[footnoteref:3] [2: a statute is the formal expression of legislative policy (driedger, 1976).] [3: for a first draft of the pyramid, see xanthaki (2008). ] regulatory efficacy is the extent to which regulators actually achieve the desired regulatory results (see xanthaki, 2008; mousmouti, 2012). this is not a goal that can be achieved by the drafter alone (chamberlain, 1931): legislation requires a solid policy, appropriate and realistic policy measures for its achievement, cost-efficient mechanisms of implementation, and ultimately user willingness to implement and judicial inclination to interpret according to legislative intent (see hull, 2000; karpen, 1996; mader 1996). the drafter’s limited contribution to efficacy is effectiveness,[footnoteref:4] defined as the extent to which the observable attitudes and behaviours of the target population correspond to the attitudes and behaviours prescribed by the legislator (mader, 2001); or “the fact that law matters: it has effects on political, economic and social life outside the law – that is, apart from simply the elaboration of legal doctrine” (see snyder, 1993, p. 19; snyder, 1990); or a term encompassing implementation, enforcement, impact, and compliance (teubner, 1992); or the degree to which the legislative measure has achieved a concrete goal without suffering from side effects (müller and uhlmann, 2013); or the extent to which the legislation influences in the desired manner the social phenomenon which it aims to address (cranston, 1978; iredell, 1981); or a consequence of the rule of law, which imposes a duty on the legislator to consider and respect the implementation and enforcement of legislation to be enacted (voermans, 2009); or a measure of the causal relations between the law and its effects: and so an effective law is one that is respected or implemented, provided that the observable degree of respect can be attributed to the norm (mousmouti, 2012). if one attempts to use all of the elements of these enlightened definitions of effectiveness, one could suggest that effectiveness of legislation is the ultimate measure of quality in legislation (xanthaki, 2008), which reflects the extent to which the legislation manages to introduce adequate mechanisms capable of producing the desired regulatory results (see office of the leader of the house of commons, 2008), para. 24. in its concrete, rather than abstract conceptual sense, effectiveness requires a legislative text that can (i) foresee the main projected outcomes and use them in the drafting and formulation process; (ii) state clearly its objectives and purpose; (iii) provide for necessary and appropriate means and enforcement measures; (iv) assess and evaluate real-life effectiveness in a consistent and timely manner.[footnoteref:5] [4: see timmermans (1997); commission of the european communities (2002); also see high level group on the operation of internal market(1992); also office of the parliamentary counsel (2011); and office of the parliamentary counsel (2014).] [5: this is mousmouti’s effectiveness test.] the language of legislation legislation aims to communicate the regulatory message to its users as a means of imposing and inciting implementation. it attempts to detail clearly, precisely, and unambiguously what the new obligations or the new rights can be, in order to inform citizens with an inclination to comply how their behaviour or actions must change from the legislation’s entry into force. the receipt of the legislative message in the way that it was sent by the legislative text is crucial for legislative effectiveness and, ultimately, for regulatory efficacy. easified language, as a development of plain language, aims to introduce principles that convey the legislative/regulatory message in a manner that is clear and effective for its specific audiences. easified language encompasses the analysis of the policy and the initial translation into legislation, the selection and prioritisation of the information that readers need to receive, the selection and design of the legislative solution, and choices of legislative expression. easified language extends from policy to law to drafting. the blessing of this ambitious mandate comes with a curse of relativity. easification requires simplification of the text for its specific audience, and thus requires an awareness of who the users of the texts will be, and what kind of sophistication they possess. recent empirical data offered by a revolutionary survey of the uk’s national archives in cooperation with the office of parliamentary counsel (opc)[footnoteref:6] show that legislation is read by at least three categories of people: lay persons reading the legislation to make it work for them (gracia, 1995; pi and schmolka, 2000; schmolka, 1995), sophisticated non-lawyers using the law in the process of their professional activities, and lawyers and judges (see bertlin, 2014, pp. 27-28). this is a real legislative revelation that has led to legislative revolution. identifying the users of legislation has led to not one but two earthquakes. first, the law does not speak to lawyers alone. second, the law does not speak to the ‘average man’. [6: see https://www.gov.uk/good-law. ] gender in legislative drafting the expression of gender in legislative studies remains in the periphery of plain language or, more recently, clarity debates.[footnoteref:7] gender-neutral language (gnl) refers to language that includes all sexes and treats women and men equally (greenberg, 2008a). traditionally, in our society, men have been the dominant force and our language has developed in ways that reflect male dominance, sometimes to the total exclusion of women. gender-neutral language, also called non-sexist, non-gender-specific, or inclusive language, attempts to redress the balance.[footnoteref:8] admittedly, the mere reference to gnd seems to bring many a drafter around the commonwealth to covert amusement (hill, 1992). it is often ridiculed as one more feminist invasion in legislative drafting, and it is often justified by reference to the provision common in many interpretation acts that foresee that ‘“he” includes “she”’. [7: for a full analysis of gender neutral drafting, see xanthaki (2014), p. 103.] [8: see unesco’s guidelines on gender-neutral language: desprez-bouanchaud et al (1999).] gender inclusive language (gil) language takes the argument further. in an attempt to put into effect the principle that every citizen is equal before the eyes of the law, it aims to delete sex and gender from the expression of the subjects of legislation. therefore, instead of ensuring that both men and women are within the scope of legislative expression, as is the case with gnl, gil aims to eliminate the consideration of sex and gender altogether. as a result, it differs from gnl in that it avoids any classification of sex and gender. with gil the subject does not need to be classified or to identify as any sex or gender. a gi draft simply renders sex and gender irrelevant as a consideration. this is not an innovative approach. legislators have achieved that goal with reference to race, for example.[footnoteref:9] “legislation that is race-inclusive does not list categories of race and ethnicity.” in application of the same approach, gi legislation does not refer to “anyone, male or female or any other sex or gender”. in this respect, gil can be open to opposition by some feminist groups, who may find that the elimination of considerations of sex and gender is counter-productive to the feminist cause that often aims to draw attention to existing differentiations against women. of course, this would be incorrect. gil may eliminate sex and gender from legislative expression but this does not affect pro-women policy choices, nor their expression in gender specific language where appropriate. in fact, one could argue that in the environment of a gil statute book, gender specific language would have even more impact in drawing the users’ attention to the specific position of women in gender specific legislative texts. [9: from the point of view of legislative expression, experiences of eliminating race from legislative language can be used to guide the drafter in possible ways forward for the elimination of sex and gender from legislative language.] in the english-speaking world, gender neutrality is gaining ground. gnl has been adopted by the new south wales office of parliamentary counsel in 1983, by new zealand in 1985, by the australian office of parliamentary counsel in 1988, by the un and the international labour organization roughly around 1989, by canada in 1991, by south africa in 1995, and by the us congress, albeit not consistently, in 2001. in the uk gnl is applied to all government bills and acts since 2007.[footnoteref:10] however, most commonwealth drafters in other jurisdictions find it difficult to understand the rationale of gnd, since most interpretation acts expressly state that “he includes she”.[footnoteref:11] [10: see the statement of the leader of the house of commons hc deb 8 march 2007, c146 ws. see also the debates in the house of lords in 2013 and 2018: hl deb 12 december 2013 cols 10041016; hl deb 25 june 2018 cols 7-9.] [11: see for example section 6 of the uk interpretation act 1978.] the problem is that few non-lawyers are aware of the interpretation act. with reference to unambiguity (statsky, 1984, p. 184), “he” can be both “he” and “she” in a great number of statutes, but equally “he” is only “he” where gender specific language is actually appropriate (corbett, 1991, p. 21). for example, in jurisdictions where the military is exclusively male, one wonders whether the application of “he includes she” could lead to the admission of women in the army by broad interpretation of the male pronoun under the interpretation act, especially where there is no express provision to the contrary. mary jane mossman, a canadian legal academic explains the reasons for non-discriminatory language in law as being important to promote accuracy in legal speech and writing; to conform to requirements of professional responsibility; and to satisfy equality guarantees in laws and the constitution (mossman, 1995). gnd is also practicable (petersson, 1999), provided that “it comes at no more than reasonable cost to brevity or intelligibility”.[footnoteref:12] in fact, there no technical reason why legislation should not be drafted in a way that avoids gender-specific pronouns (greenberg, 2008b). [12: see opc, “gender-neutral drafting techniques”, drafting techniques group paper 23 (final) (december 2008).] the identification of the most appropriate drafting technique for the expression of gender in legislation can be undertaken by means of thornton’s methodology for legislative drafting. let us begin with stage 1, understanding the proposal. the objective of gender neutrality used to be equality between male and female. moving on to stage 2, analysing the proposal, leads us to the realisation that binary rigid approaches to sex and gender are no longer prevalent in society. gender inclusivity is now perceived by the lgbtqi+ community to extend far beyond two sexes. the purpose of gil is to remove gender as a characteristic of the legislative subject, as a means of putting into effect the fact that gender is not a relevant factor in the eyes of the law, unless of course sex and gender specificity is required. moving on to stage 3, designing the legislative solution, one is led to identify a language structure that ignores gender considerations whilst serving clarity, precision, and unambiguity in its widest subject inclusiveness. here lies the revelation: current language structures are bound to grammatical expression that is intrinsically linked to male/female/neutral (in some languages). and therefore, in moving to stage 4 and composition, the only solution available seems to be to depart from current language and introduce a new gender inclusive form of words. for stage 5, verification, one can add that a new gi expression serves the purpose of inclusivity both as an expression but also as a novelty that can attract attention to the new inclusivity ethos. if generic legislative expression aims to pursue clarity by removing sex and gender from the relevant characteristics of the generic legislative user, then gender inclusivity seems to serve best. thus, gender specific terms (such as “he”, “she” in all their forms) are to be used only when referring to just a male, or just a female person. moreover, gender neutral terms (such as the prevalent in the us (williams, 2008) “he and she”, “he/she”, or “s/he”) are to be used for binary expression only. in other words, there is a place for more than one technique, as there is a place for more than one regulatory goal related to gender. where gender specificity is pursued, for example, for the introduction of affirmative action supporting women, then legislative expression can and must only be gender specific. this serves clarity of expression, which in turn informs clarity of the legislative communication, legislative effectiveness, and ultimately regulatory efficacy. where gender neutrality is pursued, then gender neutral drafting techniques serve gender neutral regulatory goals. but in generic legislative communication, which requires gender inclusivity, it is the latter that serves best. the preferred technique for real gender inclusivity is the use of the singular “they”. this technique was favoured by authors prior to the nineteenth century (bodine, 1975; petersson, 1998) and is still common in contemporary english (swift and miller, 1980, pp. 38–40). whether this popular usage is correct or not is perhaps a matter of dispute. the oed (2nd ed, 1989) records the usage without comment. the shorter oed (5th ed, 2002) notes that it is “considered erroneous by some”. it is certainly well precedented in respectable literature over several centuries.[footnoteref:13] however, in the debate on gender-neutral drafting in the house of lords in 2013 a number of peers expressed concern about the use of “they” as a singular pronoun. this may explain why the technique lost support in the newer versions of the opc’s guidance from 2014 onwards (see opc, 2014, pp. 29-30). however, the technique is supported by authors, as it is the most compatible with spoken english (schweikart, 1990). an example of it can be found in the counter-terrorism act 2008, section 61(1): “references in this part to a person being dealt with for or in respect of an offence are to their being sentenced ... in respect of the offence.” and a further example comes from the local democracy, economic development and construction act 2009, schedule 1, paragraph 2(5)(b): “… the chair holds office ... in accordance with the terms of their appointment.” the technique is rather innovative, since it uses a grammatical error to draw the reader’s attention to gender inclusivity. but at the same time it demonstrates quite rightly that drafters must use grammar without being its slave. it is better to be inelegant than uncertain (aitken and piesse, 1995, p. 57). [13: see the examples in the oed and fowler’s modern english usage (burchfield, 1996).] conclusions gender inclusivity is a concept much wider than gender neutrality. neutrality promotes equality between men and women and can therefore be viewed as an expression of feminism in legislative drafting. in contrast to that, gender inclusivity promotes the elimination of gender from the attributes of the subjects of legislation. it goes beyond gender equality and reflects the continuous evolution of the lgbtqi+ movement. from the point of view of substantive law, gender inclusive legislation expresses to a fuller extent the constitutional principle of equality in the eyes of the law: everyone, not just men and women, is equal before the eyes of the law. from the point of view of legislative drafting, gender inclusivity puts to effect to a fuller extent the requirement of clarity. in legislation where all citizens are subjects of the regulation, gender inclusivity conveys expressly and clearly the subjection of all citizens of any or no gender to the regulatory and legislative messages of legislation. moreover, by contrast, gender inclusivity draws attention to gender specificity, where needed, as it contrasts loudly with the introduction of legislative texts addressed exclusively to specific genders. in that respect, gender inclusivity enhances clarity in legislative expression, as it expresses with clarity, precision, and unambiguity if and where gender is relevant in legislation. as a tool to clarity (which encompasses precision and unambiguity as sine qua non), gender inclusivity enhances legislative effectiveness (wilson, 2011; xanthaki, 2008). it ensures that users understand fully whether the legislation addresses and covers them or not, thus rendering compliance an issue of subjective intention, not intelligibility of legislative communication. in turn, legislative effectiveness serves regulatory efficacy, in that it serves as a tool for the achievement of policy/regulatory results. but gi is not the only regulatory goal pursued by all legislation. there is certainly still scope for gn policies, whose regulatory aim is to redress the balance of gender inequality in society (see undp, 2003, p. 21). thus, the choice of the most effective gnl tool is to be made on the basis of two criteria: one, clear inclusion of the female; and two, education of the users on the changed policy. this calls for a tool that quickly identifies the new position whilst at the same time reflecting gender equality. on that basis, the singular plural technique is ideal: it breaks the barriers of an inherent gender specific language and uses a grammatically unconventional form to alert the user of the departure from gender specific to gender neutral. but, in doing so, it eliminates the female from legislative expression. in that respect binary legislative expression could serve where the regulatory message is addressed to an exclusively female and binary legislative audience: “she” brings to light the female but excludes not just the male but the non-binary also. similarly, there is still scope for gender specific regulatory goals. and it is there, and only there, that gender specificity can serve as the optimal expression of this policy choice. to conclude therefore it is important to link the choice of legislative expression to the choice of gender regulation on an ad hoc basis. it is very important to state that “he” no longer includes any other than him and him alone. but “he” remains the optimal legislative expression if “he” is what is really meant. thus, the choice of legislative expression within the de-regulation of gender in law project is far from a solitary one. legislative expression is simply a statement of a policy choice. and here there are two: gender neutrality versus gender inclusivity. it remains therefore a choice of project direction that will inform its expression in the hypothetical draft law. exciting times 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language __________________________________________________________________________________ 6 __________________________________________________________________________________ 7 feminism and the idea of law margaret davies feminism and the idea of law __________________________________________________________________________________ feminists@law vol 1, no 1 (2011) __________________________________________________________________________________ feminism and the idea of law margaret davies* a challenge – reimagining law in recent years feminist legal scholars in canada and the united kingdom have set themselves an intriguing task – to expose the politics embedded in major appeal court decisions by rewriting certain judgments from a feminist point of view. the women’s court of canada, devised over dinner at an italian restaurant in toronto in 2004 (majury 2006: 1) was born of frustration at the narrowing focus of the canadian supreme court in its equality jurisprudence. with the assistance of organisations such as the women’s legal education and action fund and under the influence of the canadian charter for rights and freedoms, the supreme court had once been willing to innovate, but feminists had noticed it becoming increasingly less progressive. the women’s court, established as a loose coalition of feminist lawyers, scholars and activists, was established with the intention of illustrating that any judicial opinion is always just one possibility among many. alternative opinions and decisions can always be made which are based on more imaginative approaches to the equality (and other) jurisprudence. the uk-based feminist judgments project (hunter, mcglynn and rackley 2010a) took some inspiration from this approach, but applied the feminist judgment concept to a broader range of cases, including medical, property, criminal, family, and public law matters. the women’s court, the judgments project, and other similar activist interventions consciously perform a paradox: they are established to refuse and resist a dominant jurisprudence, yet of necessity they deploy the techniques and substance of that jurisprudence in their processes. this very personal as well as institutional conflict is nicely captured by diana majury in her introduction to the first series of judgments of the women’s court: a successor women’s court might try to envision a very different legal system from the existing one and explore what judicial decisions might look like in that context. we are a bit aghast at ourselves as a women’s court issuing thirty-five page decisions written in technical legal language. future women’s court judges may opt to be bolder and more visionary (2006: 6). there are two open challenges contained in this statement – first to try to ‘envision a very different legal system’ and second to ‘explore what judicial decisions might look like in that context’. for a legal theorist they are calls towards a positive renewal, reconstruction, or even revolutionary understanding of law. at the same time, there are some critical doubts about certain aspects of such a challenge – is it really possible to envision a different legal system when we are so embedded in our own legal paradigm? more to the point, perhaps majury is unnecessarily self-deprecating about the work of the court: doesn’t a women’s court or a feminist judgment already perform a large part of that particular task (insofar as it is possible) in the sense that it imagines a legal system peopled by reflective judges sensitive to questions of gender and aware of the implications of their interventions? it is difficult if not impossible to envision a completely different legal system. but it is always possible to envision incremental changes to the existing legal system which go beyond simple reform to touch upon the underlying ethos or culture of the legal system. such incremental changes might, for instance, consist of an increased level of reflexivity among decision-makers regarding gender (as indeed modelled by the women’s court of canada and the feminist judgments project) or an increased emphasis upon alternative modes of dispute settlement. the editors of feminist judgments: from theory to practice make the point (to my mind) persuasively: the feminist judgments project represents a form of academic activism, an attempt to tackle power and authority not from the distance of critique but on their own ground. by appropriating judgment-writing for feminist purposes the judgment writers engage in a form of parodic – and hence subversive – performance. in much the same way as judith butler describes ‘drag’ as a performance that subverts gender norms, these feminist academics dressed up as judges powerfully denaturalise existing judicial and doctrinal norms, exposing them as contingent, and as themselves (the product of) performances (hunter, mcglynn and rackley 2010b: 8). but this is only one part of the feminist judgments story. it is not only a parodic exposure and critique of ‘normal’ judicial decision-making. it has an equally powerful constructive dimension because it also (like drag) has the potential to alter our perception of the ‘normal’. feminist – and other critical – judgments help to bring narratives of diversity and otherness into the legal consciousness, thereby disrupting the comfortable hegemony of legal doctrinal tradition and to some degree normalising the alternative perspective (see hunter 2010). of course, the very notion of a judgment is about determination and fixity – inevitably a judge makes a decision which enforces a particular norm and excludes alternative possibilities (cover 1983; davies 1996) meaning that any underlying diversity and contestation is at one moment overtaken by the very practical and immediate need for determinacy and coherence. whatever our scepticism about envisioning a different legal system therefore, from a theoretical point of view, it is certainly possible to envision the ‘same’ legal system differently. such a project is in many ways implied in these activist feminist projects to re-imagine legal doctrine and decision making. the emphasis of such projects is upon a practical rather than a theoretical purpose, to envision essentially the same law coming up with different answers, sometimes using slightly altered methods, in specific doctrinal contexts. but what if we try to imagine the legal system itself from a different perspective? what if we look at the same legal system but with different conventions of ‘looking’? what, for instance, if we change the scale of legal theory away from the nation state to the micro-interactions of legal actors, and its perspective away from the expert insider – typically the judge – to anyone who engages with law (that is, anyone at all)? in the remainder of this paper, i want to respond further to the feminist challenge by identifying a key epistemological point of departure for contemporary understandings of law, and then ask what law looks like when we subvert or reorient that framework. law and the subject the perspective i wish to reconsider is that of the positivist separation of law. traditionally, this separation was cast as a separation (or separability) of law from some vague notion of ‘morality’ (hart 1958; naffine 2010). a more contemporary iteration of positivist separation concerns the separation or autonomy of law from a general non-legal sphere – politics, social norms, religion, and other normative pluralities. the emphasis of positivist separation is on the limits of law, in other words the idea that law is defined by certain limiting features differentiating what is law from what is not law. one such limit or division which has received patchy theoretical attention is the separation of law from the subject. the positivist presumption is that law and all of these other normative pluralities exist in a sphere separate from individual human beings. law is seen as a system or set of institutions which is simply imposed upon us as an external code – affecting our actions, perhaps our status, but not our inner identity. feminists and critical theorists have of course challenged this separation, but the emphasis has often been on how ‘the law’ (as institution, system, abstract set of doctrines, or concrete disciplinary procedures) subjects, constrains, or constructs. identity and subjectivity become an effect of law, and to a certain degree this is clearly right. we are made as subjects by a multiplicity of normative – legal, cultural, psycho-social, and political – contexts. although such approaches correctly diagnose the reliance of subjectivity on environments which normalise and constrain, they often maintain the image of law as a superstructural, essentially abstract but nonetheless existing, phenomenon. law effects individuals, but the reliance of law on the mundane, everyday microprocesses of human action and interaction is more rarely perceived or theorised, except where such actions are channelled through the ‘proper’ avenues for change already laid down by legal procedure – winning a case with a novel argument, promoting a law reform, and so forth. there are a number of problems, well known to feminist legal scholars, with regarding law as an autonomous and abstract set of institutions. the view of law as separate from human life is both theoretically inadequate as an understanding of law, as well as limiting as a framework for achieving feminist transformation. it is a theoretically inadequate account of law because it reifies law and removes it from the actual and the practical contexts in which law is experienced and lived – it represents law as having a particular identity and shape at the systemic and institutional level, but masks the empirical substance of law, obscuring in consequence law’s own participation in distributions of power. the separatist account of law also arguably limits our appreciation of the potential avenues for legal transformation. by emphasising methods of legal change which are prescribed by law itself (notably legislative reform or intervention in litigation), positivist/separatist accounts fail to recognise the openness of law to resistance and renewal from other less formal channels. in arguing that the positivist conception of law is theoretically inadequate and politically limited, i am not claiming that it is useless or even that it is false in some simplistic way. rather, i am claiming that despite the fact that it is useful in some contexts and carries its own fictive and self-defining ‘truth’, it is nonetheless important to look at law from other perspectives and in other dimensions. the point is not that we ought to abandon positivist ideas about law (or for that matter the critique of positivism), but rather that it is also possible to regard law as a different set of interactions altogether. part of my motivation is to respond to what has so often been seen as the fatal gap of all forms of legal critique – that they fail to provide positive reconstructions of the concept of law. feminist judgments reconstruct law in the practical dimension, but it is also important to think about our general image, concept or understanding of law. the norm-subject instead of starting with law as an object of expert knowledge which is separate from human subjectivity, legal theory also needs to consider the primacy of the subject in the construction of law. when we go out into the legal world, act and interact with others, perform, practice, mimic, contest and create the law, we live in a completely disjointed legal world. it has a horizontality where meaning is being made and understood in the immediate context, but there is no totality of meaning attached to law. my experience of law is simply one of fragments of interactions, held together in the first instance by the fact that they all involve me. numerous legal and other messages pass through me (as one instantiation of lyotard’s famous ‘nodal point’: 1984: 15) but these messages do not collectively amount to a general or systematic understanding of law. they coalesce in various ways across diverse sections of the population without necessarily being fixed in any particular form. of course, many of the messages i receive about law are in fact informed or underpinned by some total or general view of law, which everyone, especially those with a legal education, has probably internalised to some degree: this is unavoidable since the very idea of law is normally now based around the ideal or concept of a totality or system. but it is important to remember that that ideal is simply a fiction – an influential one, but nonetheless a fiction or assumption held in place by large numbers of people acting as if it is true. starting then from the bottom up, experiential position of the ordinary (non-expert) subject what changes about our understanding of law and why is this of any significance to feminist legal theory? first and most obviously, regarding law from the non-reified perspective of ordinary subjects exposes the mythical nature of the separation thesis. law as an abstract and fictional object might be separate from religious, moral, or social norms similarly abstracted from selves, but there is little sense in saying that law is experientially or existentially separate in any sense. on the contrary, law is a facet of a complex social existence, and is intertwined with many other dimensions of everyday life. law infuses social life and takes back from it the conventions, cultural values, interpretive imperatives and other practice-based norms which comprise our everyday existences. secondly, in looking at law from the perspective of the legal subject, we disrupt the conceptuality of law, and expose gaps in it. to speak of a ‘concept’ of law, or even of several concepts, erases the non-conceptual empirical facticity of law experienced in its everyday manifestations. as adorno stated, ‘the concept does not exhaust the thing conceived’ (adorno 1973: 5; cf cook 2005). legal theory has tended to fetishise the concept of law, presuming that individual events, people, interactions and so forth can and must be understood within the identity/unity created by the concept. the philosophical (and legal) obsession with fitting objects into a finite conceptual structure obscures the material and experiential nature of law. while practical legal thought may have some justification for such an approach, there is no excuse for legal philosophy to be so constrained: ‘philosophical objects can only be grasped where philosophy does not impose them’ (ibid: 13, cf 149). looking at law from the perspective of the subject helps to undo this theoretical imperialism and promotes a somatic, dynamic, and somewhat particularistic understanding of law. thirdly then (and getting to the point of why this is of interest to feminists), the fragmented perceptions, experiences, practices and interactions of legal subjects bring diversity, materiality and alternative logics into the interior of our image of law. this image of legal diversity is eschewed both by conventional legal images of coherence and predictability as well as by some feminist and critical discourses which emphasise hegemonic inclusion (masculinity, heterosexuality, whiteness) and exclusion (female, lgbti, and non-white identities). i am not arguing that claims of exclusion in specific contexts are wrong because clearly they are nearly always well-grounded. generalising this pattern of exclusions to the point where we say that law is ‘masculine’, ‘white’ and ‘heteronormative’ – claims i have often made myself – is more complicated theoretically, but also often justifiable as long as we are not claiming that these are necessary characteristics of law. outsider perspectives are in this way often regarded as alternative narratives about law, narratives beyond law and critical of it. however, looking at law from the perspective of subjects and expanding it to incorporate all types of legally-affected practices may bring diversity and the experience of exclusion into the interior of a social understanding of law comprised of contradiction and contestation. and finally, reorienting our perspective of law towards its actual material existence in everyday contexts allows us to perceive the essentially performative nature of law and the prefigurative potential of feminist legal politics. from the conventional point of view, law is an institutionalised set of practices which can be described and understood as a basically static theoretical object with its own reasonably definable limits and identity. as i have indicated, this is a comfortable and useful understanding of law, one which lawyers need to rely upon unquestioningly. on the other hand, (and extending kelsen somewhat) it is possible to see this image as a fiction made plausible by everyday performances of law in an endlessly diverse range of situations and with an endlessly diverse range of possibilities for change. feminist legal politics can and does draw upon these possibilities by prefiguring different narratives about law, and it is important to see these not as extra-legal experiments but as integral to the dynamic reconstruction of law in its culture, practices, institutions, and identity. conclusion it is difficult to see law as radically diverse when it so often seems to speak with a single voice and from a very limited range of perspectives. activist events such as the women’s court and feminist judgments project help to bring alternative narratives into our view of legal doctrine and thereby expose the potentialities of law to express difference. they remind us that law is a process made of decisions, actions, choices, relationships and values, and not simply a set of abstract or hypostatised doctrines. in my opinion, it is possible to broaden such insights to the idea of law, eschewing images of totality in favour of an altogether more grounded, material, and open-ended understanding of law. references adorno, theodor. 1973. negative dialectics. new york: continuum. chinkin, christine. 2001. ‘women’s international tribunal on japanese military sexual slavery’. american journal of international law 95: 335-340. cook, deborah. 2005. ‘from the actual to the possible: nonidentity thinking’. constellations 12: 21-35. cover, robert. 1983. ‘nomos and narrative’. harvard law review 97: 4-68 davies, margaret. 1996. delimiting the law. london: pluto press. davies, margaret. 2007. ‘beyond unity’. in sexuality and the law: feminist engagements, ed vanessa munro and carl stychin, 151-170. abingdon: routledge-cavendish. davies, margaret. 2008. ‘feminism and the flat law theory’. feminist legal studies 16: 281-304. hart, hla. 1958. ‘positivism and the separation of law and morals’. harvard law review 71: 593-629. hunter, rosemary. 2010. ‘an account of feminist judging’. in feminist judgments: from theory to practice, ed rosemary hunter, clare mcglynn and erika rackley, 30-43. oxford: hart publishing. hunter, rosemary, clare mcglynn and erika rackley (eds). 2010a. feminist judgments: from theory to practice. oxford: hart publishing. hunter, rosemary, clare mcglynn and erika rackley. 2010b. ‘feminist judgments: an introduction’. in feminist judgments: from theory to practice, ed rosemary hunter, clare mcglynn and erika rackley, 3-29. oxford: hart publishing. lyotard, jean-francois. 1984. the postmodern condition: a report on knowledge. minneapolis: university of minnesota press. majury, diana. 2006. ‘introducing the women’s court of canada’. canadian journal of women and the law 18: 1-25. naffine, ngaire. 2010. ‘the common discourse of hart and fuller’. in the hart-fuller debate in the twenty-first century, ed peter cane, 217-225. oxford: hart publishing. * professor of law, flinders university, adelaide, australia. �hyperlink "mailto:margaret.davies@flinders.edu.au"�margaret.davies@flinders.edu.au�. � such as the women’s international war crimes tribunal. see chinkin (2001). � more extensive analysis of the ideas in this section can be found in davies (2007, 2008). __________________________________________________________________________________ 2 __________________________________________________________________________________ 1 the new communists of the commons: 1 the new communists of the commons: 21st century proudhonists? by radhika desai to appear in international critical thought, no. 2, june 2011. radhika desai affiliation: department of political studies, university of manitoba, winnipeg, canada email: desair@cc.umanitoba.ca tel: 1-204-474-9818 mailing address: department of political studies, 527 fletcher argue, university of manitoba winnipeg mb, r3m 5v5 canada 2 the new communists of the commons: 21st century proudhonists radhika desai∗ department of political studies, university of manitoba, winnipeg, canada if proudhonism in the 19th century was, as marx argued, a petty bourgeois ideology, this paper argues that the new communism of the commons propounded by badiou, hardt and negri and žižek is a 21st century avatar of it. it speaks not for what poulantzas called the ‘traditional petty bourgeoisie’, as proudhon did, but for the ‘new petty bourgeoisie’ of ‘non-productive wage-earners’, which has also lately styled itself the ‘creative class.’ a failure to comprehend the dynamics of capitalist accumulation and a general antipathy to any general organization of labour in society, and thus to any serious politics, are common to both. in addition, the paper shows that the protection of the cultural commons, the core of the project, is but a programme aiming for the continued reproduction of the creative class within capitalism. it is also prey to a series of misunderstandings of the concept of the commons itself, of contemporary capitalism whose dynamics forms the backdrop of their project and key economic and political ideas of marx whose authority they seek to attach to their project. keywords: commons; idea of communism; creative class; proudhonism; marxism the great recession and the financial crisis that broke in its midst appeared at first to have prompted a major break with the neoliberal orthodoxy that was so instrumental in causing them. governments around the world called for fiscal stimulus, easy monetary policies and massive state intervention, and many were forced to nationalize, support and regulate failing financial institutions. keynes, whom neoliberalism had so mightily struggled to displace was back, and nowhere with more vengeance than in neoliberalism’s anglo-american heartlands. president obama confirmed the massive bailouts undertaken by the outgoing bush jr administration and announced the heftiest stimulus package in the advanced industrial world while gordon brown ‘saved the world’ with his economic diplomacy in favour of fiscal stimuli. but as the crisis wore on, the contingency of the new commitment to keynesianism (patnaik 2009a) and a deeper political continuity – of the unbroken power of financial capital over government, particularly in the us and the uk – became clear. the bailouts for banks and austerity for working people further confirmed that neoliberalism, while doctrinally about the free markets and ‘rolling back the state,’ had practically always effected state action in favour of capital, particularly financial capital. it remains less widely appreciated that these continuities are dangerous and contradictory ∗ email: desair@cc.umanitoba.ca 3 for the very forces they benefitted in the past: the combination of austerity and bailouts is prolonging the great recession and is almost certain to lead to further financial crises. when they occur, the financial institutions that were too big to fail the last time around will have become too big to bail out by states too indebted to do so. why recall all this in a paper about the new communism of the commons? quite simply because that phenomenon, wherein a group of prominent western intellectuals on the left has boldly announced an apparently radical return to communism committed to ‘de-demonizing’ it, is akin to the apparently radical return to keynesianism by governments and intellectuals who remain committed to the interests of finance. the publication of alain badiou’s the communist hypothesis (2010), michael hardt and tony negri’s commonwealth (2009), the conference volume the idea of communism (2010) and associated publications has been hailed – by the authors themselves – as a major political departure. in the words of costas douzinas and slavoj žižek, their conference, originally planned for a modest audience of about 180 and then forced to expand to accommodate about 1200, … opened the way for a reactivation of the strong link between radical philosophy and politics. the massive participation, the amazing buzz that propelled the conference (strangers greeting each other like old friends), the good humoured and non-sectarian question and answer sessions (something rather rare for the left), all indicated that the period of guilt [over actually existing communism, one presumes] was over. if this conference was a major intellectual encounter, it was an even greater political event. (douzinas and žižek 2010, ix) not to be outdone in self-importance alain badiou claimed of the same conference that ‘in addition to the two people behind it (slavoj žižek and myself), the great names of the true philosophy of our times (by which i mean a philosophy that is not reducible to academic exercises or support for the ruling order) were strongly represented’ (badiou 2010, 36). prima facie, badiou’s proposition that the left end the ‘end of ideologies’ (badiou 2010a, 99) and return to the ‘idea of communism’ after decades of distancing, hardt and negri’s proposal that it be associated with the defense of the ‘commons’ – the natural and the cultural worlds we inhabit (hardt and negri 2009, vii) – and slavoj žižek’s extension of these ideas to include ‘the commons of internal nature’ (e.g. žižek 2010) as well as the ‘excluded’, such as slum-dwellers, add up to a very tall political order. this paper argues, however, that on closer scrutiny this new communism of the commons turns out to be little more than a 21st century avatar of the proudhonism of the 19th, which marx exposed as a petty bourgeois ideology, but with one historical difference. 19th century proudhonism was the ideology of what poulantzas called the ‘traditional petty bourgeoisie’ of ‘small scale production and ownership, independent craftsmen and traders’ (poulantzas 1975, 204). the 21st century avatar is the ideology of what he called the new petty bourgeoisie, ‘nonproductive wage-earners’ (poulantzas 1975, 206). this class has since come to be dubbed variously as ‘knowledge workers’, ‘the professional managerial class’, ‘symbolic analysts’ or ‘cognitive workers’ and, last but not least, the ‘creative class’, people ‘who add economic value through their creativity’ (florida 2002, 68). if, speaking for the 19th century traditional petty bourgeoisie, proudhon’s socialism tragicomically sought revolution (proudhonists dominated the international working mens’ association element in the paris commune) if only to protect their class against its particular enemy, large scale capitalism, and proposed measures which assumed its continued existence, the new petty bourgeois new communism is, if anything, worse: an 4 harum-scarum manifesto, whose apparently radical fingering of large corporations who try to ‘privatise the general intellect’ (of which, needless to say, the ‘creative class’ is the embodiment), is not only based on new-fangled and badly tangled ideas about the nature of contemporary capitalism. it stops far short of socialism. like the reaction of the governing right to the crisis, the new communism of the left is more a symptom of the tension between the crisisinduced realization that the old grooves of thought and practice must be abandoned, and be seen to be abandoned, to retain credibility and relevance, and the inability of these intellectually and politically enervated representatives to actually do so. for all the incantations and intonations about marx and marxism, the new communists continue, as they have over the past many decades, to skirt the core of marx’s work, his critique of political economy. while it is unclear whether they accept the verdict of the majority of those who call themselves ‘marxist economists’ that marx’s account of capitalism is plagued by the so-called ‘transformation problem’ and inconsistent and hence mistaken about the tendency of the rate of profit to fall (but see elson 1979, kliman 2007, freeman et al 2004, desai 2010), the new communists’ ability to treat it as an inexhaustible source of apparently profound but actually disjointed and mangled ideas is certainly helped by this sort of ‘marxism without marx’ (freeman 2010). the new communists also falsely pin on classical marxism a deficiency of political understanding which they profess to make good (for a critique of an earlier attempt at this see desai 2001). and they fundamentally mis-read the history of communism in the 20th century, largely accepting questionable mainstream, indeed neoliberal accounts of its problems and demise (for a critique and an alternative account see kotz 1997). just as the reaction of the right to the crisis betrayed its class character more clearly than was revealed in the free market rhetoric of the past three decades, so the reaction of these new communist intellectuals to the crisis betrays the extent to which the left of the past decades, including many self-proclaimed marxists, have read into marx and communism their own new petty bourgeois concerns. finally, just as the right’s reaction, rather than resolving the crisis and laying a new foundation for growth has, instead, laid one for the next crisis, so the new communists’ new found communism is little more than an express train headed for irrelevance. this is already becoming clear in that they have little of import to say to the wave of protest and liberation struggles that are sweeping over the middle-east, not to mention london or wisconsin. for though framed by much seemingly radical rhetoric about returning, now unabashedly, to communism, the new communism embodies little more than the left’s failed empty oppositionism, neatly cleft from any politics, of the past several decades. it has been, in effect, the left’s capitulation to neoliberalism. as badiou, brazenly or inadvertently as the case may be, reveals, this was the real legacy of may ’68, as the new communist intellectuals so eurocentrically interpret it. for, barring the honourable exceptions, and net of the increases in strictly liberal freedoms for some women and minorities, the chief political results of their may ’68, which left out of account the powerful anti-imperialist struggles and wars of so many millions in the third world and fondly privileged only their own youthful rebellion, were that as that generation matured and occupied positions of political and economic power, the right moved farther to the right under the banner of the new right and the left also moved to the right under ‘third way’ banners both on the pretext of increasing liberal freedoms, but actually undermining them too, for most people in the world. in what follows, i first identify what i consider the main components of the new communism. the critique that follows is but a preliminary, and necessarily compressed, outline. it is founded on a reading of marx, marxism and its history that contests the new communists’ 5 deeply problematic and selective appropriation of these. like the increased demand for capital so widely reported since the crisis began, the hundreds who flocked to the new communists’ conference represent a perfectly understandable intellectual hunger for radical ideas in the midst of crisis. however, the adulterated fare offered up by the new communists can hardly satisfy it. it can, however, so long as it is successfully marketed, prevent that hunger from being satiated by the real article. the critique of the new communism begins with a review of the main terms of marx’s criticism of proudhon: his rejection of the ‘general organization of labour in society’ which would be indispensable to any communism. it goes on to discuss common proudhonist and new communist misunderstanding of the state. the rest of the critique of the new communism concentrates on the new features of the new communists’ thinking which specifically expresses the interests and self-image of the new petty bourgeoisie or the ‘creative class’. they include the confusions surrounding their central category, the commons, the ideas of ‘cognitive workers’ as ‘fixed capital’, of rent replacing profit and, finally, žižek’s questionable ideas about the relationship between capitalism and democracy. the paper ends with some reflections on the form of value in communism, the centrality of the state in struggles to achieve it and their likely nature. the new communism the proposal with which, it appears, badiou kicked off the construction of the new communism was that the left should once gain ‘subjectivise’ itself, not to communism as such but to the ‘idea’ – a ‘synthesis of politics, history and ideology’ – of communism (badiou 2010b, 3, 4). if ‘[t]he communist idea exists only at the border between the individual and the political procedure, as that element of subjectivation that is based on a historical projection of politics’, the historical projection of politics on which badiou’s subjectivation is based is revealed in his discussions of may ’68, the chinese cultural revolution and the paris commune. for all the differences between these three events, badiou extracts two common themes from his discussions: a rejection of ‘statism’ and an associated rejection of the party as a revolutionary vehicle. indeed, badiou dismisses all ‘democratic politics’ as ‘nothing more than an eager willingness to service the needs of banks’. rejecting such ‘capitalo-parliamentarism’, he calls for a politics that ‘is far removed from state power’ and surmises that it will ‘probably remain so for a long time to come’. but what looks like a deferral of engagement with state power turns out to be a rejection. the ‘obligatory refusal of any direct inclusion in the state, of any request for funding from the state, of any participation in elections, etc., is also an infinite task, since the creation of new political truths will always shift the dividing line between statist, hence historical, facts and the eternal consequences of an event’ (badiou 2010b, 13). representing ‘the new proletarians who have come from africa and elsewhere and the intellectuals who are the heirs to the political battles of recent decades’ (such, one must presume, as himself), such a politics will ‘not have any organic relationship with existing parties or the electoral and institutional system that sustains them’ (badiou 2010a, 99). this rejection of state, politics and democracy claims kinship with the marxist concept of the ‘withering away of the state’ and rejects ‘communism as a goal to be attained through the work of a new state’ (badiou 2010b, 13). against such a conception of politics, badiou finds marx’s account of the paris commune ‘ambiguous’: 6 on the one hand, he [marx] praises everything that appears to lead to a dissolution of the state and, more sporadically, of the nation-state. in this vein he notes: the commune’s abolition of a professional army in favour of directly arming the people; all the measures it took concerning the election and revocability of civil servants; the end it put to the separation of powers in favour of a decisive and executive function; and of its internationalism (the financial delegate of the commune was german, the military leaders, polish, etc.). but on the other hand, he deplores incapacities that are actually statist incapacities [incapacités étatiques]: its weak military centralization; its inability to define financial priorities; and, its shortcomings concerning the national question, its address to other cities, what it did and did not say about the war with prussia and its rallying of provincial masses. (badiou 2010a, 179) badiou notes with satisfaction that ‘engels formalises the commune’s contradictions in the same way’ when he showed that the two main political tendencies in the commune, the blanquists and the proudhonists, ‘ended up doing exactly the opposite of their manifest ideology’ – the blanquist partisans of centralised and conspiratorial politics had to destroy the state bureaucracy while the proudhonist opponents of associations had to support large scale workers’ associations. to this, badiou poses the question of ‘how would the current that marx and engels represented in 1871, and even much later, [would] have been more adequate to the situation’ and ‘with what extra means would its presumed hegemony have endowed the situation’. badiou leaves us to imagine the answer, noting only that ‘the ambiguity of marx’s account will be carried [sera levee] both by the social-democratic disposition and its leninist radicalization, that is in the fundamental motif of the party, over a century’ (badiou 2010a, 181). this motif too must be discarded. for badiou, the paris commune ‘for the first and to this day only time, broke with the parliamentary destiny of popular and workers’ political movements’ (badiou 2010a, 196-7). though the cultural revolution ‘bears witness to the impossibility truly and globally to free politics from the framework of the party-state that imprisons it’, ‘all emancipatory politics’ must nevertheless ‘put an end to the model of the party, or of multiple parties, in order to affirm a politics “without party”’, though without lapsing into anarchism (badiou 2010a, 155). if the left is ‘a set of parliamentary political personnel that proclaim that they are the only ones equipped to bear the general consequences of a singular political movement’, it is time to break with it (badiou 2010a, 198). indeed, ‘a rupture with the representative form of politics’ is necessary, even a ‘rupture with “democracy”’ (badiou 2010a, 227). more than ever, political power, as the current economic crisis with its single slogan of ‘rescue the banks’ clearly proves, is merely an agent of capitalism. revolutionaries are divided and only weakly organized, broad sectors of working class youth have fallen prey to nihilistic despair, the vast majority of intellectuals are servile. in contrast to all this, though just as isolated as marx and his friends were at the time when the retrospectively famous manifesto of the communist party came out in 1848, there are nonetheless more and more of us involved in organizing new types of political processes among the poor and working masses and in trying to find every possible way to support re-emergent forms of the communist idea in reality. (badiou 2010b, 14) to badiou’s idea of communism, which claims kinship with marx and marxism even as it rejects the principal elements of their politics, michael hardt and antonio negri add the proposal that communism be conceived as a resistance to the privatization of the ‘commons’. they agree with badiou that the project requires a non-statist and non-party approach. rejecting 7 both the ‘collapse theories’ which ‘envision the end of capitalist rule resulting from catastrophic crises, followed by a new economic order that somehow rises whole out of its ashes’ and ‘the notion of socialist transition that foresees a transfer of wealth and control from the private to the public, increasing state regulation, control and management of social production’, hardt and negri explain that ‘the kind of transition we are working with ... requires the growing autonomy of the multitude from both private and public control; the metamorphosis of social subjects through education and training in cooperation, communication and organizing social encounters; and thus a progressive accumulation of the common’ (hardt and negri 2009, 311). the resistance to the neoliberal privatization of the commons must not assume ‘that the only alternative to the private is the public, that is what is managed and regulated by states and other governmental authorities’ (hardt and negri 2009, viii). for hardt and negri, the commons include on the one hand ‘the commonwealth of the material world – the air, the water, the fruits of the soil, and all nature’s bounty – which in classic european political texts is often claimed to be the inheritance of humanity as a whole, to be shared together’ and ‘those results of social production that are necessary for social interaction and further production, such as knowledges, languages, codes, information, affects and so forth’ (hardt and negri 2009, viii). hardt justifies this new vision of communism through a re-reading of two passages from marx’s work, the section on ‘private property and communism’ in the 1844 paris manuscripts and one from the final part of capital, volume 1. in the former, hardt points out, marx equates communism with the abolition of private property. for marx this does not mean extending and generalizing private property to the whole community but rather ‘the abolition of .... property as such’ (hardt 2010, 139). hardt quotes marx saying ‘private property has made us so stupid and one-sided that an object is only ours when we have it’ (marx 1975, 351) and goes on to ask: what would it mean for something to be ours when we do not possess it? what would it mean to regard ourselves and our world not as property? has private property made us so stupid that we cannot see that? marx is searching here for the common. the open access and sharing that characterise use of the common are outside and inimical to property relations. we have been made so stupid that we can only recognize the world as private or public. we have become blind to the common. (hardt 2010, 139) [emphasis added] this search ends, hardt avers, in capital where marx speaks of how ‘capitalist production begets, with the inexorability of a law of nature, its own negation... [which] does not re-establish private property for the producer, but gives him individual property based on the acquisition of the capitalist era: i.e. on co-operation and the possession in common of the land and of the means of production’ (marx 1867/1977, 929). for hardt this means that capitalist development inevitably results in the increasingly central role of cooperation and the common, which in turn provides the tools for overthrowing the capitalist mode of production and constitutes the bases for an alternative society and mode of production, a communism of the common. (hardt 2010, 140) important as this is, hardt argues, this conception ‘grasps primarily the material elements in question’ and these are not ‘the dominant forms of capitalist production today’ (hardt 2010, 140). but here, the passages from the paris manuscripts come to the rescue, highlighting ‘the immaterial, really biopolitical aspects’. here, hardt argues, marx conceives communism as the ‘supersession of private property as human self-estrangement’, as the ‘true appropriation of the human essence through and for man’ and ‘the complete restoration of man to himself as a social, i.e. human, being’. here appropriation is 8 ... no longer appropriation of the object in the form of private property but appropriation of our own subjectivity, our human, social relations. marx explains this communist appropriation ... in terms of the human sensorium and the full range of creative and productive powers. ‘man appropriates his integral essence in an integral way’, which he explains in terms of ‘all his human relations to the world – seeing, hearing, smelling, tasting, feeling, thinking, contemplating, sensing, wanting, acting, loving’. i think the term ‘appropriation’ here is misleading because marx is not talking about capturing something that already exists, but rather creating something new. .... the positive content of communism, which corresponds to the abolition of private property, is the autonomous human production of subjectivity, the human production of humanity... (hardt 2010, 141) when hardt proposes that in such appropriation, ‘paradoxically the object of production is really a subject’ and ‘the ultimate object of capitalist production is not commodities but social relations or forms of life’ (hardt 2010, 142), he is subscribing to a view of contemporary capitalist production (shared by žižek and negri, as we see below) based on conceptions of ‘cognitive capitalism’, one of a family of diagnoses of contemporary capitalism cognate with ‘knowledge economy’, ‘information society’ etc., which claim that capitalism increasingly involves cultural rather than material production. in it, ‘the increasing centrality of the common on capitalist production – the production of ideas, affects, social relations and forms of life – are emerging as the conditions and weapons for a communist project’ (hardt 2010, 143). hardt also subscribes, again in common with žižek and negri, that such appropriation puts ‘[l]iving beings as fixed capital ...at the centre’ and involves ‘the production of forms of life [which is] becoming the basis of added value’ thanks to ‘human faculties, competences, knowledges, and affects – those acquired on the job but more importantly those accumulated outside work’ which ‘are directly productive of value’ (hardt 2010, 141). slavoj žižek stations himself farther to the left of the other new communists, though this turns out to be a largely rhetorical location. he endorses the need to revive the communist idea because liberal democratic capitalism ‘contains antagonisms powerful enough to prevent its indefinite reproduction’. these antagonisms include the corporate invasion of the two commons indentified by hardt and negri as well as two more: our genetic heritage, which also needs to be protected against neoliberal privatization and that between the included and the ‘excluded’. the last is particularly important because, žižek argues, without the ‘excluded’, ‘the global capitalist system’ can ‘survive its long term antagonism and simultaneously ... avoid the communist solution’ by reinventing ‘some kind of socialism – in the guise of communitarianism, populism, capitalism with asian values, or whatever’ and so ‘only the reference to the “excluded” justifies the term communism’ (žižek 2010, 214). žižek aligns the idea of the ‘excluded’ with badiou’s reference to the new proletarians, and proposes a radicalization of the concept of the proletariat ‘to an existential level well beyond marx’s imagination’, well beyond ‘the classic image of proletarians having “nothing to lose but their chains”’ to one in which ‘we are in danger of losing everything’. however, he detracts from badiou in insisting on the continuing importance of a politics focused on the state, even arguing for a reinstatement of the concept of a dictatorship of the proletariat in which ‘the state itself is radically transformed, relying on new forms of popular participation’ (žižek 2010, 220). he also endorses a democratic conception of struggle, žižek argues that whereas ‘till now, capitalism seemed inextricably linked with democracy’, ‘[n]ow ... the link ... has been broken’ (žižek 2010, 221). the reason lies in the emergence of ‘cognitive capitalism’ (vercellone 2008) in which ‘exploitation in the classic marxist sense is no longer possible – which is why it has to be 9 enforced more and more by direct legal measures, i.e. by non-economic force’ (žižek 2010, 224). in making this case, žižek refers to an argument of negri’s in which the latter interprets certain passages in the grundrisse to argue that the increasing role of fixed capital in capitalist production, which reflects ‘the development of general social knowledge,’ leads to a situation in which the fixed capital becomes ‘man himself’ because the ‘productive power of labour’ is ‘itself the greatest productive power’ (žižek 2010, 222). once this happens, ... the moment the key component of fixed capital is ‘man himself’, its ‘general social knowledge’, the very social foundation of capitalist exploitation is undermined, and the role of capital becomes purely parasitic; with today’s global interactive media, creative inventiveness is no longer individual, it is immediately collectivised, part of ‘common’, such that any attempt to privatise it through copyrighting become problematic – more and more literally, ‘property is theft’ here. (žižek 2010, 222) žižek agrees with negri when the latter says that ‘the wage epoch is over’ and that rather than ‘the confrontation between work and capital concerning wages’ we are witness to ‘the confrontation between the multitude and the state concerning the instauration of the citizen’s income’ (žižek 2010, 222). žižek notes negri’s conclusion from this that the task is ‘not [to] abolish capital, but to compel it to recognise the common good, i.e. one remains within capitalism’ (žižek 2010, 222, emphasis added). žižek, as is his style, also demurs a little, positioning his interlocutor, negri, as the supplier of merely a ‘standard’ (dare we say fordist?) ‘post-hegelian matrix of the productive flux which is always in excess with regard to the totality which tries to subdue and control it’. against this, žižek claims to provide something altogether more enticing – post-fordist, flexibly produced and custom-made, one presumes – a ‘parallax shift’ in which ‘we perceive the capitalist network itself as the true excess over the flow of the productive multitude’ (žižek 2010, 223). however, this appears more an exercise in brand placement than any registration of serious scholarly or intellectual difference. for he has rejoined negri by the next page in subscribing to carlo vercellone’s idea that contemporary capitalism is no longer about profit but rent. the increasing role of the ‘general intellect’ results, for žižek, not ‘as marx seems to have expected, [in] the self-dissolution of capitalism, but the transformation of profit into rent on the privatized general intellect’ (žižek 2010, 224-5). as the example of bill gates ‘who became the richest man on earth within a couple of decades by appropriating the rent received from allowing millions of intellectual workers to participate in that particular form of the “general intellect” that he privatizes and controls’, shows workers ‘are no longer separated from the objective conditions of their labour’ since they own their own computers, for instance, but ‘remain cut off from the social field of their work, for the “general intellect” – because the latter is mediated by private capital’ (žižek 2010, 225). what is true of the ‘commons of culture’ is also true of the ‘commons of external nature’: contemporary high prices of oil are, according to žižek, due to the ‘rent we pay the owners for this resource because of its scarcity and limited supply’ (žižek 2010, 225). žižek reads these changes as requiring an emphasis on the state and democratic politics and appears to part company with the other new communists. he argues that there is a fundamental ‘contradiction’ of today’s ‘postmodern’ capitalism: while its logic is deregulatory, ‘anti-statal’, nomadic/deterritorializing, etc., its key tendency towards the ‘becoming-rent-of-profit’ signals the strengthening role of the state whose (not only) regulatory function is ever more omnipresent. dynamic de-territorialization coexists with and relies on increasingly authoritarian interventions of the state and its legal and other apparatuses. what can be discerned at the horizon of our historical becoming is thus a 10 society in which personal libertarianism and hedonism coexist with (and are sustained by) a complex web of regulatory state mechanisms. far from disappearing, the state is today gaining in strength. (žižek 2010, 224) though žižek envisages a predominantly political fight against this rent-seeking predatory capitalism, its content belies this. in žižek’s view, the world’s working class consists of three groups – those involved in intellectual planning and marketing, material production and the provision of material resources, i.e. intellectual labourers, the old manual working class and the outcastes. unfortunately they are divided by their adherence to ‘enlightened hedonism and liberal multiculturalism, populist fundamentalism and more extreme singular forms’. overcoming these divisions in a unity ‘is already their victory’ (žižek 2010, 226). the proudhonism of the new communists marx’s critique of proudhon in the poverty of philosophy of 1847 and in scattered references throughout his later economic works reveals proudhon’s ideas to be a compendium of the characteristic errors of vulgar political economy arising out of the fetishism of commodities (‘he wants to be the synthesis – he is a composite error.’ marx 1847, 107). unable, in particular, to differentiate between use value and value (or exchange value), he equated utility and value though they were in fact opposed (marx 1847, 32), assumed that commodity production could be reconciled with ‘labour money’ (marx 1947, 172-5 and marx 1867/1977, 188-9) and took the direct exchangeability of all commodities for granted (marx 1867/1977, 161). proudhon’s proposals attempted to articulate small producers’ interests. however, given that the petty bourgeois have no consistent interests, since they are contradicted on the one hand by those of the capitalists and on the other by any potential socialism, they can only constitute wishful thinking on the part of the petty bourgeois. as poulantzas was to point out, the petty bourgeoisie has, in the long run, no autonomous class position of its own. this simply means that, in a capitalist social formation, there is only the bourgeois way and the proletarian way (the socialist way): there is no such thing as the ‘third way’, which various theories of the ‘middle class’ insist on. ... this means, among other things, that the petty bourgeoisie has nowhere ever been the politically dominant class. ... [t]he class positions taken by the petty bourgeoisie must necessarily be located in the balance of forces between the bourgeoisies and the working class and thus link up (by acting for or against) either with the class positions of the bourgeoisie or with those of the working class. ... [in the latter case] they do so even while they are still marked by petty bourgeois ideological features. (poulantzas 1975, 297-8) below we see first how marx criticised proudhon for rejecting statism, in effect, any ‘general organization of labour in society’, because of a misunderstanding of the relationship between large scale capitalism and petty commodity production and go on to show that the new communists not only suffer from the same affliction but one made worse by their anticommunism. a critique of a number of new features of the new communists thinking and how it reflects their interests as a self-styled ‘creative class’ follows. divisions of labour: society and factory in their rejection of state and party, not only are the new communists simply preaching a new third way, even as they reject that of parliamentarist social democracy, they are, like proudhon, 11 refusing what marx calls below, ‘a general organization of labour in society’. instead, they affirm their faith in the market organization of society, and the order of property, private property, it presupposes. marx exposed the logic of this position as follows: the same bourgeois consciousness which celebrates the division of labour in the workshop, the livelong annexation of the worker to a partial operation, and his complete subjection to capital, as an organization of labour that increases its productive power, denounces with equal vigour every conscious attempt to control and regulate the process of production socially, as an inroad upon such sacred things as the rights of property, freedom and the self-determining ‘genius’ of the individual capitalist. it is very characteristic that the enthusiastic apologists of the factory system have nothing more damning to urge against a general organization of labour in society than that it would turn the whole of society into a factory. (marx 1867/1977, 477) in effect not only does the petty bourgeoisie fear proletarianization precisely because it knows, as only practioners can, what is involved in proletarian exploitation and oppression, but also because they can only think of socialism as the generalization of their current autonomy which rests on the radical heteronomy of others rather than as a socialised, collective, autonomy of all. marx was to remark ironically in capital how ‘[t]he sphere of circulation or commodity exchange ... is in fact the very eden of the innate rights of man. it is the exclusive realm of freedom, equality, property and bentham’ (marx 1867/1977, 280). this fictional idea formed the basis of the ‘socialism’ of petty bourgeois ‘socialists’ like proudhon: ‘proudhon creates his ideal of justice, of “justice éternelle”, from the juridical relations that correspond to the production of commodities: he thereby proves, to the consolation of all good petty bourgeois, that the production of commodities is a form as eternal as justice’ (marx 1867/1977, 178n). since such utopias rest on a narrowly one-sided view of capitalist society, ignoring the extraction of surplus labour in production, their proponents necessarily fail to appreciate how capitalism, and the wage labour which is its necessary foundation, alone generalises commodity production and the market, and does so necessarily at the expense of a ‘dialectical inversion’ of the laws of commodity production: only where wage-labour is its basis does commodity production impose itself upon society as a whole; but it is also true that only there does it unfold all its hidden potentialities. to say that the intervention of wage labour adulterates commodity production is to say that commodity production must not develop if it is to remain unadulterated. to the extent that commodity production, in accordance with its own immanent laws, undergoes a further development into capitalist production, the property laws of commodity production must undergo a dialectical inversion so that they become the laws of capitalist appropriation. (marx 1867/1977, 733-4) engels in his introduction to german edition of the poverty of philosophy put his finger on the contradictory political kernel of proudhonism – its desire to abolish large scale industry and the proletariat which are the conditions of existence of petty commodity production. and the petty bourgeois especially, whose honest labour – even if it is only that of his workmen and apprentices – is daily more and more depreciated in value by the competition of large-scale production and machinery, this small-scale producer especially must long for a society in which the exchange of products according to their labour value is at last a complete and invariable truth. in other words, he must long for a society in which a single law of commodity production prevails exclusively and in full, but in 12 which the conditions are abolished in which it can prevail at all, viz., the other laws of commodity production and, later, of capitalist production. (marx 1847, 12) to this inability to understand that petty commodity production only exits on the basis of the generalization of commodity production which capitalism effects through large scale industry and wage labour, which formed the basis of proudhon’s anti-statism, the new communists add their own political baggage, a product of later history. the withering state of proletarian dictatorship when badiou alleges that marx’s account of the paris commune is ambiguous, marshals engels’ elaboration on it to testify further to this alleged ambiguity and rests his case against the statism of actually existing communism in the east and ‘capitalo-parliamentarism’ in the west on marx and engels’ writing on the paris commune, he pins on them a conception of the state they never had. this is the straightforward liberal and neoliberal conception of the state as the realm of coercion and the market as the realm of freedom. not only does it overlook the mutual interdependence of the two in capitalist society but, much more seriously, allows the conception of the dictatorship of the proletariat to be opposed to that of the ‘withering away of the state’. but in what marx and engels meant by the state, the former was the necessary instrument of the latter. for the state was not the administrative apparatus dreaded by liberals and neoliberals but an instrument of class domination. in this sense marx and engels’ assessment of the paris commune as an exemplary dictatorship of the proletariat – ‘do you want to know what the dictatorship of the proletariat looks like? look at the paris commune. that was the dictatorship of the proletariat’ (engels 1891) – was anything but ambiguous: its [the paris commune’s] true secret was this. it was essentially a working-class government, the produce of the struggle of the producing against the appropriating class, the political form at last discovered under which to work out the economical emancipation of labour. (marx 1871/1974, 212) in the civil war in france, marx records first the full extent of the force and fraud the counter-revolution headed by thiers had mustered against the popular cause. it was what gave the commune that character marx and engels would later recognise as the dictatorship of the proletariat, the necessary instrument of the ‘withering away’ of the state as class domination and its replacement by freely associated producers which is communism. ‘armed paris was the only serious obstacle in the way of the counter-revolutionary conspiracy’ (marx 1871/174, 198). he then emphasised the scrupulously defensive character of the commune’s fight against counterrevolution. in a few compressed paragraphs he traced the transformation of the feudal absolutist state into an instrument of capitalist class domination (marx 1871/1974, 206-8) before going on to describe the measures through which the commune, during its all-too-short life, began converting it into an instrument of workers’ power: ‘the suppression of the standing army, and the substitution for it of the armed people’; the merging executive and legislative power; the enforcement of accountability on the police; public service at workmen’s wages; education and science freed from state and church influence and provided free; among others. contrary to the fashionable portrayal of marx as the ur-globalist through the repeated quotation of the same passages from the communist manifesto (for a fuller critique of this tendency see desai forthcoming), marx also saw the commune as reorganising ‘that unity of great nations which, if originally brought about by political force, has now become a powerful coefficient of social production’ (marx 1871/1974, 211) and doing so in a spirit of inter-nationalism. 13 of course, ‘the old world writhed in convulsions of rage at the sight of the red flag, the symbol of the republic of labour, floating over the hôtel de ville’ (marx 1871/1974, 214) and the commune was brutally overpowered after a mere two months by the joint forces of thiers and bismarck, and this unparalleled breach of the law of nations, even as understood by the old-world lawyers, instead of arousing the ‘civilized’ governments of europe to declare the felonious prussian government ... an outlaw amongst nations, only incites them to consider whether the few victims who escape the double cordon around paris are not to be given up to the hangman at versailles! (marx 1871/1974, 231) the commune, the dictatorship of the proletariat was, marx noted in the first draft of the civil war in france, ‘the reabsorption of state power by society’ (marx 1871/1974, 250). it dispelled the delusion as if administration and political governing were mysteries, transcendent functions only to be trusted to the hands of a trained caste – state parasites, richly paid sycophants and sinecurists, in the higher posts, absorbing the intelligence of the masses and turning them against themselves in the lower places of the hierarchy. (marx 1871/1974, 251) and the commune embodied the consciousness that the superseding of the economical conditions of the slavery of labour by the conditions of free and associated labour can only be the progressive work of time (that economical transformation), that they require not only a change of distribution, but a new organization of production, or rather the delivery (setting free) of the social forms of production in present organized labour (engendered by present industry), of the trammels of slavery, of their present class character and their harmonious national and international coordination. (marx 1871/1974, 253). [emphasis added] it is such ‘general organization of labour in society’ badiou and the new communists would reject. they are, of course, free to do so. what they are not free to do is assert that any ‘ambiguity’ in marx’s or engels’ accounts warrants it. nor are they free to assert that marx or engels criticised any ‘statist incapacities’ of the commune – certainly not in the civil war in france, or its first draft, or yet engels’ 1891 introduction. it was not out of any love for centralization or authority but because it was historically necessary in a society whose productive capacity had come to rest on large scale production that marx and engels so resolutely opposed anarchist tendencies and so scathingly criticised petty bourgeois fantasies about doing away with any overall coordination of the economy, fantasies that also rested, in effect, on accepting market coordination. but the reality that capitalism, necessarily large scale and based on wage labour alone generalised market relations and commodity production was bound to undermine the implementation of such fantasies. engels’ remarks on the fate of the proudhonists and the blanquists in his 1891 introduction highlight this contradiction. proudhonists, despite their ‘positive hatred’ for association, found that ‘large scale industry had so much ceased to be an exceptional case that by far the most important decrees of the commune instituted an organization of large scale industry and even of manufacture which was not based only on the association of workers in each factory, but also aimed at combining all these associations into one great union; in short an organization which, as marx quite rightly says in the civil war, must necessarily have led in the end to communism, that is to say, the direct antithesis of the proudhon doctrine’. for their part, the centralizing and conspiratorial blanquists, a majority in the commune, found themselves party to the fall of centralized and oppressive state 14 power (engels 1891). one may note in concluding this part that while žižek explicitly supports the importance of both party and state, in practice the unity of his three components of the working class appears to be the horizon of his conception of politics. everybody’s property versus common property the new communists’ incantation of marx and communism may signify a genuine desire to make their understanding of capitalism compatible with marx’s powerful critique, but in the case of all the main points on which they seek marx’s authority, they only end up proving that incantation never did require understanding. take their conception of that centrepiece of their project, the commons. as a very early critique (ciriacy-wantrup and bishop 1975) of the garret hardin’s (1968) understanding of ‘the commons’, which appears to underlie the new communists’ vision of communism, pointed out, the commons were never ‘everybody’s property’. rather the commons were defined by complex institutional arrangements which provided rights to some sets of users and explicitly excluded others. this implies two things. first, the earth, culture and language or even our genetic inheritance are only open to corporate predation to the extent that they are not protected by regimes of property rights, or when the regimes which do protect them are too weak. second, protecting them requires creating rules of access and use which have to be made and enforced by states. while under feudalism, with its dispersal of political power, such regimes were necessarily local, they are not under modern capitalist conditions and are unlikely to be at least in early socialist or communist ones. there is no alternative to state enforcement. but there is a question of whose interests such arrangements and their enforcement will protect. given marx’s complex chronicling of the use of political power to usurp common property and replace the rules governing them by private property (marx 1867/1977, 873-941), and his account of the manner in which the paris commune sought to transform the state into an instrument of workers power, including extending collective ownership over the means of production discussed above, he would have understood this point which appears to have evaded our new communists entirely. indeed, contrary to hardt, marx never spoke of communism as the abolition of property per se, only of private property (marx 1975, 348). when he quoted marx saying that ‘private property has made us so stupid that an object is only ours when we have it’, hardt did not tell us that marx continued thus: ‘when it exists for us as capital or when we directly possess, eat, drink, wear, inhabit it, etc., in short when we use it’. marx was, therefore, criticising private property, and capitalist private property, not property as such. as he saw it, under communism capitalist private property would be replaced with forms of collective property appropriate to the structures of production, those inherited from capitalism and those created anew. the abolition of property as such which hardt and negri appear to desire, would only lead to the sort of free-for-all that hardin, not to mention hobbes, feared, a sort of state of nature in which the powerful would be able to appropriate at the expense of the weak. no amount of poetry about sensuous human appropriation of the world can hide the fact that the new communists of the commons not only misunderstand their central category – the commons – but also marx’s position on it, even as they seek to licence so much of their discourse through it. marx was not ‘searching’ for any ‘common’ hardt would recognise. marx’s understanding of property, evinced not least in the economic and philosophical manuscripts to which hardt refers, was too grounded, not to mention historically sophisticated, to make that mistake. 15 vampire capitalism or zombie workers another critical and, prima facie, disingenuous, misunderstanding concerns the new communists’ account of capitalism and the place of their own ‘creative class’ in it. negri and žižek attempt to found carlo vercellone’s trendy account of ‘cognitive capitalism’ (see e.g. vercellone 2008; for a critique see camfield 2007) in marx’s own work. correctly quoting negri who was, in turn, quoting marx from the grundrisse on how the development of fixed capital expresses the extent to which ‘social knowledge has become a direct force of production’ (marx 1973, 706), žižek (2010, 222) goes on to claim, incorrectly, that with the development of general social knowledge, the ‘productive power of labour’ is thus ‘itself the greatest productive power. from the standpoint of the direct production process it can be regarded as the production of fixed capital. this fixed capital is man himself’. marx certainly speaks of social knowledge becoming a direct force of production in many places. however, the matter of the worker, intellectual or otherwise, becoming ‘fixed capital’ is another matter altogether. for those conversant with capital, it is simply inconceivable that marx could have said such a thing. he distinguished clearly between the worker as living labour in contrast to constant (fixed and circulating) capital as dead labour, between the worker who adds value and the capital which only transfers all or part of its value (depending on whether it is used up entirely or only partially in a given production process). a closer look at the passages in question, and at the grundrisse where they occur, shows that marx does not, in fact, give up on this distinction, the keystone of his theory of value. martin nicolaus points out in his foreword to the grundrisse that in this work marx’s terminology, particularly relating to value, and money, ‘is not quite untangled from and clear of the ricardian lexicon’. this means that these questions are best studied from works marx prepared for publication after the grundrisse’ (nicolaus 1973, 16–17). but on the particular point at issue, žižek and negri’s argument cannot even be given the benefit of any doubts this might create. the phrase ‘this fixed capital being man himself’ occurs in a critique of the bourgeois conception of economy or saving which marx contrasts with ‘real economy.’ by that he means how economy or saving should be viewed, and would be, in a communist society: as the saving of labour time, the development of the human capacity to produce. whereas in capitalist society such saving takes the form of the accumulation of fixed capital, in a socialist society it would take the form of the development of human capacities. he adds that in a communist society, the development of human capacities, this sort of ‘saving,’ would be also inseparable from the human capacity to consume, completely upending the everyday bourgeois conception of saving as abstinence from consumption (marx 1973, 711–12). it is true that in this passage marx moves between using categories that apply to capitalist society alone, which form the focus of his discussion in capital, and those that emerge from the conception of ‘production in general’ which abstracts the common features of all social forms of production (marx 1973, 85) and which occur in capital only briefly, as for instance in the profound ruminations on labour and its history which serve to point up the specificity, not to mention absurdity and monstrosity, of capitalist conditions and categories (marx 1867/1977, 283–92). but he sets out the distinction between these two sets of categories at the outset of the grundrisse. while there are elements common to all forms of production, precisely those elements 16 . . .which are not general and common, must be separated out from the determinations valid for production as such, so that in their unity – which arises already fromt he identity of the subject, humanity, and of the object, nature – their essential difference is not forgotten. the whole profundity of those modern economists who demonstrate the eternity and harmoniousness of the existing social relations lies in this forgetting. for example, no production is possible without an instrument of production, even if this instrument is only the hand. no production without stored-up, past labour, even if it is only the facility gathered together and concentrated in the hand of the savage by repeated practice. capital is, among other things, also an instrument of production, also objectified, past labour. therefore capital is a general, eternal relation of nature; that is if i leave out just the specific quality which alone makes ‘instrument of production’ and ‘stored-up labour’ into capital (marx 1973, 85–6; emphasis added). so not only are we clear that for marx capital, fixed or otherwise, can occur only under capitalist conditions but also that it is precisely a characteristic of ‘modern economists’ and their apologia for capital that they confound the difference between stored-up past labour and capital. žižek and negri are welcome to agree with the modern economists, just not welcome to take marx’s authority for doing so. the weight of the distinction marx makes repeatedly in capital between the worker as living, value producing and value-transferring labour in contrast to constant (fixed and circulating) capital as dead labour simply crushes any attempt to argue that workers are, under any capitalist circumstances, ‘fixed capital’. marx often and appropriately spoke of capital as a vampire, dead labour subsisting and growing by extracting the blood, the labour, of living workers, but the conversion of workers under capitalism into another category of the ‘undead’ deserves a place in the annals of solecism. the knowledge producer cannot be fixed capital for two further reasons. on the one hand knowledge production is unproductive labour. that is to say, that while it is very useful, and thus productive of piles of use values, it is unproductive of value or surplus value. and those knowledge workers who resent this insinuation, as it were, simply fail to understand, or do not know, that according to marx the production of value is the basis only of the extraction of surplus value and that uniquely capitalist form of surplus labour, profit. by contrast, communism would be a system for the production of use values exclusively. if one understood this there would be no ground to disdain unproductive labour or resent being called an unproductive worker. secondly, žižek and negri also appear to be victims of the neoclassical and, in marx’s time, vulgar economic, illusion that capital is ‘productive’, an illusion that conveniently justifies profit which is, according to marx, rooted in the extraction of surplus value, and therefore exploitation. marx ridicules the ‘vulgar economists’ who speak of the ‘productivity of capital’ (e.g. marx 1867/1977, 426). thus, while žižek and negri see intellectual workers as fixed capital, marx would never make such a conflation. therefore, whatever the merit of the following claim, that ‘since capital organizes its exploitation by appearing as “fixed capital” against living labour, the moment the key component of fixed capital is “man himself”, its “general social knowledge”, the very social foundation of capitalist exploitation is undermined, and the role of capital becomes purely parasitic’ (žižek 2010, 222), it has no foundation in marx. 17 the value of knowledge and the knowledge of value indeed, it is only their general ignorance of marx’s critique of political economy, not to mention its hopeless conflation with the categories of bourgeois political economy which permits the new communists to announce the demise of some such as ‘profit’ and the emergence of other such as ‘profit-as-becoming-rent’. not only do the new communists rely on questionable ideas about the emergence of some sort of knowledge/information/cognitive capitalism (huws 1999), nothing could be farther from the truth than that ‘cognitive capitalism’, ‘information society’ and ‘knowledge economy’ and their attendant production processes are qualitatively different from the commodity production analysed by marx. as marx pointed out, all labour processes involve knowledge (marx 1867/1977, 284) and in this the so-called information commodities are no different except in degree. all such knowledge is social and is embodied in the collective worker and this, while making the working class as a whole more productive, in part by embodying more knowledge in some parts of it than others, by no means turns it, or any part of it, into fixed capital. knowledge does not create value. though it may generate ever greater heaps of use values and make labour more productive, it is not itself an intermediate good. the value of any intermediate good is only transferred to the product in being destroyed in the intermediate form and knowledge which is embodied in the collective worker is never destroyed but can be used repeatedly and for many different purposes. nor does knowledge have value – though it may have incomparable use value, it does not have value because it is the product of a long human history and not of capitalist production: as marx said, things are useful in many ways and ‘the discovery of these ways and hence of the manifold uses of things is the work of history’ (marx 1867/977, 126). just as, for marx, nature has use value but no value, so ‘science, generally speaking, costs the capitalist nothing, a fact that by no means prevents him from exploiting it’ (marx 1867/1977, 508n). even today, the further development of knowledge takes place within systems – whether public schools or universities, not to mention extra-institutional locations – which produce only use values. as fred block (2008) has recently recorded, this is especially true of the avowedly free market us in the past several decades where the attempt to create property rights over certain elements of knowledge has rested, nevertheless, on a ‘hidden developmental state’. thus, there has been no ‘privatization of the general intellect itself’ (žižek 2010, 224) and when žižek claims that marx overlooked it he is engaging in a double effrontery: falsely attributing the idea of the worker turned into fixed capital to marx and then accusing him of not anticipating the alleged ‘privatization of the general intellect’. rent versus profit? to speak of profit being replaced by rent is simply absurd. as marx and the classical political economy of his time clearly saw, rent is, like interest, an unearned deduction from profit and can never exist independently of, let alone replace, the latter in a commodity producing society. the idea could only have occurred to those unfamiliar with marx’s economic analysis: his labour theory of value which clearly states that the value of things is determined by the socially necessary labour embodied in it; his clear recognition that while things which do not have value can still have a price, payment of which represents deductions from wages and profits; his analysis of productive and unproductive labour; and his analysis of the distribution of profit to 18 the owners of land and money capital. the general unfamiliarity with these ideas is licensed by marxist economists long inured to adapting marx’s critique of political economy to neoclassical or marginalist economics even though it differed on the central idea of value, rejecting classical political economy’s conception of objective value in favor of a subjective idea of value, based on utility and individual preferences (clarke, 1991; desai 2010). this ‘marxism without marx’, as freeman (2010) calls it, habituates our new communists to think in neoclassical or vulgar economic terms such as factor endowments and incomes in which ‘land’ and ‘capital’, not to mention ‘knowledge’, are regarded as productive of value. as for the idea that the principal source of surplus in contemporary society is not profit extracted from workers but rent from the privatization of the ‘general intellect’ of the ‘creative class’, one can only admire the size of the creative class’s collective ego which assumes that the only ‘value’ these commodities embody is that of ‘millions of intellectual workers’ who are ‘no longer separated from the objective conditions of their labour since they own their own computers’ (žižek 2010, 225). quite apart from there being a big question whether the ‘general intellect’ has been privatized at all (archibugi and filipetti 2010), there is the small matter of the surplus value, and consequently profit, extracted from labour of those who produce the material objects which the products of ‘cognitive capitalism’ still are, not to mention those on which the ‘creative class’ must still subsist. the democracy of profit and the authoritarianism of rent? žižek’s associated argument that the turn towards authoritarianism is rooted in this transition from profit to rent is independently problematic. the idea that ‘till now, capitalism seemed inextricably linked with democracy’ betrays such a profoundly a-historical and unmarxist understanding as to take one’s breath away. capitalism’s relationship to liberal democracy was always profoundly conflicted. while the past thirty years of neoliberalism – with its rising inequality, attacks on unions, denaturing of democracy by money and the media and even the very idea of democracy – may have made this relationship even more antagonistic, it was hardly idyllic before that. that liberal democracy accompanied capitalism should surely be considered a tautology: it was hardly going to accompany feudalism. but it took generations of workers’, women’s, minorities and colonial peoples’ struggles to realise universal suffrage and democratise the liberal order of capitalist private property in country after country (a very partial and subjective list of key works on these themes: therborn 1977; cammack 1997; eley 2002; macpherson 1979; leys 1999; mair 2006). this should be familiar to any leftist. sadly, it is not. the new communists and marxism without marx perry anderson remarked long ago that western marxism, a product of defeat, ‘inverted the trajectory of marx’s own development....where the founder of historical materialism moved progressively from philosophy to politics and then economics, as the central terrain of this thought, the successors of the tradition that emerged after 1920 increasingly turned back from economics and politics to philosophy’, that they ‘concentrate[d] overwhelmingly on the study of superstructures’ and left ‘the central economic and political realities that have dominated world history’ out of account (anderson 1976, 52, 75, 103). however, even this judgement seems on reflection too lenient. for marx’s philosophy could hardly be separated from his economic and political analyses and not surprisingly the chief deficiencies of today’s new communist 19 philosophers lie precisely in their economic and political analyses and their misapprehensions of the very marxist ideas they wish to rely on. one may also note the historical incongruity of a conference of avowedly left intellectuals in the midst of the greatest economic crisis of capitalism for 70 years not only devoid of economic analysis but seeking to revive communism as an ‘idea’, rather than attempting, through economic and political analyses, to discern ‘the elements of the new society with which the old collapsing bourgeois society itself is pregnant’ indeed, worse, of discerning only themselves – the ‘creative class’ as fixed capital (!). it is this class which now becomes so central to capital that its income now is no longer profit from the extraction of surplus labour but rent from the ‘privatization of the general intellect’, namely themselves. even after making their own labour the fount of all value in contemporary society, their emancipatory vision can aspire to no more than the freedom of this class to acquire those ‘human faculties, competences, knowledges, and affects – those acquired on the job but more importantly those accumulated outside work’ which ‘are directly productive of value’ (hardt 2010, 141) through a liberation of the conditions of their social reproduction from neoliberal privatization. this is the stunted utopia of the class that stands to ‘lose everything’. as for those who do indeed have nothing to lose, corralled into the categories of ‘new proletarians’ and the ‘excluded’, they turn out to be little more than a phantom class, a product of a radicalization of the concept of the proletariat ‘to an existential level well beyond marx’s imagination’. indeed, for all its confusions, 19th century proudhonism cuts a rather more radical figure than its 21st century epigones. whereas proudhonism represented the independent commodity production, the new communists represent a ‘creative class’ whose leading edge are employees of big capital. whereas proudhonism proclaimed the abolition of capital, albeit equating it with big capital and the evil of wage labour, as their goal, the new communists appear at best confused and at worst disingenuous when they take the name of a movement which aimed at the revolutionary transformation of capitalism but aimed explicitly at its preservation. at best the new communists seek to prevent the abolition of their own conditions of labour through neoliberal privatization, though here too they are inconsistent, saying on the one hand that ‘any attempt to privatize [intellect] becomes problematic’ thanks to its social character and, on the other, launching their philippics against the possibility. in fact, they need not have bothered. in reality the intellectual property rights regime which the west and particularly the united states have attempted to impose on the world ‘has not and could not change the nature of knowledge and the ways in which this can be transferred [or not] among economic agents’ (archibugi and filipetti 2010, 146). the new communism of the commons is, moreover, unlikely to have emancipatory consequences for the vast masses whose name they conveniently invoke. their account of ‘cognitive capitalism’ not only does not criticise but in fact rests on the division of intellectual and manual labour whose consequences not only marx but also smith criticised so powerfully. indeed, so far it is also unclear how the interests of the poor might be affected if this relatively privileged class seeks, nimby-style, to protect nature, which it considers ‘the inheritance of humanity as a whole’, conveniently ignoring not only the division of humanity into nations but its division into rich and poor nations and their own location in the former, from ‘corporate control’, while explicitly rejecting any state role in doing so. such anti-statism forgets the reality of powerful state protections in the first world and would leave third world populations defenceless against the predations of foreign and domestic capital (for another critique of this 20 tendency see desai 2009). truly the new communists treat marxist and communist ideas as a grab-bag of accessories with which to trick out their absurd imaginings as communism. use values, the state and revolution in conclusion, i would like to reflect on three themes: why produce value? what’s exactly wrong with ‘statism’? what might revolution look like? the first point is easily dealt with: the flawed idea that the labour of the creative class has become ‘value’ rests on an all-too-common illusion that the production of value in capitalism was, according to marx, a good thing. while he necessarily focused on it in his critique of the logic of capital, the reality is that communism would, in marxist terms, require the cessation of the production of value and a vast expansion of the production of use-values and the welfare state, the great gain of the western working class and nothing if not the result of parliamentary and state-focused politics, and the mitigation of oppression it represents is, precisely, an expansion of the production of use values. that our new communists do not understand this is the result of a problem they share with the proudhonism of the 19th century: an inability to distinguish between value and use value. the expansion of all means of producing use values – whether home/autonomous production or through common/state production would, in any transition from capitalism, be part of a broader strategy of reducing the production of value and increasing the production of use-values. this brings us to our second point: just as the new communists conflate use values and exchange values, so they conflate regulation and the state. as i have already pointed out, deluded individualism of the new petty bourgeois concept of itself as a creative class leads them to defer and deny any possibility of ‘a general organization of labour in society’ and in this it is of little consequence that emancipation for most will involve precisely such a general organization of labour in society. for marx and engels, as we saw above, the state was above all an instrument of class domination. it is this stateness of the state that would wither away as soon as there was no need for class domination. by the same token, the need to administer the complex division of labour – in factories and in society – would remain at least in the transition period and, though later democratic decisions in favour of decentralization may diminish central authority, it is unlikely to be entirely eliminated. while as one side of the division between mental and manual labour the conditions of work of the ‘creative class’ who the new communists seem primarily to represent might resemble small scale workplaces, their very output enables ever more large scale and complex forms of divisions of labour within and between firms. and this is where most people work, or hope to work, and this productive apparatus would still have to be administered, and transformed. but the organization – the self-organization of producers – would no longer be a state in so far as there was no class (or gender or other, marx and engels would hardly have disagreed) domination and any revolution would have to be immediately consolidated by a dictatorship of the proletariat in so far as there was counter-revolutionary activity. finally, we come to revolution. revolutionary politics is widely and rightly contrasted with reformism, the belief that capitalism’s problems are limited and can be resolved without questioning its fundamental basis in private property in the means of production, is not the same as reforms. the latter may or may not be part of fundamental critiques of capitalism (or patriarchy, racism or imperialism) but that would not, and historically has not, prevented a wide range of political perspectives and forces from cooperating in them. moreover, what makes a 21 demand a reform or revolutionary depends on the historical conjuncture. a modest demand for, say, cheap bread, might turn out to be revolutionary if the ruling order was unable or unwilling to fulfill it and the political energy and organization existed behind it to inspire people to believe that if it is not going to be fulfilled it was time for people to remove the ruling order and fulfill it for themselves, and enable them to do so. nor is the achievement of reforms in itself to be disdained. the capitalist class opposes reforms for good reason: they strengthen the capacity and will of working classes to pursue more ambitious goals. kalecki (1943) had identified much the same logic in his analysis of the political implication of full employment – it was because full employment as a reform would have this effect that he recognized that it would be politically difficult for the bourgeoisie to accept. how reforms and revolution can be linked dialectically (patnaik 2009b) was illustrated in the case of sweden where a long history of working class gains led, at its culmination, in ‘reforms’ which entailed the gradual transfer of the ownership of the means of production to workers (korpi, 1983), though it failed thanks to a capitalist counteroffensive. this complex relationship between reform and revolution is especially important to understand because no one, not even the citizens of the most advanced capitalist country, lives in a ‘pure’ capitalism. actually existing capitalism everywhere necessarily (and not least because they are not abstract, universal capitalisms, no matter how universalizing the operation of the law of value, but national ones) rely on a number of political, social, and cultural structures and practices – both traditional and modern. while some of these serve to intensify oppression and exploitation, and reforms would ease but not eliminate them, others are precisely the result of reforms. they furnish the second aspect of karl polanyi’s (1944/1985) ‘double movement’ – the movement of social protection against the incursion of capitalism or what he called ‘market society’. these measures constitute, especially in the advanced capitalist world, a dense network of structures and practices – from city zoning restrictions to national regulatory and welfare structures – that modify the dynamics of capitalism quite substantially (elson, 1988, 2000). indeed, as critical legal scholars are reminding us, even in the most highly developed capitalist states, and even after three decades of neoliberalism, ‘the public-private, state-market dichotomies and the notions of “natural”, market-based laws of distribution which underlie much contemporary social, economic and legal analyses’ remain highly questionable. the ‘[d]istribution of the social product’ is ‘a phenomenon shaped by law’ and that ‘choice of law and policy remains pervasive’ (ireland 2003). making these legal and policy choices, rather than assuming they do not exist as the ‘myth of deregulation’ encourages us to do as much as the new communist mantra of a politics distanced from states and even democracies, is seamless with what elson calls ‘socializing the market’, in effect expanding non-capitalist production of use values in ways that favor working people and strengthen their organizations while limiting the prerogatives of capital and private property. all these are reforms worthy of achievement in their own right. their pursuit would be a more concrete form of revolutionary politics than the, in effect, magical conception of the new communists who cannot tell us how exactly the ‘instauration of the citizen’s income’ is to be achieved through a mere unity of the working classes, and apart from a politics focused on the state. if undertaken with sufficient organization, seriousness of purpose and political will to take on the inevitable opposition to them, there is no telling at what point determined struggles to extend the sphere of common services, use value production and reform in favour of working people will involve the replacement of the capitalist ruling classes and their order. the problem will certainly not be the reforms themselves, nor will it be engagement with parliamentary politics. it need not be, and is not, all ‘capitalo-parliamentarism’, 22 depressing though recent decades have been on this front. the ‘parliamentary destiny’ of the left is not only to be lamented. the decisive factor will be how ambitious we are in conceiving the reforms, how active we are in organizing for them, how capable we are of achieving them and how seriously we mean to achieve them. as a new cycle of protest begins around the world – from cairo to madison, clearly showing that the citizens of the former are as little subject to ‘populist fundamentalism’ as those of the latter are to ‘enlightened hedonism or liberal multiculturalism’ – it is perhaps time to treat the ‘legacy of may ’68’ less reverentially and reach further back to the real legacy of the spring of 1871: the first embodiment of popular power. acknowledgements this paper originated in my work for a workshop on “diminishing returns? feminist engagements with the return to the commons” at the kent centre for law, gender, and sexuality at the university of kent in canterbury. i am grateful to the workshop organizers, particularly stacy douglas, donatella alessandrini and brenna bhandar for their invitation and to all the participants for stimulating discussions. it provided a welcome opportunity to sort out my own thinking on the new communism of the commons. alan freeman’s comments on an earlier draft were both enthusiastic and penetrating. outstanding problems remain, of course, my responsibility. notes on the contributor radhika desai is professor of political studies in university of manitoba. she is the author of slouching towards ayodhya (2004) and intellectuals and socialism (1994), editor of developmental and cultural nationalisms (2009) and co-editor of research in political economy (volume 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reader in law, kent law school, university of kent, uk, email k.bedford@kent.ac.uk. ] introduction together with two colleagues,[footnoteref:2] i am conducting a three year, economic and social research council-funded research project into gambling regulation (a full house: developing a new socio-legal theory of gambling regulation, 2013-6). the project uses bingo to explore the political economy of gambling regulation. bingo is a game where players cross numbers, called randomly, off a purchased ticket to form patterns and win prizes. it has a distinctive player demographic in many countries, dominated by older, working class women, and it is played in both commercial and non-commercial settings (such as churches, facilities owned by veterans’ organisations, hospitals, and care homes). in its own terms – as a globally salient and distinctive gambling form that often merges playful risk-taking with charity and community – we owe bingo more attention in our critical discussions of the law and political economy of speculative consumption. i provide a basic outline of how the project seeks to contribute to such discussions in section 1. however in this research note i wish to explore specifically what bingo might contribute to our debates within feminist political economy. i hence focus on two further themes: [2: dr. oscar alvarez-macotela, and professor toni williams. the research team includes diverse expertise, including in law and development, gender and regulation, financial law, consumer law, and feminist political economy.] 1. how bingo may contribute to feminist accounts of the governance and regulation of ‘everyday’ risk and speculative consumption (section 2); and 2. how bingo may help take forward critical analysis of volunteering as a specific form of unpaid work (section 3). put more simply, i ask what bingo might offer to feminist scholars interested in voluntary risk-taking, and volunteer labour. the project is in its early phases, and hence i am presenting questions and aims rather than findings. however i hope that by relating the research to these themes i can gesture to some ways in which the bingo project may draw from, and contribute to, other efforts to gender discussions of labour, law, and risk regulation. section 1: project overview and methods many scholars have analyzed the changing nature of risk regulation in contemporary market economies (adam, beck and van loon 2000; giddens 1999; taylor-gooby and zinn 2006; mohun 2013). gambling is often important in these debates, whether framed as a form of dangerous, unproductive risk-taking to which new stock market trends are compared (strange 1986), or used as a site of research into the regulation of risk and speculation in its own right (neary and taylor 2006; reith 2007; cosgrove 2006; kingma 2010; cassidy 2009). our project seeks to make a contribution to those debates by focusing on bingo. bingo is a markedly under-researched site, attracting a fraction of the academic attention given to other gambling forms. the vast majority of research on gambling regulation and political economy is devoted to casinos: they are often positioned, including by those on the left, as the globally salient form of gambling in neoliberal times.[footnoteref:3] yet in the uk bingo halls outnumber casinos 4 to 1 and employ more people;[footnoteref:4] and in alabama bingo, not casinos, dominated the 2010 governor’s race (white, brown and dowd 2010). more people visit ontario’s bingo halls than visit toronto’s iconic cn tower,[footnoteref:5] and when brazilian president lula criminalized bingo in 2004 there were protest marches in rio by players and employees of clubs. in north america bingo has long been a site of struggle for indigenous sovereignty over economic development on reserve land.[footnoteref:6] yet despite this evidence of the game’s significance, and despite repeated calls – over decades – for more scholarly attention to the sector (dixey 1987; downs 2009), bingo remains “relatively virgin territory for researchers” (chapple and nofziger 2000, 490). [3: see cassidy (2009) for a critique.] [4: in late 2010 there were 784 uk premises licensed to offer bingo (compared with 145 licensed casinos), and bingo halls employed 17,896 people (compared to 13,094 employed by casinos) (gambling commission 2011, 16).] [5: fieldnotes from e-bingo marketing presentation, ottawa, 2009.] [6: e.g. the seminole tribe contested the state of florida’s attempts to restrict high-stakes bingo games on its land, prompting litigation that eventually resulted in the 1988 indian gaming regulatory act (pub.l. 100-497, 25 u.s.c), the federal legislation that governs state-tribe gaming compacts in the u.s. bingo played a key role in the conflict over gambling and jurisdiction in the mohawk territory of akwesasne (johansen 1993), one result of which was the establishment of internet gaming services on the kahnawá:ke territory (belanger 2011).] in particular, we are drawn to bingo as a research topic because it is enmeshed with law and political economy in distinctive ways. it is a key site for charity fundraising, and even when played commercially it is associated with community and social welfare more often than risky profit-making. i have carried out three pilot studies on bingo regulation in kent (england) and ontario and alberta (canada) showing that regulators struggle to make sense of the challenges posed by this liminal positioning (bedford 2011). moreover, this positioning makes bingo the key case for studying how the governance of speculative consumption relates to charity. for example, we can use the game to consider how the regulation of gambling responds to, and is informed by, concerns within charity law about fundraising regulation, and we can look to bingo to reveal how governments see speculation within initiatives to generate community cohesion. in addition, the project seeks to directly contribute to socio-legal work on gender, risk, and regulation. little of the research on women's gambling addresses issues of law, regulation, or political economy. hence the project aims make a distinctive contribution by connecting the study of a key site of working class women’s gambling to research on the gendered nature, and effects, of risk and regulation. such research has shown that gendered performances of risk-taking may be used by male traders to impress other men (mcdowell 2010), in ways that undermine the efficacy of regulation. this project will use bingo as a lens through which to investigate if, and how, gendered assumptions about risk inform the regulation of a feminized gambling sphere, and to advance our knowledge about what attention to gender can bring to current debates about law, regulation, and political economy. using four case studies of bingo regulation (england and wales; canada; brazil; and online play offered to residents of eu member states), the research aims to provide the first systematic account of how bingo is regulated. we have chosen a full range of case studies, involving multiple levels of governance (local/municipal, provincial, national, and transnational). case studies include places where bingo is run for both commercial and charitable purposes (england and wales); those where it is almost entirely a charitable domain (canada); and those where it has recently been made illegal (brazil). we will ascertain the key legal and policy challenges involved in regulating bingo as experienced by a variety of stakeholders, and make recommendations to policymakers, the bingo industry, third sector organizations, and academics. key questions include: how, and to what end, is bingo regulated in each jurisdiction? what is the role of charity, criminal, and commercial law? where is enforcement power located, in law and practice? are laws governing bingo being relaxed as part of trends towards global gambling liberalization? is play being standardized, converging towards a global norm? which rules are most important to various stakeholders, and why? which are ignored and why? whose priorities appear to be reflected in new legislation and case law? what are the key regulatory challenges and disputes about? how do various actors understand those challenges, and seek to resolve them? how, if at all, are responsible gambling concerns evident in relation to bingo regulation? how, and to what extent, does it matter to regulators that bingo is part of a gendered gambling culture? does the female-dominated nature of the game affect its regulation? which charities and community projects is bingo money used to fund? what relationship do those projects have to bingo players? to the commercial arm of the industry? what strategies, if any, are being undertaken by policymakers to support bingo, and how do these strategies position other stakeholders (the players, the volunteers, the employees etc.)? what accounts for the perceived success or failure of those initiatives? what does the regulation of bingo in different contexts tell us about how governments perceive the role of profit-making within broader community welfare projects? to answer these questions we will: a) review the current legislation, licensing guidance, and case law shaping regulation of gambling in general and bingo in particular; b) analyze public statements from bingo stakeholders (i.e. in research recommendations on the sector commissioned by regulatory agencies; reports in the national and local press/in online blogs; responses to government or provincial consultations; advocacy from industry associations, charity associations); c) interview key stakeholders involved in bingo regulation d) conduct participant observation in legal bingo games (virtual and land-based) to experience how rules and regulations are interpreted and enforced. within each case, coding of data will initially follow a simple two stage model: 1) open coding to discover conceptual categories (replicable and sustained, rather than one-off observations); 2) axial coding (relating the concepts to each other in order to develop theoretical categories). in a variation from strict versions of grounded theory (but in line with the coding approach used by other socio-legal researchers – e.g. webley 2010), this type of coding will proceed both inductively and deductively: we will be able to identify the relationships that emerge from the data itself, and to test how concepts already identified in secondary literature and in the pilot studies (e.g. charity; community; play) relate in this data set. tentative theoretical models can be tested at this stage, within the case studies. finally, the open and axial codes that emerge within each case will be compared across cases, and each data set will be explored in the light of the others. coding processes are hereby comparatively refined, ensuring that the theoretical models that emerge from the entire project are robust within and across sites. section 2: feminist political economy and the ‘everyday’ edginess of voluntary risk-taking having outlined the general thrust of the research, i wish to delineate two more specific themes emerging within the bingo project since, we hope, these are relevant to the gendering labour law network. firstly, we want to use bingo to take forward debates about everyday voluntary risk-taking. rather than solely understanding risk – and the governance thereof – to be about precaution against catastrophic events, prudence, and profit-making through pre-emption, gambling is a route in to also discussing pleasure, fun, and entertainment. as historian of risk arwen mohun (borrowing from levi–strauss) argues about rollercoasters, chimneys, and lawn mowers, gambling is “good to think with” (2013, 6), because it draws our attention to processes of vernacular risk culture and regulation. in this regard it relates to research on the concept of ‘edgework’ within sociology, a term used to describe a cluster of activities that involve voluntary risk-taking and danger-seeking (lyng 2004).[footnoteref:7] sky-diving, white water rafting, skateboarding, and mountaineering have all been explored as various forms of ‘edgework’. [7: sometimes people who study ‘edgier’ forms of deviance object to gambling being placed in the same category of voluntary risk-taking as sky diving, because they characterize gamblers as accepting fate rather than aiming for self-mastery through skillful manipulation of risk. see reith (2004, 243) for an effective counter-argument.] ‘edgework’ is useful as a concept because it centres the dual, intertwined nature of risk regulation – as involving both the control of perceived deviance, and the production, commodification, and shaping of desires for transcendence, freedom, escape, self-mastery, and authenticity. having a genuine stake, or something at risk, in these activities is key to their appeal. although the majority of people interviewed in one large study of internet gambling saw it in terms of leisure, entertainment, and recreation, the fact that their money was at stake was also key. as one man put it, “playing for fun takes the fun out of it” (quoted in parke et al. 2012, 151). in this respect i am drawn to research that has tried to connect up various forms of voluntary risk-taking with political economy, regulatory norms and institutional orders (lyng 2004; mohun 2013; reith 2007), especially as these relate to the commonplace, the vernacular, or the everyday.[footnoteref:8] while some see edgework in terms of self-determination, control, resistance, and escape from the mundane, others have explored the synergies between the mundane and the edge, or between edgework practices and everyday institutional orders (e.g. langley 2007; lyng 2004). for example, jonathan simon has shown that voluntary risk-taking is increasingly what governing institutions expect of people (simon 2004, 206). skills to cope with radical normative under-determination, and knowledge of how to respond to risks without the shelter of comprehensive institutional risk-spreading systems, are increasingly prized.[footnoteref:9] the labour involved in edgework is of particular interest in this regard. while many have examined the skill of riding the ‘edge’ between life and death involved in extreme sports, others have examined the skills involved in managing the more mundane consumption of risk. for example sociologists holyfield, jonas, and zajicek have charted the micro-level practices of white water rafting guides as they labour to create illusions of risk while never actually endangering the customers on whose tips they rely (holyfield, jonas, zajicek 2004, 184; see also mohun 2013 on designers and operators of early amusement rides). [8: mainstream political economy scholars are also now looking to the ‘everyday’ as a key site (hobson and seabrooke 2007), drawing (sometimes without sufficient acknowledgement or engagement) on a long tradition of feminist work. see, inter alia, elias (2010); lebaron (2010); and weber (2010).] [9: in a brilliant essay on the popularity of alpinism among victorian barristers, simon also shows that those groups who are most drawn to performative spectacles of risk-taking can be those whose are actually best protected from the political economic risks they unleash on others. the alps were a fantasy space for lawyers to project, and experiment with, emerging principles of victorian capitalist risk governance while at home they enacted strict protections to guard their own profession against competition (simon 2004, 206)] in the bingo project, i seek to re-visit the edgework literature using a seemingly mundane, unglamorous site that appears to be very far away – experientially and analytically from sky diving, or even commercialized white water rafting. i do this out of a sense that the mundane and unglamorous are especially vital research sites for those of us interested in critical political economies of leisure and consumption (see especially peiss 1986). as edensor et al. argue in their collection on spaces of vernacular creativity (2010), there is a stark need for a range of scholars to intervene critically in conversations about creativity and political economy, especially when these coalesce into a ‘creative cities’ ideology that privileges the cool, urban young as gentrification instruments. cool is a class articulation, as well as being an articulation of gender, race, and age (edensor et al. 2010, 7), wherein specific forms of urban development are championed and parallel ‘cultural wastelands’ – both within otherwise cool cities and outside them – are produced (edensor et al. 2010, 1). there is an urgency, then, to exploring the suburbs, the ‘crap towns’ (edensor et al. 2010, 5-6), the everyday context of economic crisis (shevchenko 2009), the gnome collections (potts 2010), to better understand the vernacular and everyday landscapes of creativity. such landscapes are not spectacular, or extraordinary – in fact they are often explicitly self-effacing: “vernacular creativity foregrounds the un-hip, the un-cool, and possibly the downright square, and embraces those marginal and non-glamorous creative practices excluded from artsand culture-based regeneration” (edensor et al. 2010, 10). i am especially keen to explore what bingo can teach us about the unglamorous, unspectacular types of edgework and playful speculation in which older, working class women engage, and to hereby intervene critically in the exclusionary logics that attend much research and policy around culture and regeneration. however, the project is not an ethnographic one, and it seeks to make explicitly regulatory interventions. in edensor et al.’s framing, vernacular creativity allows a focus on the value of practices that do not produce commodifiable economic products, but that might instead produce community cohesion, neighbourhood identity, or conviviality (edensor et al. 2010, 11). i worry slightly that such a framing may prove insufficient for exploring the everyday institutional orders that co-constitute these practices – the norms of sharing winnings between tablemates, the council zoning rules or provincial laws on fundraising, or the “lowly legal mechanism of licensing” (valverde 2011, 297). rather, in keeping with feminist political economic analysis (rai and waylen 2008), i am interested in probing how community as a political-economic formulation is regulated, produced, and resisted in the bingo realm. indeed, precisely because bingo straddles boundaries between charity and business, and because it is so closely associated with non-profit activity, the game allows us to explore how regulators, businesses, charities, workers, and players value what is produced in this space of vernacular creativity, and how the regulatory framework is in turn informed by those attributions of value. section 3: unpaid work and the charity/state nexus the second set of feminist political economy conversations to which the bingo project seeks to contribute involve the promotion and regulation of unpaid work. as noted above, bingo is a paradigmatic example of how gambling can involve fundraising for good causes. notwithstanding the tendency of many popular accounts of gambling to fixate on spectacles of high-rolling roulette players in casinos, charitable gambling is, in fact, “the most widespread form of legalized gambling” (dolan and landers 2006, 6) in many countries, including the us and canada. more specifically, many jurisdictions that grant licenses for charitable bingo – including most canadian provinces and us states – require the game to be run by volunteers. this requirement makes bingo a key case study for those trying to better understand the legal mediation of the world of volunteer labour. hence the project asks what we learn about the governance and regulation of bingo volunteers – by charities and states – when we explore this concrete site of unpaid labour. formal volunteering is a subset of unpaid work, usually distinguished from other types on the grounds that it is done for altruistic reasons, for organizations (as opposed to informally, for family and friends).[footnoteref:10] charity law specialist debra morris defines volunteering as “the commitment of time and energy for the benefit of society or the community” (1999, 249 emphasis added). volunteering has been identified “a lost continent” of social life (saloman et al. 2000, quoted in mohan et al. 2006, 267), since so little is known about its patterns and determinants, its socio-legal regulation, or its meaning to participants.[footnoteref:11] of course attention to unpaid work is long-standing in a range of legal sub-fields, including labour law, welfare law, and charity law (morris 1999; mahood 2009; kelley 2005). moreover, unpaid work has long been of interest to feminist scholars exploring the gendered limits of mainstream political economy. unpaid work to sustain community life is included in most feminist definitions of social reproduction (bedford and rai 2010; bakker and gill 2003; alessandrini 2014), and there are many accounts of the gendered, classed, and racialized nature of this work (lind 2005; molyneux 2006; gilmore 2007; dolhinow 2010). we also know from decades of research on structural adjustment that women are often enlisted as ‘volunteers’ to sustain communities in the face of state withdrawal (bakker 1994; sparr 1994). [10: on the distinction between formal and informal volunteering see, inter alia, skinner and rosenberg (2006). ] [11: research on the economic contribution made by the non-profit sector often imputes economic value to volunteer labour time. however we know little about the socio-legal regulation of their labour. ] however when volunteers have appeared on the radar of mainstream legal study they have done so mostly in relation to debates about whether they can claim employee status (morris 1999). when they are determined to fall outside that status – sometimes, tautologically, because they are associated with an organization with a charitable or religious purpose – interest often wanes.[footnoteref:12] hence much debate on volunteers in canada concerns the fear that charities, businesses, or state agencies will inadvertently treat volunteers in such a way as they can claim employee status.[footnoteref:13] in addition, many charities are concerned about their liability for vicarious torts; in canada, volunteer screening is being promoted federally as a national response (volunteer canada/public safety canada 2012).[footnoteref:14] some charities are also fearful that human rights legislation imposes too high a level of protection for volunteers against alleged discrimination.[footnoteref:15] however there is a distinct need for research which centres volunteers themselves (rather than regulators and charities) as key stakeholders. [12: volunteers often fail the employee test because specific exemptions have been made for charitable organisations. even when they have not, courts are generally reluctant to probe deeply into labour relations in charities: as stewart and owens note: “in australia generally it has been difficult to perceive a strong policy approach to the interpretive task performed by courts [about whether an employment contract exists for unpaid workers] (absent perhaps a reluctance to find employment relations in relation to charitable, religious, or sporting organisations)” (stewart and owens 2013, xvi, emphasis added).] [13: some volunteers (especially fire fighters) have been considered employees for the purposes of provincial employment legislation and insurance and worker’s compensation benefits (volunteer canada/public safety canada 2012). a variety of groups offer legal advice to charities and businesses – especially businesses in the tourism sector – to reduce the ‘risk’ that volunteers inadvertently become employees. see go2 tourism hr society (2013). see morris (1999) for similar fears in the uk by the national council for voluntary organisations.] [14: the implications of this screening for the expanded reach of criminal justice are profound: see hannah-moffat, maurutto and quirouette (2013).] [15: in 2011 i attended a day-long seminar for non-profit organizations on canadian charity law which returned several times to this issue. charity lawyers explained how christian organizations could draft volunteer duty specifications such that they could legally exclude gays and lesbians from volunteering. ] the urgency of such research has grown in recent years. political – and sometimes legal – battles over (in)voluntary work have become key features of welfare state restructuring in several countries,[footnoteref:16] as a result of pressures placed on people to perform unpaid labour in exchange for benefits, the expanding use of internships for young people seeking training and access to paid work (stewart and owens 2013), and the key role played by volunteers in sustaining charitable organizations as they are contracted to pick up the slack of state cuts.[footnoteref:17] in particular, many scholars and activists – feminist and otherwise – associate the revival of voluntarism with contemporary neoliberalism wherein the poor are responsibilized through charity – including through providing unpaid labour to charities – rather than being entitled to benefits as welfare state citizens (brooks 2001; gilmore 2007; raddon 2008). the complex relationship between charities, businesses, and state actors – always of interest to critical charity analysts[footnoteref:18] and sometimes of interest to courts[footnoteref:19] – has hereby become a core concern when analyzing voluntarism. [16: on the u.k. see r (on the application of reilly and another) v secretary of state for work and pensions [2013] uksc 68. in canada see gosselin v. québec (attorney general) 2002 scc 84, [2002] 4 scr 429, where the majority dismissed a class action suit brought by a welfare recipient against a 1984 québec social assistance scheme that set the base level of welfare payments for those under 30 at one third of the rate given to those over 30, and required participation in education or training programmes to boost the benefits level. several other provinces, including alberta and ontario, also enacted workfare schemes as part of welfare reforms: e.g. the ontario works act (1997, s.o. 1997, c.25). ] [17: for example, during the uk’s 2012 jubilee holiday a charity with a contract for job training under the government’s increasingly punitive welfare regime used unpaid workers to help steward the celebrations. the volunteers reportedly slept under thames bridges until their labour – for private security firm close protection uk – was required (bbc 2012). ] [18: e.g. see harring (1976-7) on the role of buffalo’s charities organization society in the violent police repression of local labour movements in the late 1800s, in the interests of business owners. see maurutto (2003) on how philanthropic institutions have modelled themselves on capitalist enterprises. see rekart (1993) on the intertwining of state and charity in b.c., and wolch (1990) on voluntary organizations as a ‘shadow state’.] [19: e.g. alamo foundation v. secretary of labor 471 u.s. 290 (1985), where the us supreme court found that workers in the businesses of a non-profit religious foundation were employees for the purposes of the fair labor standards act, and were hence covered by minimum wage and overtime provisions. the workers were mainly indigent people offered ‘rehabilitation’ through the foundation. they worked for little or no pay and were punished for poor job performance or absence, including via withholding of food. ] the bingo project is broadly located within this critical debate about charities and neoliberal trends in social policy. however it takes the lead from those authors who have urged attention to the experiences of volunteers in specific localities (milligan and conradson 2006). it hereby seeks to complement work on the production of voluntary sector spaces;[footnoteref:20] the diverse meanings that volunteering holds for those who engage in it, and the social relations – including the class and gender relations – made possible, and challenged, by the mobilization of unpaid labour for altruistic purposes. while some forms of voluntarism involve wealthy people engaging in a form of poverty tourism, temporarily trying out new roles such as food server in a homeless shelter, or amateur shopkeeper (prochaska 1977), as linda mahood (2009) notes, volunteering can also provide a source of adventure and rebellion, and opportunities to travel, form intimate communities with likeminded people, and express political opinions. women’s engagement in philanthropy provided some of them with an activist outlet and a route to escape domestic life. moreover, research on low-income volunteers suggests that the meanings of unpaid work may vary considerably from the standard middle class narrative of volunteering to build a c.v., or discover oneself through working with the poor. kenneth maes’s interviews with unpaid carers for people living with hiv/aids in addis ababa found that motivations ranged from reducing suffering and pleasing god, to desires for direct remuneration (such as food), new knowledge, patron-client relationships, and paid job opportunities in a context of widespread unemployment and poverty (maes 2012, 55). the ngos that organize these volunteers try – never entirely successfully – to shape these motivations, a reality that “recasts economically-insecure volunteers’ consent to donate their labour as a process of negotiation with their organizers” (maes 2012, 54). [20: e.g. valins (2006) on the role played by jewish care home volunteers in creating a sense of ‘home’ for residents.] liz parsons’ research on charity shop volunteers offers another useful analysis of how the meaning of unpaid labour can be impacted by shifts in regulatory approach, themselves related to political economic trends. she found that uk charity shops created spaces for sociality and belonging in the local community, especially for older women volunteers (parsons 2006, 236). those volunteers saw the main beneficiaries of their labour as the shoppers (local poor people who were in need of a bargain), rather than those abroad that the charity was aiding through its global humanitarian and development activities. this localized ethos of helping people with whom there was a perceived common bond was harmed as charities moved to professionalize the shops, making them more traditionally work-inflected sites with paid managers at head office level, increasing standardization of displays, and, in some cases, a move to uniforms and/or name badges (parsons 2006, 231). the bingo project aims to continue this thread of research into how shifts in regulatory approach, themselves related to political economic trends, affect volunteer motivations and experiences. in particular, we want to understand better how the volunteers whose labour sustains charitable bingo games are regulated and incentivized, by both charity and state actors (whether at local, municipal, provincial, national, or transnational level). we hereby seek to explore the nexus of charity and state power as evident in the realm of charitable gaming, in part to learn more about how volunteer labour is mobilized. in particular, keeping in mind the lessons from literature on the diverse meanings that volunteering holds for those who engage in it and on the constantly evolving – but likely never entirely successful – efforts by charities and governments to delimit and control those meanings, we hope that bingo can contribute to the broader imperative of exploring resistant narratives of voluntary work – especially by working class women. conclusion: research reflexivity and our everyday debt the bingo project hopes to offer some insights to feminists interested in the everyday institutional landscape of voluntary risk-taking, and volunteer labour. notwithstanding the fact that the findings are several years away, we are orienting the research questions to address core concerns within feminist scholarship, including about gender and risk, unpaid work, and regulation of community. however, the project is also informed by a commitment to feminist research methods and epistemologies, including a valuing of and attentiveness to the production and regulation of unglamorous, mundane spaces, and a critical curiosity about the structuring of production and social reproduction in various places. in this way we hope to make some contributions to the gender scholarship that has, in turn, laid the 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intimate, embodied and sexualized labour is regulated within the law in the united kingdom by considering how the relationships involved are understood within law and highlighting the limitations of the existing regulatory norms and frameworks. it takes two examples wherein the human body is used as the ‘material of production’. the first example involves the commercial provision of sex, the second caring for the vulnerable, particularly the elderly, undertaken predominantly within the home. the labour processes under discussion are only marginally recognized by labour law. as a result, those involved are unable to make use of its normative frame of reference, which is in part based upon addressing the risks associated with unequal bargaining power. at present commercial sex is heavily associated with the criminalized discourse of ‘prostitution’ and trafficking. domiciliary-based caring involves a range of work-related arrangements undertaken by persons defined as domestic workers, social care workers/personal assistants and, very importantly, unpaid carers. we find that the legal construction of unpaid carers is located primarily within social welfare law whereas other domiciliary workers are addressed through the potential violation of their human rights. this chapter considers the wider implications of these different legal locations, in particular the forms of legal protection available to those involved, and explores the ways in which concepts of risk, vulnerability and mutuality affect body work relationships as they emerge within law. a short history of labour law: employees, workers and ‘employment’ modern labour law emerged from a range of relationships associated with work in the nineteenth century (deakin, 2007; deakin and wilkinson, 62 ann stewart 2005). at its heart is the common law contract of employment. two autonomous parties, the employer and the employee, enter into a free and voluntary agreement whereby the employer owes a duty to pay for work undertaken whereas the employee owes a duty to be ready, willing to work, and to obey the lawful orders of the employer. although constructed as a mutual agreement, pateman (1988: 118) argues that the contract in general is a specifically modern means of creating relationships of subordination. clearly, the employment contract reflects inequality of bargaining power in the market place, placing the worker in a position of subordination. this contract of service involves not only elements of mutuality and dependence, but also of continuity. nonetheless, it replaced archaic legal distinctions between blue collar and white collar workers (deakin, 2007) and by the 1950s provided the basis for the ‘standard employment relationship’ involving ‘an ensemble of institutions, along with the vertically integrated enterprise, the industrial union, the male-breadwinner family, and the state as employer and provider of services, which served as the basis of an historical compromise between workers, employers, and governments’ (fudge, 2007: 2). this fordist employment relationship has three objectives: ‘(1) to protect employees against economic and social risks, (2) to reduce social inequality, and (3) to increase economic efficiency’. it provided ‘stable, socially protected, dependent, full time jobs’ for male breadwinners (fudge, 2007: 2). in the uk, conditions were regulated primarily through a system of ‘collective laissez faire’ backed by strictly limited legal interventions that extended protections for employees (kahn-freund, 1972). while labour law provides the dominant frame of reference for the regulation of relationships for those involved in paid work, it is generally recognized to be struggling conceptually to cope with the changes that have occurred in the global economy since the 1970s. there are a wide range of problems. one such is territoriality. state laws based upon local traditions of industrial relations are not best placed to deal with the way in which multinational enterprises organize their relations of production on a global scale or with flows of migrant workers. here, however, we are concerned with two other challenges. the first comes from feminist labour lawyers who question the way in which the boundaries between production and social reproduction are set and the consequential gendered impact on access to the labour market. since the 1970s, they have been pointing out that this employment model largely ignores the ways in which women engage with the market and offers little protection to women who work in ‘non-standard’ ways. as more women joined the labour force, women’s organizations in the uk campaigned for legal rights to ensure women’s equality at work, resulting in the legislation which tackled access to and segregation within the labour market legal constructions of body work 63 and equality of pay. a framework developed to cover pregnancy and maternity discrimination and benefits and prohibitions on sexual harassment. some of these measures have had their origins within the european legal framework. there is an uneasy conceptual relationship between measures introduced to tackle discrimination and those incorporated within employment protection, leading to some highly complex legal issues relating to the precise scope of protection, which continues unabated (freedland and kountouris, 2012; mccrudden, 2012). while a legal framework to provide women with substantive equality was developing in the uk, the labour market was restructuring. by the 1980s, new forms of flexibility were required to tackle decreasing productivity and to reposition the economy within the global market. public services were privatized. generally, employment relations were commercialized through the introduction of precarious forms of working, which attracted little or none of the protections offered to those categorized as employees under the fordist model (conaghan et al., 2002; fredman, 2006). the male family wage disintegrated, requiring women to work to maintain household living standards. the second problem, therefore, for labour law results from its basis within a fordist model of commodity production in economies now organized around the provision of services (albin, 2010). the commercialization of employment relations associated with the rise of a service economy, through self-employment, subcontracting and franchising, fit uneasily, if at all, into a conceptual framework based upon the contract of employment, a bilateral contract of service between an employer and an employee. a service economy draws together production and consumption in such ways that the processes of consumption affect those of production. it is a world of tripartite relationships between employers, workers and customers/clients organized through contracts for services. what can seem like esoteric debates, relating to the distinctions between a contract of service and a contract for services, matter greatly to those involved. organized labour has fought to limit the exploitation of employees, those with contracts of employment, backed by state legislative protections. entrepreneurs, freely selling services in a market place, are located within a different understanding of power relationships and legal frameworks relating to contract, commercial and consumer law. clear, if fine, conceptual distinctions between employees, workers and those trading services, disappear in the messy world of working relationships but still result in many workers having far fewer protections. women’s work is concentrated in the service sector, which is associated with the sort of flexible working that is underpinned by commercialized relationships wherein services are freely traded. however, they tend not to 64 ann stewart be in the vanguard – the free floating knowledge workers, the independent risk takers who, it is argued, can subvert traditional relations of power through the skilful deployment of their human capital (albin, 2010). instead, the majority work in traditional service sectors – still closely associated with socially reproductive activities which can at the extremes hark back to pre-modern forms of relationships and where work is low skilled, commands poor wages, is provided informally and is associated with very different relations of power and risk allocation. since the 1980s, there have been attempts to recapture territory for labour law. in the 1990s, the labour government utilized the language adopted within european law to provide employment-related protections based upon the concept of a worker rather than an employee (ashiagbor, 2006). this category extended the scope of measures such as the minimum wage and working time limits to those who did not qualify as employees because they were not operating under a contract of employment or because they lacked the continuity necessary to qualify for protective measures. the european framework more generally has had significant effects through the extension of its reach in relation to anti-discrimination measures. additionally, the discourse of human rights with its origins in international and regional rights frameworks such as the european convention on human rights has become more significant. labour law norms as previously discussed recognize inequalities in power and the need to protect workers from economic and social risks. the normative base for anti-discrimination and human rights roots inequality within status categories (sex and disability, for example). while human rights discourse increasingly informs labour law there is an uneasy relationship. there is a widely held view among labour lawyers that there is a need for the construction of a new employment normative base, which does more than resolve the complexities that have developed around definitions of employees, workers and the somewhat different employment definition used in relation to some antidiscrimination measures (albin, 2010; davis, 2007; freedland, 2006; fudge, 2006). the aim would be to breathe new life into its distinctive contribution, ‘which is to strengthen the bonds of social solidarity against the fragmentation of the market’ (fudge, 2007: 18) and to reassert the progressive norms associated with this form of regulation (freedland, 2003, 2006). body work in a service world: commercial sex services, exploitative relationships and dangerous consumers the weakening of the ideological assumption that sexual relationships are more appropriately undertaken outside the market place in a consumer-based legal constructions of body work 65 society has led to the ‘normalization’ of market satisfaction of sexual desire and the proliferation of services (hardy et al., 2010). market provision is however normatively contested, and this is reflected in the legal construction of prostitution and trafficking (o’connell davidson and anderson, 2006). the focus here is on the provision of intimate sexual services, whether on or off street, fully recognizing that there can be a range of contexts in which these services take place reflecting different power relationships. we can frame this labour process within labour law terms of reference. if the woman works for an employer for wages in an establishment, we would look for a contract of employment upon which to base employment protection rights. she may pay a fee, or other form of consideration, to use premises; she may provide her services via an agency and use her own premises. we would need to know how she works, part-time for how many hours, on a casual basis and so on to assess her employment status and the extent to which she is entitled to employment rights or discrimination protection. is she working under a contract of service or a contract for services? is she employed or self-employed? she is providing an intimate service in which the customer plays a key role. the customer may share employing functions, but more generally it is clear that customers affect her employment conditions and her position at work. the demands of customers are likely to influence both ‘hiring and firing’. meeting the demands and expectations of the ‘fantasizing consumer’ for particular body images and identities is paramount in this consumerbased industry. customers need to be ‘enchanted’ rather than concern themselves with the ‘toiling worker’ (mcdowell et al., 2007). therefore, within this discourse we could illustrate the challenges presented by this service work and reflect on similarities to the way in which customers influence labour relations within the wider hospitality industry. are tips to be seen as contributing towards the minimum wage? to what extent must employers take responsibility for sexual or other forms of harassment by ‘third parties’ (customers)? can employers impose dress (broadly defined) codes? we would also need to consider the impact of personal relationships within consumer service provision. many such services are provided through informal, personal relationships wherein it is difficult to establish a legal basis for worker protection. working in informal settings, close to employers in a domestic or small establishment, may raise particular issues such as ‘on call’ time. this issue arises often when a presence is needed at night, for instance in a hospital, or for residential or domiciliarybased care. is the worker entitled to be paid for such time? realizing any protection is also very difficult. workers tend to ‘exit’ rather than use ‘voice’ processes (albin, 2010). such settings are not conducive to unionization, which makes challenging decisions in appropriate fora even more unlikely. 66 ann stewart these issues can be used to support the need to reconfigure labour law to ensure that it functions appropriately in a service-based consumer economy, not only to support economic objectives but also to recognize power relationships and to offer protections to workers. this, of course, is not the way in which commercial sex services are discussed. instead, they are placed beyond the margins of labour law. we see the aims of protecting employees and ensuring economic efficiency transposed into the criminal law and to a lesser extent, human rights discourse. these discourses construct the relationships in terms of dominance. the economic objective is to suppress, not facilitate the market while customers are recognized as contributing substantially to power relationships. in the trafficked body, we see recognition of the way in which particular bodies are constructed within law through their work. although ‘prostitution’ in practice can involve a contract for services, it is not legally recognized for reasons of public policy. no employment relationship is recognized in the criminal provisions which regulates relationships1. the employer is recast as someone causing or inciting for gain or controlling activities for gain. providing a place of work is criminalized as the provision of a brothel. the person seeking to sell her services is impeded by crimes against soliciting and advertising. the international aspects of trading are tackled through anti-trafficking measures that criminalize the processes involved. the normative justification for this criminalization has shifted over time, from protecting against immorality, then prohibiting public nuisance, to, in recent times, an explicit attempt to disrupt and suppress the market because of the unacceptable levels of exploitation involved, which in the case of trafficking are seen as clear violations of fundamental human rights to liberty. there has been a policy shift from constructing the service provider as a dangerous woman to seeing her as vulnerable, as a victim of exploitation who needs protection of her right not be bodily violated and exploited. we have transposed the danger on to the customer, along with those who are cast in the ‘employer’ role such as traffickers. the key provision which illustrates many of these issues is section 53a of sexual offences act 2003. paying for sexual services of a prostitute subjected to force etc (1) a person (a) commits an offence if (a) a makes or promises payment for the sexual services of a prostitute (b), (b) a third person (c) has engaged in exploitative conduct of a kind likely to induce or encourage b to provide the sexual services for which a has made or promised payment, and legal constructions of body work 67 (c) c engaged in that conduct for or in the expectation of gain for c or another person (apart from a or b). (2) the following are irrelevant (a) . . . . (b) whether a is, or ought to be, aware that c has engaged in exploitative conduct. (3) c engages in exploitative conduct if (a) c uses force, threats (whether or not relating to violence) or any other form of coercion, or (b) c practices any form of deception. we see here that tripartite relationships are recognized. the consumer and his power is placed centre stage. in an attempt to suppress demand, to reassert not just recognition of the toiling worker but the exploited victim, the fantasizing consumer is denied the legitimacy of agency. his desires are recast as an obligation to recognize the particular identity of the service provider – not stunning albanian beauty, but raped and abused victim, made vulnerable by her economic location within the global economy. the potential abuse of the worker by the client and the assumed abuse by the ‘employer’ figure are emphasized. the interdependence of the parties is clearly recognized but wholly outside labour law. body work in a service world: caring the exclusion from labour or commercial contract law in the previous example results from an explicit policy decision not to recognize the relationships. the present one concerns difficulties with fitting ‘legitimate’ relationships within the framework. forms of ‘care’, particularly when provided in informal, domestic, personalized contexts within a network of relationships, struggle to be recognized as a work relationship or worthy of protection. much paid care work, particularly for the elderly, is associated with irregular hours, multiple job holding, agency provision and bogus selfemployment – factors which mitigate against protection within labour law. unpaid caring by ‘carers’ is beyond such protection. labour law is not the only legal domain which organizes the relationships involved and addresses issues of risk, vulnerability and exploitation. the work relationship involving family members is constituted within social welfare law. it grants the status of ‘carer’ and some rights, derived through this work relationship, although these do not provide labour law forms of protection. some paid relationships, marginalized by labour law, are now being recognized in terms of rights. the power relationship can 68 ann stewart also attract a dominance discourse within criminal law similar to that of trafficking. exploitative relationships and dangerous employers for the discourse of labour law, the margin is constituted through debates over domestic workers, which in this context include those providing paid care within informal familial settings. feminist labour lawyers, joined now by human rights activists, have highlighted the position of such workers, who occupy a no woman’s land between legal regimes organized around concepts of production and those organized in relation to social reproductive activities. domestic work is hard to regulate but ‘prone to precariousness for social (gender, race, migration and social class), psychological (intimacy and stigma) and also economic reasons’ (albin and mantouvalu, 2012: 69). they point to the current uk position whereby domestic workers are often excluded from the protections provided to ‘workers’ such as over regulation of working time, health and safety legislation, partially (if provided with accommodation) or wholly (if treated as family members domestic workers) from minimum wage requirements. such workers cannot access anti-discrimination and equality provisions (albin and mantouvalu, 2012: 70–71). legal migrant domestic workers are even less likely be included in any protective labour law measures. illegal status denies all employment protections. the plight of migrant domestic workers has surfaced within international labour and human discourse in recent times because of the sheer size of this group worldwide (stewart, 2011). a discourse based upon violations of human rights, similar to that of women trafficked for the purposes of sexual exploitation, has emerged within various settings. one of which has made use of an underused article, article 4, of the european convention on human rights that prohibits slavery, servitude, forced and compulsory labour. it was invoked to expose the inadequacies within the french criminal legislation to deal with the ‘servitude, forced and compulsory labour’ experienced by the applicant. this ruling against the french state recognized ‘modern slavery’ and prompted the uk to adopt new legislation (section 71 of the coroners and justice act 2009; mantouvalou, 2006, 2010). slavery, servitude and forced or compulsory labour (1) a person (d) commits an offence if (a) d holds another person in slavery or servitude and the circumstances are such that d knows or ought to know that the person is so held, or (b) d requires another person to perform forced or compulsory labour and the circumstances are such that d knows or ought to know that the person is being required to perform such labour legal constructions of body work 69 the position of domestic workers has also been recognized by the international labour organisation. the convention on the rights of domestic workers 2011 is seen as a ‘landmark moment for the international labour law regime’ because it addresses a specific sector of activity now clearly identified as work and incorporates a human rights approach into international labour law discourse (albin and mantouvalou, 2012: 67). its provisions cover both ‘civil rights, like access to justice and privacy, and social and labour rights, like working time and minimum wage’ (albin and mantouvalou, 2012: 73). the uk government abstained in the voting on its adoption. albin and mantouvalou (2012: 77) quote the views of the uk representative: ‘we do not consider it appropriate, or practical, to extend criminal health and safety legislation, including inspections, to cover private households employing domestic workers. it would be difficult, for instance, to hold elderly individuals, who employ carers, to the same standards as large companies’. this quotation is illuminating: first because employed ‘carers’ are identified as falling within this category of worker and second because elderly clients are, by implication, seen to be particular types of employer. the suggestion here would seem to be that such a caring relationship involves competing vulnerabilities and uncertain distributions of power between the employer/client and the worker. to understand more, we need to consider the nature of caring relationships within this ‘non-standard’ or marginal work context and the way in which the discourse from another area of law, associated with the fixing of social responsibility for care, constructs such relationships and addresses the associated risks. exploitative relationships and ‘empowered’ clients/consumers social welfare law delineates the responsibilities of the state for the welfare of vulnerable adults. the focus of legal attention here is the person in need of care who is situated within a network of relationships (ungerson, 2000). this individual is being repositioned within a social market as an independent consumer of care services, as someone who chooses what they want rather than being the recipient of state-defined provision. as a consumer/ client, they gain power, in theory, but given the nature of state responsibility for such care only the most intensely vulnerable are presently eligible for publicly funded services. in relation to whom does such a vulnerable consumer gain power? their unpaid relatives, who within social welfare law are defined as ‘carers’? the paid workers from whom they purchase services directly or indirectly? 70 ann stewart evolution of social/community care law and policy social responsibility for the care of the vulnerable, including the elderly, involves a range of actors, the state, market, voluntary sector and families, the relationship between which has changed substantially since its origins in the poor law 1834 (lyon and glucksmann, 2008: 111). the post-war welfare state excluded the provision of social care, viewed as residual, from the national health service. local authorities were sanctioned under the national assistance act of 1948 to provide and to charge for specific services to those with identified forms of need. such public assistance as was available to the elderly in general was institutionalized through provision of ‘old people’s homes’, although those identified as having a particular need could be provided with a ‘home help’ who was directly employed by the local authority. the restructuring of economic relations, which took place in the 1980s, resulted in a changed relationship between the state and the market. this involved the creation of a mixed market in welfare through splitting purchase and provision functions through compulsory competitive tendering for services. the result was privatization of services. by the end of the decade, social services departments had been recast as commissioners of state-financed, privately delivered services. private residential homes developed rapidly, many of which were small, often family run businesses, dependent on publicly funded residents (brown, 2010; means et al., 2008). more generally, there was a move in a service-based economy towards greater client choice through ‘personalization’ of services. residential provision became not only prohibitively expensive for the state, but also seen as inappropriate. an increasingly effective disability rights movement lobbied for replacement of the dependency model to one based upon user empowerment and rights. local authorities began to commission community care, particularly domiciliary-based services, which stimulated a market in agencies to provide these. this mixed market is now constituted by a large number of small businesses and voluntary organizations providing care homes, domiciliary services, and a small number of large providers. the sector remains under-capitalized, with small profit margins and high risk, deeply dependent on public funds (stewart, 2012). employment relations within the social service provision have been reconfigured. state employed social workers operate as care brokers, buying packages of care (ungerson, 2000). social care workers (including personal assistants) undertaking body work are now located primarily within the private sector (70 per cent). this workforce is low skilled, low paid, predominately female (90 per cent), two-thirds of whom provide care for the elderly (lyon and glucksmann, 2008: 112). the commercialization of relations legal constructions of body work 71 has resulted in the predominance of ‘non-standard’ and precarious work arrangements. as we have seen, such workers attract few employment protection rights, enabling the economic risks associated with restructuring to be passed on to them. there is another group of workers, invisible to labour law, who undertake ‘social’ care. family law in the uk places no legal responsibility on adult children to support parents or other relatives. nonetheless, the 1948 welfare system was predicated upon the assumption that such informal care would be provided within the dominant societal model of the male breadwinner/female homemaker model. although this model has been superseded, the assumptions relating to the provision of informal care have not. approximately six million people, now termed ‘carers’, undertake such work in the uk. it is estimated that if valued their yearly cost would be roughly equivalent to that of the nhs; without it the public systems would collapse (buckner and yeandle, 2007). the manifest tensions between paid work and care responsibilities coupled with the financial and social consequences of demographic changes, which see a significant rise in the proportion of very elderly people in the next decades, has spawned anxious debates over a crisis in care (stewart, 2012). the present legal and financial systems are generally recognized by policy makers as wholly unfit for purpose (stewart, 2012). the law commission in 2011 made recommendations for a comprehensive new legal framework that forms the basis for forthcoming legislation. it places the individual client at the normative core of its proposals. while local authorities retain the responsibility for assessing individual needs within a framework which sets the eligibility criteria for the provision of services, the overall objective is to enable clients (or advocates on their behalf) to choose the services they want to ensure their well-being. there will be further development of the direct payments/individual budgets framework that enables the individual client to use public funds to buy services, leading to further commercialization in service provision. the dilnot commission, which also reported in 2011, tackled the highly contentious area of how to fund social care. responsibility for funding a significant, but defined proportion of life-time caring costs is placed firmly on the individual. social welfare law also recognizes that there is a relationship between this newly constituted client/customer and unpaid familial carers. we have seen the emergence of a new legal identity, the carer who is defined in legislation through this relationship. however, they are now attracting separated rights that recognize that this form of work affects them as quasi workers. carers are entitled to be assessed for services based upon their separate needs such as for time off (to purchase respite care) and as individuals experiencing exclusion from full citizenship primarily derived through their inability 72 ann stewart to undertake paid work or to participate in social life. many carers, both working age and older, are impoverished because they cannot undertake any or enough paid work and/or because they are reliant on inadequate state welfare payments which are primarily derived through their relationship with the care recipient (yeadle et al., 2007a, b, and c). because of their socially reproductive location, carers lack the indices for legal recognition of their body work as employment for the reasons discussed earlier. if a carer has a separate paid occupation that constitutes them as an employee they will attract similar rights to those offered to parents to ‘balance’ work and family (employment relations act 1996). as workers who also care, they may also be able to rely on the anti-discrimination measures contained within the equality act 2010, which recognizes discrimination by association with someone with a protected characteristic (in this case disability; stewart, hoskins, and nicolai, 2011). recognizing power relationships in body work the elderly care recipient as customer/client in an era of consumerism is being provided with services through a range of legally constructed relationships. they may be provided with state funds to purchase (in theory) the care services they would like. the care recipient may employ a social carer or domestic worker. if supplied through an agency, there will be a contract for services with the agency but no direct employment relationship with the worker. if employed directly, there may be a contract of employment or the worker may be self-employed. a care recipient cannot use state-provided funds (direct payments) to pay relatives who live with them. they may be able to employ other family members in which case these family members may become their employees. unpaid carers although attracting some citizen-based rights are not protected through an employment relationship despite often being the linchpin to the web of relationships necessary to meet the customer/client needs. who needs protection here and from what? the empowered client may be very frail and vulnerable, wholly dependent on the abilities of an agency to deliver agreed, but often meagre, services and the worker/employee to provide appropriate care. an agency worker is often under immense pressure to carry out the agreed service. they may work in difficult physical and social environments that require them to meet consumer desired, but agency prescribed, demands. they may face ‘third party’ harassment. those working within bilateral arrangements, including migrant domestic workers, face similar consumer expectations without the protections potentially offered through their relationship with an agency. determining and limiting working hours can be difficult. legal constructions of body work 73 family carers are under no formal obligation to provide care, but in practice they can work very long hours, sometimes with continuous ‘on call’ time. more than 21 per cent of carers provide over fifty hours or more care per week (lyon and glucksmann, 2008: 111). they can experience harassment. at the same time, there is a rising expectation of what is involved in decent care, encouraging carers as well as care workers to acquire care skills (dodds, 2007). there is also growing anxiety over abuse of the elderly and vulnerable. the legal language used to address this issue varies but it is increasingly framed as a violation of human rights. as such, it places responsibilities upon the state to ensure that such abuses do not take place. it is however seen as perpetrated by both care workers and carers. those within the sphere of labour law and, therefore, within the public realm are affected by the framework for the public regulation of care standards. care workers are constructed as potentially dangerous workers requiring screening to alert employers/clients to this danger. dangerous (private) carers are viewed differently (galpin, 2010; herring, 2009). their abuse is absorbed into two possible policy frameworks, one analogous to child abuse, involving the language of safeguarding, the other seeing elder abuse as a continuation of domestic violence. conclusion these two examples consider body work on the margins of recognition within labour law. in both instances the consumer/client is increasingly incorporated into the work–like relationships. in both cases, we see the exploitation and abuse which result from inequalities of power in working relationships being tackled through ‘non-traditional’ legal frameworks. both examples in different ways engage other areas of law to tackle issues of vulnerability, exploitation and abuse using different languages. the first locates the activity outside the realms of labour law, thereby denying its protection to those involved as workers. however, the form of regulation used, a combination of criminal and human rights discourses involving two different forms of state power, recognizes the impact of a global consumer/service economy on power relations associated with work. the law is being used not to facilitate economic relations while protecting workers against market risk, but rather it is being used to disrupt the market by criminalizing the client. the vulnerability of the worker constituted as a prostitute/trafficked person is protected through client-based interventions. the caring example involves relationships on the margins of labour law. many categories of workers in the informal context of home find themselves outside the protection of labour law. those who employ ‘modern 74 ann stewart slaves’ attract criminal penalties. at the same time, the international labour discourse is seeking to provide domestic workers with human and labour rights. social welfare law is providing unpaid carers, who are wholly outside the discourse of labour law, with some form of rights that nevertheless recognize the impact of their work on their lives, including the risks to their health and well-being. these rights do not offer labour law type protections. yet developments within the social market in care are reconstituting caring through love (and obligation). the reconstruction of the care recipient as a consumer/client who assembles care services limits recognition of the complex power relationships involved in these intense body work contexts, which characterize their relations with both unpaid carers and paid workers. labour law as presently constituted cannot tackle relationships constituted on the borders of production and social reproduction, and also struggles to recognize the influence of consumer/clients on work relationships. resort to criminal sanctions and to the individualistic language of human rights to protect vulnerability in working relationships is not necessarily a positive development. the first creates a particular form of worker vulnerability while invoking direct state power, whereas the second denies the relational nature of power relationships within work contexts and reconstructs these as conflicting rights. the solidarity that underlies labour law protections is lost. we need to find a way of reconstructing labour law in a way which retains its understanding of work based relationships and its recognition of power differentials. it will need to encompass the range of relationships that now constitute work in a consumer society and recognize the role and influence of consumers (albin, 2010). it is clear from the two examples discussed here that body work offers particular challenges to such a reconstruction. note 1 see crown prosecution service guidance for more details: http://www.cps .gov.uk/legal/p_to_r/prostitution_and_exploitation_of_prostitution/#a14. albin, e. 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(2007a). diversity in caring: towards equality for carers. employment and service report series, no. 3, university of leeds. available at http://www.sociology.leeds.ac.uk/ circle/publications/ces-reports.php. ——— (2007b). managing caring and employment. employment and service report series, no. 2, university of leeds. available at http://www.sociology.leeds.ac.uk/circle/publications/ces-reports.php. ——— (2007c). stages and transitions in the experience of caring. employment and service report series, no. 1, university of leeds. available at http:// www.sociology.leeds.ac.uk/circle/publications/ces-reports.php. davina cooper davina cooper a very binary drama _____________________________________________________________________________________ feminists@law vol 9, no 1 (2019) _____________________________________________________________________________________ a very binary drama: the conceptual struggle for gender’s future davina cooper[footnoteref:1]* [1: * research professor in law, dickson poon school of law, kings college london, uk. email davina.cooper@kcl.ac.uk. this article is based on research conducted as part of the esrc funded project, “the future of legal gender”, award number es/p008968/1. i am very grateful to robyn emerton, clare hemmings, didi herman, flora renz, mariana valverde and the two anonymous readers for their helpful suggestions. this article has also benefited from comments made during its discussion at edinburgh, bristol and sussex.] abstract this article explores how both the present and change are imagined and enacted in relation to gender’s conceptual future. its jumping off point is the current british struggle over definitions of gender and sex, and how law and public policy should respond. two contrasting conceptions have become particularly dominant within wider public discourse: gender as sex-based domination; and gender as identity diversity. the article explores the conceptual lines of friction and the part institutional arenas, particularly law reform debates, have played in shaping the dispute. in its second half, the article locates these conceptual lines in different conceptual tasks. prefiguring, destabilising, and critiquing gender are all oriented to forging a different conceptual future for gender, but they also seem to rely on different conceptions of what gender means and involves. arguing that concepts should be approached as invariably plural, rather than as subject to a single right definition, this article asks whether different conceptions of gender can interrelate in less antagonistic, more fruitful ways including in the development of statutory law. this article draws on utopian thinking to explore the challenge of gender’s conceptual future. having surveyed utopian literature on gender over the first decade of this century, i am indeed struck by the absence of really new visions. but i am also struck by the continuing desire for change; the continuing desire to desist from old patterns of thought and behaviour. (sargisson 2012: 78) if our goal is to further feminist and queer political aims, we would do well to have both the strategies of gender proliferation and feminist redefinition and revaluation of womanhood operating at the same time. (hale, 1996: 96) introduction utopian thinking today foregrounds the imaginary and material development of new worlds by invoking new desires, new forms of personhood and subjectivity, new relations, and new institutions (e.g., levitas 2013). this article explores these themes in relation to gender’s conceptual future, focusing on the struggles currently taking place in britain to pin down what gender is, what it means, and what it could come to be. in doing so, it takes up a conceptual method anchored in the oscillating relationship between imagining and actualisation (cooper 2014). in other words, approaching gender as a concept is not just about how gender is imagined or thought about; it is also about how gender is expressed and manifested; and even more about the ongoing movement between the two dimensions, as each informs, shapes, cuts, guides and gets folded into the other. in recent years, the concept of gender has been radically shaken. while many publics in (neo) liberal jurisdictions continue to regard gender in conventional ways, gender’s taken-for-granted status as the proper social life of natural binary sex has been unsettled. various perspectives have emerged with an alternative account of gender – of what it is and what it does. here, different politics (trans, queer, anarchist, postcolonial, socialist, radical, lesbian, etc) fuse with accounts of gender as, variously, a structure, system, performance, practice, language, labour relation and techno-political assemblage. but in among this rich variety of critical and progressive conceptions of gender, two formulations have become particularly prominent in contemporary britain, emerging in the course of law reform and public policy debates over gender transitioning and self-determination. one challenges gender’s status as proper and natural, approaching it instead as a binary class relation of domination anchored in reproductive sex; a second, challenges gender as binary and biologically anchored, treating gender instead as a felt dimension and expression of the self that may -or may not -align with biological sex,[footnoteref:2] or even map onto intelligible male/ female forms. in this article, i take up these two competing conceptions as a spring-board to thinking about gender’s contested present and future. this is not a single linear thread from now to what will be, but rather a cluster of different movements involving aspirations and fears, anticipatory practices, and critical framings of gender’s “now”. my discussion considers how to understand the conceptions of gender currently struggling for hegemony, and the tensions that exist between them. however, at its heart lies the question: can divergent conceptions of gender, developed for different tasks -including to support minorities, maintain instability, and critique the status quo –take on a more productive, less adversarial relation with one another? [2: feminists also question the notion of alignment on the grounds that suggesting gender can align with biological sex suggests sex is already gendered. ] notions of conceptual conflict and plurality are not unfamiliar to scholars. there is gallie’s (1955) influential work on “essentially contested concepts”;[footnoteref:3] wittgenstein’s work on “family resemblance”[footnoteref:4] and “language games”;[footnoteref:5] derrida’s (1992, 2000, 2001) work on the relationship between conditional and unconditional concepts (including the gift, hospitality and justice); and normative theory debates that assume possibilities for conceptual elasticity and divergence in arguing over whether concepts should be framed in ideal or non-ideal ways (e.g., see hamlin and stemplowska 2012; valentini 2012). this article draws loosely from these different discussions. working with a notion of concepts and “conceptual lines”[footnoteref:6] that, importantly, fold in actualisation as well as imagining, what it primarily takes from these literatures on conceptual plurality are three key ideas. first, that ways of understanding and operationalising any particular concept are multiple and contested. how particular concepts are used, advocated for and understood depends, among other things, on the context and the purpose of their deployment.[footnoteref:7] rather than ask pre-emptively which conception is the right or best one, it is more useful to consider their different cuts and joins (material and interpretive), and so the implications different conceptions have for how social life is understood and lived. this also recognises that while different conceptions, for instance of gender, are tied to different political projects, conceptions can take on their own life as not-sensibly-to-be-disputed “facts”, particularly when they are taken up by powerful institutional bodies and processes. [3: gallie (1955) developed the term to describe a conceptual situation in which appraisive concepts, signifying “some kind of valued achievement” (171), such as justice, democracy, or art, are subject to divergent “rival” understandings, definitions and usages that are also credible and genuine. gallie’s work has been subject to extension and critique, including over the boundaries and limits of which concepts can usefully be described as “essentially contested”; and over the conditions that generate their contestation (e.g., see garver 1990; reitan 2001).] [4: “family resemblance” applies to concepts where usages overlap to create a complex web of similar and related meanings, but where usages do not have a single shared essence (wittgenstein 2009 [1953]; see also haugaard 2010). ] [5: here, meaning does not come from a unitary and stable definition but from knowing how to use a word; where uses of language are plural and unfixed. in this way, meaning varies according to the context and purpose of the “language game” (see generally wittgenstein 2009 [1953]). according to haugaard (2010), moving between a discussion of what ‘is’ and what ‘ought to be’ involves a movement between language games. this resonates with the pluralist approach to concepts i have adopted (see cooper 2014, 2017, 2019). for a helpful discussion of wittgenstein’s ideas in relation to gender, see nicholson (1994); on the value of plural, sometimes imprecise, conceptual boundaries, and emergent definitions, see davidson and smith (1999).] [6: i use this term, “conceptual line” to describe the oscillating relationship between concepts’ imagining and actualisation through common or different temporal planes (see cooper 2014). these two dimensions of imagining and actualisation do not converge; and it is, in part, the ongoing tension, pressure, and discrepancy between them that keeps concepts in flux.] [7: see also clarke (2015: 829-830) who suggests that identities might be “unbundled”; and so defined differently in different contexts.] second, consistency and unity of use are not necessarily advantageous when it comes to thinking politically in both critical and optimistic ways. derrida’s work on conditional and unconditional concepts, for instance, suggests that value may reside in keeping the relationship between both poles in play rather than arguing for one to necessarily supersede the other (e.g., see derrida and dufourmantelle 2000). everyday pragmatic or conditional conceptions identify what is done; idealised conceptions operate as an aspiration, a horizon of impossible possibility and a standard for evaluating what is. in this article, i am less concerned with the movement between the barely acceptable and the ideal, and more with how we might move between critical, exploratory and affirmative conceptions. the third claim i want to take up suggests concepts’ evaluative or normative dimensions form key stakes in how, why and whether a conceptual line is desirable. in the case of gender, this is complicated by the fact that views differ radically not only on what gender names, but also on what gender does, and thus the normative valence that should be attributed – in basic terms, whether gender identifies something positive (or natural) or something harmful. conflicts over conceptions of gender are far from new. the one taking place in the second decade of the 21st century is a successor to previous feminist conflicts over essentialism. earlier debate arose as multiple forms of oppression became more adequately attended to within feminism, leading to debates over whether there was anything common or shared by the category of woman. while some writers and activists identified possible commonalities -from reproductive potential to subordinated status and experiences -others challenged this essentialism on empirical and normative grounds, with a third way emerging based on a “strategic essentialism”.[footnoteref:8] this third approach treated the category woman “as if” it had some core common meaning, while recognising this commonality explicitly as a politically constructed one. i return to the work performed by the “as if” later in relation to gender’s prefiguration. one striking difference, however, with the earlier essentialism debate was that the normative borders of who should count as a woman were not, for the most part, up for grabs. some feminists centred eroticised sex-based inequality in constructing the category of woman, generating the claim that lesbians weren’t women since their lives were not defined by willing sexual subordination to men.[footnoteref:9] but this was a process of self-executed category-exit rather than unwilling exclusion. it also intersected other moves, concerned to expose and overturn histories of denial that withdrew the status of woman from many thanks to racialized and socio-economic processes of symbolic and material exclusion (e.g., see carby 2007). previous debates about what it means to be a woman diverge, then, from the current conflict, which is foremost concerned with how expansively certain gender categories should be drawn. today, the starting point is not what, if anything, do all those indisputably defined as women share; but how should the criteria of woman be defined so that certain identified groupings – most prominently trans women (or trans women who haven’t undergone body modification) – get included or excluded (see also ahmed 2016a: 30). [8: for one account of this debate, see stone (2004); for critique, see munro (2006). ] [9: see wittig (1992); also discussed by hale (1996); tudor (2019). see also mackinnon (1987: 6) on gender “as the congealed form of the sexualization of inequality between men and women”.] in britain, in the later teen years of the 21st century, the conceptual conflict over gender has led two quite different accounts to come to political prominence: “gender as diversity” (gdiv) and “gender as domination” (gdom).[footnoteref:10] while other accounts exist, these two became particularly influential within wider legal and policy debate.[footnoteref:11] indeed, their prominence was partly structured by this wider institutional focus, which shaped and supported certain discursive positions in contrast to others. both gdom and gdiv embrace a spectrum of positions. for instance, gdiv includes liberal perspectives that treat gender as a core stable part of personhood alongside more experimental, critically intersectional, and fluid approaches to gender. gdom includes conceptions of gender as a social relationship entirely, and by definition, constituted through domination. but it also includes conceptions of gender that are more equivocal about the constitutive and essential character of domination in relation to what gender is and could become. [10: gdom aligns with what has been described as a “gender critical” perspective; e.g., see critical sisters; http://www.criticalsisters.co.uk/; and the socialist feminist network; https://www.socfem.net/; both last accessed 25 february 2019.] [11: this became especially apparent in organisational and individual responses to the 2018 government consultations over reforms to the gender recognition act 2004 in scotland, and in england and wales, as discussed below.] later, i discuss how liberal variants of each account gained prominence compared to more radical alternatives. however, one complication of gdom has been the growing dismissal or demotion of gender, as a critical term, by some women’s rights activists on the grounds that gender has become overly aligned with a voluntarist and stereotypical approach to identity that ignores the “real”, biological, unchosen sex-basis of women’s oppression.[footnoteref:12] according to the influential radical feminist activist-scholar, sheila jeffreys (2014: 43), “the way in which queer and transgender activists use the term ‘gender’ is problematic because it obscures the existence of persons, women, who are biologically female, and their particular interests.” this challenge to the ongoing validity of gender as a social and political concept is an interesting one for a discussion of gender’s future. however, to the extent gdom feminists recognise those social processes that convert sex into gender (while rejecting, if tacitly, the feminist counter-claim that it is gender processes which give rise to discourses of sex), gender remains an important concept. gender is also an important concept for progressive future-oriented politics since, unlike sex, it is not deemed a fixed, stable fact. in the struggle over the immediate terms and possibilities for self-determined gender, political ambitions for the future have received less attention. but to the extent that advocates of both approaches want a future that is less unequal, can gender have a future? should gender be abolished;[footnoteref:13] can it be organised in ways that are more equal and freer; what might gender then mean; and can (and should) the good life be cultivated against and away from androcentric norms? while these are normative questions, they are not only that; they are also conceptual questions, inextricably tied to the cuts and joins in how gender is imagined and done. [12: see, for instance, women’s spaces in scotland, response to scottish consultation on reforming the gender recognition act 2004; https://www.gov.scot/resource/0053/00539506.pdf; last accessed 25 february 2019. for an interesting account of the history of the term ‘gender’ which concludes by questioning its ongoing value for feminists, see debbie cameron, “a brief history of ‘gender’”, language: a feminist guide blog, 15 december 2016; https://debuk.wordpress.com/2016/12/15/a-brief-history-of-gender/; last accessed 25 february 2019. ] [13: see for instance, jo bartosch, “feminists like me have a broader aim; we don’t want more gender boxes to choose from; we want to get rid of the boxes altogether,” in ‘lesbian pride, lesbian protest’, 8 july 2018; https://medium.com/@josephinebartosch/lesbian-pride-lesbian-protest-cea2c1404cc0; last accessed 25 february 2019. ] gdiv and gdom offer conceptions of gender that diverge in multiple ways. they diverge in what gender means, its subjectivities, constitution, relations, normative valence, histories, sought-after ends, and strategies for how to accomplish them. the capacity of gender to diverge conceptually is unsurprising. within different contexts, attuned to different harms, desires and aspirations, gender acquires different meanings and uses (even as pre-existing meanings, usages and material relations shape the new ones that emerge). these different meanings and uses, arguably, could co-exist, sliding over each other, as they got taken up by different social populations. they could even remain comfortably unintelligible across different communities of usage, particularly if they remained relatively insulated, politically and socially, from each other. however, the capacity of different conceptions of gender to coexist, with seemingly mutual indifference, in divergent normative and social worlds has been undermined by a series of contact points, including the turn to law and state by different gender-based movements seeking recognition and remedial action. in the section that follows, i explore in more detail the current struggle to shape gender’s present and future meanings as law reform processes provide a stage for conflict, substantial material and symbolic stakes, and an institutionalised bridge between what is and what should be. i then shift ground to locate gdom and gdiv within a broader field of future-oriented usages that underpin gender’s conceptualisation: focusing on prefiguration, destabilisation, and critique in order to consider how these purposes affect the conceptual lines that develop; and the tensions that get engaged. driving this discussion is the question of what to do with conceptual plurality. political adversaries in the struggle over gender treat plurality as something to eliminate, hoping to gain victory for their paradigm over other contenders. but, there are other ways of approaching conceptual plurality. the relationship between divergent conceptions of gender, when it comes to material practice, has received insufficient attention in both theoretical and empirical work, including in sociolegal and gender studies. this article seeks to contribute to understandings of contemporary conflicts over gender; but as a case study of one particular conceptual conflict, it also traces an approach that can be taken up for other concepts too -property, citizenship and the state for instance -where progressive and critical perspectives tend to polarise into either critique or reconstruction. struggling for gender’s conceptual future today, the conceptual assumption that there are two fixed and stable sex-based genders, with very limited traffic between them, no longer holds up. in different countries, governments have been amending their recognition laws. these have mainly focused on regularising and, in some cases, simplifying procedures for gender transitioning. however, in a few jurisdictions, including canada, malta, denmark, california and scotland, governments are also attending to the new (rather than traditional) claims of those who identify with a gender other than male or female (see clarke 2019; holzer 2018). some countries have managed gender-transitioning law reform with minimal opposition from other progressive/ critical gender movements. in other countries, the question of who gets to define and come within the category of woman (and to a lesser degree men), and whether new gender categories can and should be legally created, has precipitated a series of flashpoints, as clusters of feminist activists oppose any changes that would make the category of woman more permeable or expansive. these institutional flashpoints echo earlier ones. feminist spaces and projects have a long history of membership tensions, one of the most famous being the michigan womyn’s music festival policy of excluding trans women’s participation (see, e.g., browne 2009; gamson 1997). but community-based boundary-disputes have multiplied and hardened as state bodies and powers get involved.[footnoteref:14] [14: see, for instance, the litigation in british columbia, canada, in vancouver rape relief society v. nixon [2003] bcsc 1936; [2005] bcca 601. in this case, a trans woman was denied access to volunteer peer counsellor training at the feminist organisation, rape relief, on the grounds she had been raised male and so had not been oppressed as female from birth.] in britain, disagreements over gender’s conceptual parameters have grown increasingly heated (see also ahmed 2016a). social and mass media stories describe participants being subject to abuse, social media attack, no platforming, the closing down of meetings, and violence.[footnoteref:15] provision of puberty-blockers for transgender-presenting children and teenagers;[footnoteref:16] and the de-sexing of public toilets (jeffreys 2014) proved two focal-points for conflict. clashes also broke out over the labour party’s decision to recognise the right of any self-identifying women to apply for nomination to women-only party posts and women-only parliamentary shortlists.[footnoteref:17] but the conflict’s gathering steam came to a head in scotland, and in england and wales, in 2018, when both governments consulted over whether to introduce a lighter-touch approach to gender transitioning given similar developments in other jurisdictions. the advancement of a self-declaration framework that would remove the need to establish “gender dysphoria”, the two year “real life” test and other “intrusive” or demeaning requirements gained support from some feminist and women’s organisations. however, others strenuously opposed it. as one organisation (fair play for women) remarked, in response to the scottish consultation on reforming procedures for gender transitioning, “trans-ideology is the belief that the subjective concept of gender identity overrides the objective reality of bodily sex. …this policy will codify this belief into law and prioritise this ideology over and above other widely held concepts such as the male and female sex binary.”[footnoteref:18] [15: e.g., see sophie hemery, ‘online platforms have enabled “deluge of hatred against trans women” in the uk’, open democracy, 15 november 2018; https://www.opendemocracy.net/en/5050/online-platforms-enable-deluge-hatred-against-trans-women-uk/; last accessed 12 march 2019; also jamie doward, ‘women’s groups claim ‘silencing’ on transgender concerns’, the observer, 14 october 2018; https://www.theguardian.com/society/2018/oct/14/women-claim-intimidation-silencing-gender-recognition-act-debate; last accessed 25 february 2019.] [16: tim adams, ‘transgender children: the parents and doctors on the frontline’, the guardian, 13 november 2016; https://www.theguardian.com/society/2016/nov/13/transgender-children-the-parents-and-doctors-on-the-frontline; last accessed 25 february 2019. ] [17: paul waugh, ‘”self-defining” trans women to be allowed on labour’s all-women parliamentary shortlists’, huff post, 6 march 2018; https://www.huffingtonpost.co.uk/entry/self-defining-trans-women-to-be-allowed-on-labours-all-women-parliamentary-shortlists-partys-nec-set-to-announce-equalities-committee_uk_5a9d94f4e4b0479c0255e9c2?guccounter=1&guce_referrer_us=ahr0chm6ly93d3cuz29vz2xllmnvlnvrlw&guce_referrer_cs=nlz8k7alxgc3_llelgnhrw; last accessed 25 february 2019; see also josephine bartosch, ‘labour’s refusal to accept the definition of a woman’, the spectator, 11 september 2018; https://blogs.spectator.co.uk/2018/09/labours-refusal-to-accept-the-definition-of-a-woman/; last accessed 25 february 2019. ] [18: response to the scottish government consultation on the gra; https://www.gov.scot/resource/0053/00539305.pdf; last accessed 25 february 2019.] the conflict that has emerged painfully exposes the contested character of gender among progressive forces. to flesh out the tensions between gender as diversity (gdiv) and gender as domination (gdom), i start with the former. gdiv dominates the accounts of those arguing for self-determination on the grounds that gender forms a core part of identity.[footnoteref:19] as expressed by the yogyakarta principles, a set of aspirational international human rights, “gender identity” is “each person’s deeply felt internal and individual experience of gender”.[footnoteref:20] as such, gender constitutes a fundamental aspect of personhood: something people have a right to have and to express without being “subject to another’s approval”.[footnoteref:21] in liberal terms, it describes a process of developing self-realisation and coming to personhood.[footnoteref:22] in more radical terms, gender self-determination also forms a terrain of creativity, choice, and sometimes experimentation, albeit one lived and structured by other social relations as well. but, in both liberal and more radical versions, the right for one’s gender identity to be publicly intelligible, recognised, treated as mattering, and supported is emphasised (see butler 2015: 35-39). judith butler (2004: 32) describes the harm that results from being treated as unreal and unintelligible; she talks of the impossibility of “persist[ing] (in my being) without norms of recognition that support my persistence”. witnesses in the 2015 parliamentary inquiry on transgender equality expressed similar views: “non-recognition has ruined my life. i feel a shadow of the person that i could have been if i had been able to lead a normal life… [m]y whole life has just been a battle for the legitimate identity that other people can take for granted.”[footnoteref:23] “as a trans man, it was very, very important to me to get an ‘m’ on my birth certificate and on my passport. that helps validate my identity, and certainly for some trans people it can make the difference between somebody respecting who they are or continuing to misgender them.”[footnoteref:24] [19: on self-determination-based approaches to gender, see clarke (2015); hutton (2017).] [20: https://yogyakartaprinciples.org/introduction/; last accessed 25 february 2019.] [21: see stonewall scotland’s response to the scottish consultation, which treats gender identity as part of the right to private and family life; https://www2.gov.scot/resource/0053/00539455.pdf; last accessed 29 february 2019.] [22: in some versions, the right to “have” a gender expresses a relationship that is propertied in its inflection, anchored in people’s ownership of themselves. for discussion of self-ownership in relation to gender and feminism, see also cooper and renz (2016); davies (1994); hutton (2017); naffine (1998).] [23: christie elan-cane, evidence to the women and equalities committee, transgender equality inquiry, 13 october 2015, hc 390, p. 32; http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/women-and-equalities-committee/transgender-equality/oral/23159.pdf; last accessed 25 february 2019.] [24: james morton, evidence to the women and equalities committee, transgender equality inquiry, 13 october 2015, hc390, p. 13; http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/women-and-equalities-committee/transgender-equality/oral/23159.pdf; last accessed 25 february 2019. ] as a descriptive and normative stance of gender’s invariable diversity, gdiv is predicated on the harms that face those whose gender identity is deemed improper -the micro-aggressions, discrimination and physical violence that people confront when their gender appearance is unconventional or when their legal and social gender diverge (e.g., see chang and chung 2015; doan 2010; lombardi et al. 2002; spade 2011).[footnoteref:25] one non-binary respondent to the parliamentary inquiry into transgender experiences commented, “in various workplaces i have experienced constant and sometimes deliberate mis-gendering, laughing at my gender identity and undermining of my gender as ‘over political,’ ‘not real’ or ‘over intellectualizing’. because my gender identity is not recognized in law and policy, it is impossible to address these issues in the workplace.”[footnoteref:26] arguments over recognition and status reform have here taken two primary paths.[footnoteref:27] while some advocate greater legal recognition and institutional mirroring of people’s lived gender identities (for instance, in legal documents), others seek to eliminate gender registration or legal gender status altogether,[footnoteref:28] on the grounds that dissident or minor gender identities would be better served by the state’s withdrawal. [25: also discussed, if less extensively, are the negative economic and workplace effects of transitioning (e.g., schilt and wiswall 2008). for an intersectional account of the ways transgender identity and class intersect in relation to the violence faced by trans female sex workers, see also namaste (2009).] [26: individual written submission to women and equalities committee, transgender equality inquiry, 18 august 2015; http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/women-and-equalities-committee/transgender-equality/written/19360.pdf; last accessed 25 february 2019. ] [27: whether recognition should include institutional recognition has led to divergent perspectives. views differ on whether it is beneficial for the state to take up gender identities and, if so, in what contexts (e.g., see shrage 2012; wipfler 2016).] [28: for discussion of some of the implications of abolishing assigned legal gender status, see clarke (2015); cooper and renz (2016); hutton (2017); katyal (2017). ] advocates of gdiv emphasise gender freedom, fluidity, and self-determination. however, what gender is remains opaque. the international yogyakarta principles tie gender to identity and expression (including mannerisms, dress etc). but while they recognise that identity and expression may not converge, what makes either one of gender is unspecified. in the re-fabrication of gender away from binary birth sex, what gender means in general, and what particular genders entail, remains little addressed. what does it mean, for instance, to express a specifically female identity, a male one, or neither? these identities or descriptions could acquire radically new meanings, but if gender and its categories are not to constitute a private language, excluding others on grounds of incomprehension, how are its terms to be intelligibly anchored?[footnoteref:29] [29: see gender critical greens, ‘gender is not an identity, it is a tool of patriarchy: a feminist view of gender identity politics’, 15 august 2016: “any attempt to define female other than by biology inevitably resorts to gender stereotypes, so all references by this ideology to ‘being female’ or ‘feeling like a woman’ are based on such socially-constructed ideas as wanting to wear feminine clothing, play with dolls, wear makeup, do ‘girly’ things, and crucially not do ‘boy’ things.” https://gendercriticalgreens.wordpress.com/2016/08/15/a-feminist-view-of-gender-identity-politics/; last accessed 25 february 2019. ] within the broad constellation of gdiv, different responses are offered. one conceptual approach retains stable and conventional notions of masculine and feminine, but recognises people may situate themselves between “binary” poles or mix and match masculine and feminine in novel and changing ways – where non-binary constitutes an identity rather than a politics of destabilisation as i explore further below (see also holzer 2018). nordmarken’s (2014: 39) autoethnography captures the complexity of this well: “i am becoming more masculine in shape and yet, more feminine in movement. i find myself embodying a certain femininity that i did not feel comfortable in, in movements before, when my body looked more female. though my voice now is in male octaves, i am speaking more softly than i did. this is a masculine-bodied femininity.” stachowiak’s (2017) discussion of people who identify as genderqueer also addresses questions of flexibility and gender-mixing. yet, the research emphasises the importance of a “felt sense of gender” among the self-identified genderqueer people spoken with. stachowiak’s (2017) participants identified “wiggle room” from being outside of defined, binary, gender “boxes” (540);[footnoteref:30] but, in the process, many also expressed largely conventional understandings of these boxes. other conceptual lines, however, recognise, more explicitly, the problems of stabilising conventional gender terms (which are not necessarily destabilised by discourses of combination and crossing). gender’s social intelligibility may come from existing discourse, but this does not mean gender meanings have to derive from mainstream notions of masculine/ feminine (see also schippers 2007). rejecting the notion of singular and unitary histories in gender’s meaning and cultures, dissident and minority gender histories -of female masculinities (e.g., halberstam 1998; mackay 2019), for example -come into view. in other cases, identification as agender or nongender constitutes a space for gender’s disavowal. this might seem to challenge the very framework of gdiv; yet, in contrast to a gender abolitionist perspective, identifying as non-gendered comes to function as one gender identity among others anchored in personal refusal. as such, it is about creating a space for those who identify outside of gender’s current classificatory terms rather than necessarily advocating politically for the destruction of these terms. [30: see also response from stonewall scotland to the scottish consultation on the gra; https://www.gov.scot/resource/0053/00539455.pdf ] if gdiv identifies one emergent conceptual constellation struggling for hegemony, gender as domination identifies another. the notion that gender oppresses and renders people’s lives precarious is not exclusive to gdom. gdiv is centrally concerned with the injuries that people face who express “gender variant” identities, where violence and erasure confront those who live outside, or fail to meet, normative gender terms. sara ahmed writes (2016a: 32): “we can think of gender norms as places in which we dwell: some are more at home than others; some are unhoused by how others are at home.” gdom also concerns itself with gender policing and the experience of being “unhoused”, particularly for women who refuse their conventional social role. however, gdom, at least in the formulation presently prevailing, is primarily attuned to the harms that normative gender conduct generates. violence, exploitation and men’s domination of women form gender’s constitutive core -part of the normal, everyday, casually expected, and socially policed patterning of gender (or sexed) class relations. this, then, is a core distinction between the two conceptions: in one, gender harms primarily confront those who live non-normative lives; in the other, gender harms primarily confront those who live subordinate lives, where being subordinate is integral to the normative harms encountered. or, to put it another way, gdiv foregrounds the right to have a gender, whereas gdom foregrounds the rights and freedoms some people lose because of the gender that they have. sheila jeffreys (2014: 43) writes: “women do not adopt the identity of being women, but rather possess female biology and on this basis are reared in a subordinate relation to men.” gdom’s analysis is a relational one. while it focuses on domination as gender’s central relational feature, it also recognises relationality in three other respects: that what being a woman or man means comes through relations and interactions with others;[footnoteref:31] that one’s own particular gender is determined by and dependent on others’ recognition (and treatment); and that gender characteristics are constituted relationally in the sense that, within a binary scheme, each gender is assumed to be an inversion of the other. as one women’s organisation wrote, responding to the scottish consultation on reforming the gra: “gender is a set of stereotypes based on sex. it is a hierarchy which places women in a box marked weak, submissive, maternal, emotional and men in a box marked strong, aggressive, dominant.”[footnoteref:32] at the same time, they continue: “no individual conforms to these stereotypes, we are neither barbie nor action man.”[footnoteref:33] for gdom, these dimensions of relationality are interconnected: what it is to be a woman is defined by the presumed lack of male-associated qualities, where being a woman is to be perceived and treated as a woman, and where one becomes a woman through a complex mix of relational processes (see also schippers 2007). yet, these relational processes are underpinned by biology. gdom presents an explicitly materialist framework against the idealism which gdiv is dismissed as bearing, and the female body is deemed the incipient material form causing women to be oppressed:[footnoteref:34] “sex is the scaffolding upon which gender roles are constructed.”[footnoteref:35] through this structure of biology plus socialisation, women constitute a formation with class-based interests -proletarianised as an exploited, dominated, and vulnerable class thanks to “real” physical relations. violence, child-birth and sexual exploitation are the material practices that ground women’s vulnerability. and in this emphasis on biologically-rooted social and physical experiences, little accounting space is left for language, meaning and affect. as one responding organisation to the scottish consultation remarked, “sex isn't about how one identifies or feels, but is an objective, verifiable fact. … the law needs to reflect the material reality of people's lives. regardless of how a person identifies, if she is female, she is at risk of male violence, of discrimination in the workplace etc. on the basis of biology, not feelings.”[footnoteref:36] [31: see also connell and messerschmidt (2005); fenstermaker and west (2013) on different dimensions of gender’s relational and interactive character. ] [32: women’s spaces in scotland, response to the scottish consultation on the gra; https://www.gov.scot/resource/0053/00539506.pdf; last accessed 25 february 2019. ] [33: ibid. ] [34: this conception of sex/ gender has been extensively criticised by feminists for some decades for ignoring the complex character of women’s inequality and domination, including the part played by capitalism, racial classifications and colonialism (e.g., see carby 2007; lugones 2007).] [35: socialist feminist network, ‘on not being allowed into leftist spaces’, 6 june 2018; https://www.socfem.net/2018/06/leftist-spaces; last accessed 25 february 2019. ] [36: response from women’s spaces in scotland, submitted to scottish consultation on the gra; https://www.gov.scot/resource/0053/00539506.pdf; last accessed 25 february 2019.] legal dystopia the institutional arena of law reform provides a site where these competing conceptions of gender meet; but it is also more than that. in britain, proposals to make changing one’s sex/ gender status easier have intensified conflict, and provided many of its terms, as participants fight over what gender and sex mean in law, and how changes to the gender recognition act 2004 will (or won’t) affect interpretations of the equality act 2010.[footnoteref:37] institutional sites of law reform and public policy have also affected the relative prominence of different strands within the two constellations. thus, while one strand of gdom points hopefully to gender’s (far off) abolition,[footnoteref:38] women’s interests advocates focus on a less hopeful (nearby) future as they emphasise women’s vulnerability and need for protection, including through activities and spaces which functionally separate men and women. the future presented here is a dystopic one where men claim femalehood, opportunistically seeking to pass as women in ways that jeopardise “real” women’s safety and privacy.[footnoteref:39] the women’s interest group, fair play for women, describes how conflating gender identity and sex, so that “self-identification policies become the norm”, will cause harms to women to “become common place. this is neither viable nor fair.”[footnoteref:40] toilets, changing rooms, girls’ youth organisations, hostels, and prisons emerge as the dystopic terrain of women’s vulnerability to enduring predatory male behaviour.[footnoteref:41] [37: for one attempt to clarify the relationship between the two legal frameworks, see ehrc, ‘our statement on sex and gender reassignment: legal protections and language’, 30 july 2018; https://www.equalityhumanrights.com/en/our-work/news/our-statement-sex-and-gender-reassignment-legal-protections-and-language; last accessed 12 march 2019. ] [38: some respondents to the scottish consultation described their politics as “gender abolitionist”; e.g., see lyons' point educational coop response; https://www2.gov.scot/resource/0053/00539376.pdf; last accessed 25 february 2019. for a review of academic discussion of “degendering”, see lorber (2000). ] [39: see ‘sex self-id and what it means for privacy, safety and fairness for women’, fair play for women, 8 september 2018; https://fairplayforwomen.com/examples/; last accessed 25 february 2019. ] [40: ibid.] [41: see also schilt and westbrook (2015: 27) on the “gender panics” occasioned by conservative and other opponents of transgender rights, where “people react to a challenge to the gender binary by frantically asserting its naturalness”.] so far, this article has traced two conceptions of gender – conceptions that have become publicly prominent in britain today. both counter the conventional notion of gender as the natural-social life of binary biological sex. without knowing, of course, what gender’s conceptual future will be, these two contrasting conceptual lines provide possible and plausible ways of reimagining what gender is and means; but what should we make of their struggle to determine gender’s truth – whether as a relation of class domination or as a form of diversity? to the extent that this is a struggle for exclusive definitional capture at the expense of other competing definitions, does it limit the contribution any one conception can make to the “better” society of progressive utopian yearning (e.g., levitas 2013)? to address this question, i want to broaden my focus from gender as either diversity or domination to consider how different conceptions of gender get taken up for different purposes. gdiv and gdom map broadly onto gender affirmation and critique respectively. but there are other conceptions of gender that might also do this work. there are also other political tasks for the concept of gender. i therefore want to move beyond the binary of diversity/ domination as well as the binary of affirmation/ critique. yet, rather than search for a single conception of gender to work effectively across multiple contexts and usages, i want to consider whether and how different conceptions of gender, oriented to different purposes, might fruitfully and interactively coexist. addressing this is crucial for left gender and feminist politics that want to find ways of moving beyond the conceptual wars currently taking place. it is also crucial for a project of law reform that does not want to become cubby-holed or paralysed by incompatible approaches. what follows are some tentative conceptual lines, drawing on a utopian method, attuned to materiality, plurality, disorientation, and present-futures. prefiguring gender prefiguration provides a helpful concept for thinking about how gender’s imagined futures might materialise within the present.[footnoteref:42] challenging conceptions of man and woman as fundamentally descriptive, they become instead categories to take up and repurpose (see also hale 1996: 105-6). prefiguration thus goes to the heart of a conceptual approach that does not simply advocate for new gender meanings, but foregrounds their materialisation as well. what is enacted here, importantly, is also something more than a redrawing of group membership boundaries, e.g., who counts as a man. at stake also are different ways of understanding gender (including as relinquishable, plural, fluid, chosen etc.). i therefore want to think about the prefiguring taking place as a form of prefigurative conceptualising (see cooper 2017) where dissident or minor meanings are taken up and enacted as if they were valid -in contrast to a conceptual approach that merely fantasises, advocates for or desires them. [42: on prefiguration, more generally, see maeckelbergh (2011); swain (2019); yates (2015).] prefiguring gender as if it means something beyond the contours of a conventional common-sense is not the preserve of a gender-affirming politics alone. gender-abolitionist perspectives have also prefigured what gender might mean – acting, for instance, as if gender was something eliminable. feminist protest communities, such as greenham women’s peace camp combined the rejection of conventional feminine norms of presentation and capacity with an assumption of feminist norms anchored (at least for some) in self-identified women’s-cultures of peace, caring, intergenerational responsibility and horizontal collaborative politics (roseneil 2000). what is prefigured changes over time. an earlier generation of activists prefigured the shift from androcentric to gynocentric norms while also severing the taken-for-granted linkage between the sexed body and stereotypical masculine and feminine assumptions. this latter continues in contexts where people treat the social fabric “as if” it can make room for diverse non-hetero-normative (if sometimes heterosexual) ways of living: men as primary child-carers, women in manual trades, lesbian, gay, queer, polyamorous households.[footnoteref:43] however, the form of prefiguration currently receiving attention is rather different (although it also sometimes combines with these other forms). its central premise is the notion that intelligible genders, disarticulated from birth sex, can be combined and mixed; where genders are (potentially) transient, multiple, and changing – both in themselves and in their relations, connections and overlap with each other (see also linstead and pullen 2006; mackay 2019; stachowiak 2017). today, these moves are largely associated with genderqueer, non-gendered, trans, intersex and other “gender variant” community practices, prefiguring gender-as-diversity in their clothing, body hair, pronouns, self-descriptors, and intimate and sexual relationships (mackay 2019). this form of prefiguration is striking in breathing life into gender rather than away from it. it also suggests a different kind of relationality. moving away from a binary framework of contrasting genders to one of multiple genders foregrounds gender’s capacity to develop and be expressed in ways that do not depend on inversion or reversal (where woman is everything man is not, and vice versa). it also recognises that new, not yet imaginable, categories and ways of doing gender will emerge, as what gender means continues to evolve, both in its substance and in the dimensions of life to which gender is tied -as gender’s depiction as an expressive language of social and personal action becomes more pertinent. [43: a different feminist enactment of a hoped-for future appears in sarah browne and jesse jones’ workshop performance piece. it presents a “postpatriarchal archive” of objects that have become “ideologically obsolete” in the future that they wittily anticipate; http://www.sarahbrowne.info/work/burn-in-flames/; last accessed 25 february 2019. ] yet, describing the manifestation of non-normative genders as prefigurative is not wholly unproblematic. aside from some feminists’ concerns about gender’s salvaging, two interconnected lines of criticism emerge. the first suggests that gender is not being prefigured as plural and diverse; for this simply expresses what gender truly is. from this perspective, it is others’ claim that there are only two genders that is the mistaken or fanciful one. identifying gender as diverse and mutable, however, can be seen as prefigurative without this implying that such gender enactments are less authentic than more conventional variants. the “as if” quality of prefiguration does not have to mean acting as if particular “fictive” genders were real while “knowing” that they are not, for this would solidify a conservative account of what gender really is. rather, it means enacting sought-after changes as if they can be carried by society as it is. in other words, the “as if” quality of prefiguration goes to the wider social environment, and its readiness to treat non-dominant genders as liveable. yet, even if diverse genders are not treated as fictive, a second line of criticism emerges. this worries that non-normative genders are being taken up as tropes or figures of a future-oriented politics, where minority genders become appropriated as the emblems of what gender could become.[footnoteref:44] this criticism becomes particularly acute when minority genders are celebrated for, and so expected to demonstrate, constant fluidity and flux. queer expectations of gender being endlessly in motion have been criticised for seeming to dismiss the interests, needs, and social experiences of currently precarious subjects, placing future imaginaries of the unimaginable above present-day concerns (see also butler interviewed in ahmed 2016b: 490-1). yet, while recognising the importance of this criticism, can there still be a space for an exploratory, experimental gender politics? [44: for instance, see one written response to the transgender equality inquiry, 18 august 2015: “if passports were to have an ‘other’ or ‘x’ category, it would offer official recognition of my gender identity and help me to be confirmed by others in my gender identity. this would radically relieve the everyday anxiety of living a non-binary gender.” http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/women-and-equalities-committee/transgender-equality/written/19360.pdf] prefigurative politics in recent years has become more open-ended and contingent, aware that the better future constitutes a fluctuating aspiration of the evolving present not a stable and knowable real time outside present-day constraints (see also jameson 1982). this version of prefigration emphasises invention; but, when it comes to gender, can a curious anti-hegemonic ethics coexist with one of identity-affirmation? the tension between representing (or establishing) a particular desired outcome and constantly destabilising what is runs through much contemporary utopian thinking.[footnoteref:45] fredric jameson (1977: 16) describes the “tension, profoundly characteristic of all utopian discourse, between description and narrative, between the effort of the text to establish the coordinates of a stable geographical entity, and its other vocation as sheer movement and restless displacement, as itinerary and exploration and, ultimately, as event.”[footnoteref:46] [45: gender as diversity can be both destabilising and affirming. nordmarken (2014) describes the early sensation of exhilaration from transitioning into a more masculine-perceived form of embodiment as it generated confusion among others. at the same time, nordmarken’s account evocatively describes the growing fatigue and experienced intrusiveness from relentless attention (41).] [46: see also preciado (2008) on “gender-copyleft tactics”, taking up our techno-bodies to multiply possibilities for doing sex/ gender as a public or commoning practice. “gender-copyleft tactics should be subtle but determinant: the future of sex and the open gender of the species is at stake. there should not be one single name that can be patented. it will be our responsibility to remove the code, to open political practices, to multiply possibilities.”] the drive for institutional recognition and the influence of law reform processes over the gender discourses that prevail has led both gdom and gdiv to minimise the value and legitimacy of more playful, exploratory, ill-disciplined conceptual lines. in part this may be because institutional take-up, especially by law, depends on needs being presented (and accepted) as serious and weighty. in part, it may be because law reform processes privilege conceptual lines that have conventional resonance and currency -those that can align themselves with discourses of human rights, freedom, unchosen immutable conditions and vulnerability, for instance.[footnoteref:47] yet, adopting an open-ended, exploratory approach to gender does not have to be at the expense of supporting and affirming dissident gender enactments. utopian approaches are helpful here in emphasising the value of several simultaneous moves: of attending to the interests, concerns and subjectivities of the present, of imagining -across different temporal and spatial scales -other ways of living, and of treating the creation of new futures as an undetermined, open realm of possibility (see levitas 2013; sargisson 2012).[footnoteref:48] [47: see for instance, the discussion in pink news in relation to the consultation on the gra, sascha amel-kheir, ‘gender recognition act reform: i’m non-binary and this is why i need your help’, pink paper, 9 october 2018; https://www.pinknews.co.uk/2018/10/09/gender-recognition-act-reform-im-non-binary-and-this-is-why-i-need-your-help/; last accessed 25 february 2019. see also nick duffy, ‘metro newspaper runs full-page ad attacking transgender rights reforms’, pink news, 10 october 2018; https://www.pinknews.co.uk/2018/10/10/metro-newspaper-full-page-ad-attacking-transgender-reforms/; last accessed 25 february 2019.] [48: for further discussion on the temporary and contingent character of identity attachments, see hall (1996: 6); also lehtonen (2018: 158-9). in line with thinking about “critical utopias” (moylan 1986), this emphasises the importance of critical reflexivity in relation to even seemingly progressive developments.] making room for critical conceptions of gender conceptions of gender that make room for experimenting with the “not yet” and the “not sure” constitute one supplementary conceptual approach. a second returns us to the critical ethos of gdom. critical accounts of gender as-it-is are vital to a utopian politics of gender. conceptual prefiguration may involve acting as if meanings are (and could be) otherwise, but it is important not to lose the double character of the “as if” – on the one hand manifesting desired or preferred meanings; on the other, recognising that these meanings may not in fact prevail (see also swain 2019). this means recognising those other conceptual cuts and joins that illuminate social life and are actualised as part of it. new gender meanings, as gdiv demonstrates, draw attention to specific harms, including previously unattended to ones. but other kinds of gender harms, including those that feminists have long identified and analysed (involving resources, opportunities, the organisation of time and care-work, violence, sexual exploitation, and economic and political power), may require different conceptual lines. so too may accounts of the divisions and organisation of institutional and social life. feminist work over several decades has explored the gendering of law, institutions, spaces, language and multiple other fields (e.g., see beckwith 2005; smart 1992). feminists argue that these are gendered, but the accounts of gender being deployed do not start (or, rather, do not have to start) with group-based or subject-oriented accounts of men and women. instead, gender is conceptualised through, and as giving rise to, regimes, systems, institutions, discourses, actor-networks and organising principles (e.g., cooper 2004; lagesen 2012; lorber 2000; martin 2004; pascall and lewis 2004; walby 1990, 2007). there is no single right answer to the question of whether gender should be understood as a process that shapes all aspects of social life or whether it should be understood more narrowly – for instance, as the category distinctions that define and emanate from sex-based differentiation. but in assessing whether gender should be conceptualised expansively or narrowly -recognising that the former may require chains of (historic) association to link gender to areas of life (rationality, affect, privacy, war etc.,) beyond its own limited terms -does the task make a difference? do we need different conceptions of gender when it comes to affirming difference, destabilising new forms of settledness and critically understanding the status quo? typically, critical analyses of the present read social concepts expansively in terms of their reach and scope in order to highlight embedded and formative processes. as joan acker (1992: 565) remarks, “rather than being a specialized area within an accepted domain, gender is the patterning of difference and domination through distinctions between women and men that is integral to many societal processes” (emphasis added). this makes gender (or related concepts, such as race) less easy to extract -practically or analytically -as discrete social forms. adopting an expansive and enmeshed approach to the conceptual character of inequality means equality cannot be attained (or only a thin form of equality would be attained) by simply redistributing goods, dangers, responsibilities, and freedoms between groups without touching more systemic processes. critical conceptions also tend to draw strong ontological lines around key sites or subjects to emphasise inequalities of power and intensities of harm. whether in relation to the state, capitalism, gender or other powerful forces of injustice, the critical tendency is not to foreground variation, countervailing exercises of power, or the capacity for creative agency where this undermines the force of the argument in terms of demonstrating what is wrong and at stake. when it comes to critique, this conceptual clarity is effective, but for other uses, it has limits. as gibson-graham (1996) have influentially argued in relation to the economy, supporting and growing new progressive alternatives benefits from conceptions that make room for existing diversity (that refuse, in their case, to treat capitalism as overpowering and all-pervasive). the proposal of this article, however, is not that a conception of gender attuned to domination should be replaced with one attuned to diversity, nor to replace a conception attuned to critique with one attuned to prefiguration or to experimentation; but, rather, to find ways of sustaining incommensurate progressive conceptions, attuned to different tasks. this, however, begs a difficult question: can clashing conceptions be sustained in fruitful relation to each other. this is an important question for a range of left projects, where the conceptual terms that support critique may not be the ones that support experimentation or hopeful notions of progress. i do not have the space here to address this question in any detail, but i want to briefly sketch one possible response involving two lines of thought. first, where might we find resources to help think about relations of fruitful coexistence, including through productive tension, rather than just relations of hostile antagonism? second, what does this plurality entail when it materialises in particular social spaces and sites, including state institutions and law? in thinking about the first, of conceptual neighbourliness or contact, legal pluralism offers a helpful framework. legal pluralism addresses how different forms of state and non-state law interact. while it recognises state law is usually the more powerful framework, its focus is on mutual relations of borrowing, parallel (isomorphic) forms of rule, the delegation or seizing of authority and power, bridging figures, and the evolving, complex interpenetration and connections between different legal orders (e.g., see cooper 2019; griffiths 1986; melissaris 2004; merry 1988). applied to gender’s contrasting conceptual lines, exploring these different elements -from a starting point that assumes plurality rather than unity -opens up forms of interaction beyond antagonism or mutual disregard. taking the two conceptions of gdom and gdiv, centred in this discussion, might mean exploring what they take from each other, the figures and institutions that force conflict but might also act as communicative bridges, the social conditions that underpin their differential power and influence, and the distributive allocation of their autonomy -recognising the different domains where they each might “make better sense”. what then does this mean for law? the assumption of many law reformers is that legislative use of a concept needs to be consistent – that gender (or sex) must mean the same thing across law’s different fields. if this is the case, the stakes are high. as one women’s organisation wrote, in response to the scottish government’s consultation on the gra: “for a government to seek to abolish the common understanding of man and woman without any explanation, never mind involvement of, its citizens cannot be right. it cannot be right to infer that human beings are not sexually dimorphic, that there may be in fact 3 sexes (and why just 3?) without any evidence.”[footnoteref:49] legally recognising gender as a deeply personal aspect of identity – whether divided into three categories or two -seems to undermine attempts to experiment with gender or to unsettle and craft new gender meanings. it also seems to undermine accounts of gender as systemic domination. of course, this presupposes that state law has the power to determine what gender could come to mean or, at least, to assert an authoritative account. legally pluralist, contextual and actor-network approaches to law dispute the normative force of state declarations (e.g., see davies 2017a). at the same time, to the extent that institutions, such as state law, participate in giving force and authority to particular discursive accounts or rationalities, there may be good reason to try and sustain plural conceptual lines, recognising the inevitability of different legal “language games” when it comes to gender (davidson and smith 1999). [49: women’s spaces in scotland response to the scottish consultation on the gra; https://www.gov.scot/resource/0053/00539506.pdf; last accessed 25 february 2019. ] as a deliberate legislative undertaking, conceptual plurality can be sustained (or introduced) in different ways (see also clarke 2015). state law might insulate legislative fields from each other, draw on different interpretive frameworks within different legal areas, use overlapping but distinct terms (sex and gender, for example), devolve authority for gender-based decisions (to bodies working with different gender accounts), legislate policies that don’t rely on gender’s explicit naming or definition (for instance, in relation to welfare, taxation, immigration, low pay, collective property rights and public space); and advance substantive principles and norms that decentre the middle-class, white, male, able-bodied subject. each of these moves raises complex questions. what is important for my discussion here is that legal conceptual plurality is recognised rather than denied. margaret davies (2006) has very helpfully explored the presence of plurality within state law, including the common law. the challenge of the analysis presented here is whether, and how, legislative reform might engage explicitly with different gender conceptual lines, rather than treating inconsistency as a source merely of unwelcome confusion (see also cooper 2019; davies 2008: 288, 2017a, b; naffine 2009). conclusion this article has explored the challenge of creating new conceptual lines for gender in conditions of conflict, where what gender is and means are in dispute. in britain, currently, different gender projects challenge different gender harms, seek to create different hopeful futures, and worry over different approaching dystopias, as they advance radically different accounts of gender and its categories – of how people are gendered and what their gender means. such divergences are not uncommon. in this context, different conceptions might have been able to coexist along separate normative planes. however, this coexistence came under pressure as state, law and institutional bodies, such as the labour party, became the sites through which a struggle for gender’s conceptual future took place. this article has sought to elucidate some of the key tensions and issues at stake. however, it is also intended as an intervention, taking up the contemporary struggle to define gender as a way into wider questions about conceptual plurality. too often social and political forces seek to impose a single definition – whether of the state, law, capitalism or gender. yet, this article suggests that different conceptions, even within critical and progressive spaces, are inevitable and can be valuable, since they reflect the different uses and purposes to which concepts are put. while other work on concepts focuses on divergent conceptions arising from epistemology, political ideology, ontology, and methodology, 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yates, luke. 2015. “rethinking prefiguration: alternatives, micropolitics and goals in social movements”. social movement studies 14 (1): 1–21. _____________________________________________________________________________________ 20 _____________________________________________________________________________________ 1 alessandrini re-thinking feminist engagements with the state and wage labour __________________________________________________________________________________ feminists@law vol 4, no 1 (2014) __________________________________________________________________________________ research note: re-thinking feminist engagements with the state and wage labour donatella alessandrini[footnoteref:1]* [1: * reader in law, kent law school, university of kent, uk, email d.alessandrini@kent.ac.uk. ] this note draws on previously published work which has reflected on the (dis)continuities between two different types of feminist engagement with the state and the wage society (alessandrini, 2011, 2013). the aim is to raise questions the network, with its focus on gendering labour law, might consider worth pursuing as part of its future research agenda. even though i am not a labour lawyer, i have an interest in labour theory and this comes from a particular tradition, that of feminist autonomists who have critically interrogated marx’s labour theory of value, that is, the theory according to which labour is the source of value in capitalist economies, by paying specific attention to the role of social reproduction.[footnoteref:2] i draw on this tradition for two interconnected reasons: first because i think it offers important resources for thinking about the links between gender, labour and value in today’s post-fordist economies, exactly at a time when these links appear to have become more tenuous; secondly because it provides the opportunity to think about the sort of arrangements that might be able to affect these links, thereby shifting current value-making processes. [2: although there are different understandings of the concept of ‘social reproduction’, for a comprehensive definition encompassing biological reproduction, including sexual, affective and emotional services; unpaid production of goods and services in the home and within the community; and the reproduction of culture and ideology which can both stabilise and challenge dominant social relations, see rai, hoskyns and thomas (2010). in this paper i use it to refer more broadly to the way we collectively organise our living, including but not limited to the unpaid domestic labour and caring that goes into producing and reproducing life’s conditions and which is currently organised through households, the market and the state, with the crucial role played by immigration policies (see fudge, 2011). this comes very close to the social provisioning approach adopted by feminist economists, see section 1 below.] what i would like to do is to reflect on the potential of one particular (and seemingly anachronistic) arrangement to do just this. recently, some feminist economists have started to engage with a proposal put forward by post-keynesian scholars which demands that the government acts at once as the employer of last resort (elr) and a social provider, particularly of care. i will briefly illustrate how such a proposal appeals to feminist economists who have long argued for the inclusion of social reproduction within the general analytical framework of political economy. my focus however will be on exploring what i think is a crucial concern, that is, that by participating in programs such as this one we might end up sustaining, rather than undoing, the very relations we seek to challenge. it is in this respect that i will draw on the work of italian feminist autonomists who since the 1970s have argued not only against the wage society but also against the welfare state; and ask how we can make sense of a project such as the elr in light of this tradition of feminist work. rather than setting these two very different moments in opposition to one another, my intention is to explore what is at stake for both, which has to do with the promotion of arrangements able to ‘provoke’ alternative valorisation processes. elr and the social provisioning approach of feminist economists i will start with a snapshot of the elr program. although the idea goes back to the seventeenth century, its revival within the framework advocated by keynes for the socialisation of investment occurred in the 1960s (kaboub, 2007). the central tenet is that the government becomes a permanent guarantor of jobs for anyone able and willing to work for a socially established wage and benefits. the program is permanent in time but is meant to change in size so that it expands in periods of recession such as the current one to absorb workers who have been made redundant and contracts as the economy recovers and the private sector is able to re-employ workers. economists have pointed to four essential features of the program: firstly it operates as a buffer stock employment mechanism (minsky, 1986; wray, 1998). they point to the fact that when jobs are guaranteed, uncertainty and precariousness are reduced for people and at the same time firms’ expectations of consumers’ demand become more stable (so they can plan production and so on). secondly, it sets the ‘floor’ price of labour and thus ensures price stability since private sector jobs are provided at a mark-up over the elr fixed wage (kaboub, 2007: 11). thirdly, by providing continuous training to displaced workers, it contributes to the appreciation of skills that unemployment drastically interrupts, thereby also furnishing the private sector with a constant pool of skilled workers. this leads to the fourth feature, the relationship with the private sector is one of cooperation rather than competition: the program is supposed to focus on activities that are either undersupplied or not supplied at all by the private sector. usually this happens when they are not profitable because pecuniary considerations are the major determining factor. it is important to emphasise that unlike post-war keynesian policies which aimed to guarantee full employment at times of crisis by promoting government spending in some activities, and which often resulted in the strengthening of the military establishment, this is a permanent program according to which the state invests in sectors where private companies do not because they find it unprofitable. we know there are currently many sectors left out because pecuniary considerations are the determining factor in investment decisions; one needs only to think about low-income households.[footnoteref:3] post-keynesian economists have also responded to arguments about the rise of inflation the program might cause as well as its costs. however, rather than focusing on its sustainability, my interest lies in exploring the question of why and how this program appeals to feminist economists. one of the reasons is that it moves the debate about how to organise provisioning in our society away from both attempts to allocate unemployed workers among scarcely available jobs and also welfare programs based on the punitive mean-tested approach to securing income (todorova, 2009: 13). in this respect the program comes close to the so-called social provisioning approach to the study of economics which has been the methodological standing point of feminist economists. [3: this is not to say that social reproductive activities are not profitable. indeed, services such as advanced health care and higher education have been, and are being, privatised for profit. access to these services remains, however, dependent on income. at the same time, sectors which do not require high capital investment, mainly because labour cannot be easily replaced with capital and its productivity improved through technological development, will experience a different degree of privatisation. i thank judy fudge for raising this issue and pointing me in the direction of himmelweit’s work which has shown how, in relation to these sectors, an increase in wages will comport an increase in the cost of care, with the likely result of ‘inequality in access to affordable care becoming a major issue in many high income countries’ (2013: 12). ] although there are a variety of traditions that inform feminist economics (tong, 1998), a point of agreement is the understanding of economic activities as interdependent social processes. as power puts it: ‘to define economics as the study of social provisioning is to emphasize that at its root, economic activity involves the ways people organize themselves collectively to get a living’ and manifestations of such an approach have included unpaid and caring labour. however, social provisioning does not only concern ‘unpaid’ and ‘caring labour’; nor is it a distinctive ‘woman’s issue’. at a methodological level, power continues, ‘starting economic analysis from this standpoint illuminates the ways a society organizes itself to produce and reproduce material life...and the outcome of such a process is social production and reproduction’ (power, 2004: 7). thus the specificity of the social provisioning approach is that it is not an adjunct to economic analysis but its very starting point. it is an approach that emphasises the interconnectedness and mutual constitution of the productive and reproductive spheres contra current economic understandings that foster an ever growing disconnect between the two. from this standpoint, then, we can understand the fascination of feminist economists with the elr program because it has the potential of putting at the centre of economic activity the ‘planning and implementation of life-supporting and life-enhancing projects’ (todorova, 2009: 9). but how is this potential to be realised? the answer given by feminist economists is by intervening in the job ‘design’ of the program. the assumption is that applying such an approach to the job design will contribute to making a whole range of valuable non-performed, underperformed or unremunerated activities emerge as remunerated ‘jobs’. and this process would not only mean incorporating caring labour within the creation of new jobs, however important this aspect is for challenging the distinction between productive (paid) and unproductive (unpaid) care labour. it would also mean including the whole spectrum of activities encompassing the broad terrain on which the re-production of life is made possible and on which we need to invest, from child care to health care, from care for the elderly to environmental care, from restoration to engineering, from transport to housing, from manufacture to finance. in other words, applying a social provisioning approach would allow the myriad of activities that sustain our life process to come to light and be ‘valued’; and this is clearly the potential that engaging with such a project offers. but here also lies the problem: making a whole range of ‘hidden vacancies’ become visible seems akin to preparing them for marketisation. indeed, the fact that the whole program remains an institution of wage labour requires us to consider the consequences of supporting such a comprehensive macroeconomic policy (antonopoulos, 2007). this is a crucial point and one which resonates with the argument feminist autonomists made in the 1970s not only against the wage society, which has made people dependent on wages for their survival while simultaneously denying access to work, but also against the welfare state, which they saw as the protector and guarantor of a social division of labour that promotes cooperation at the point of production and atomisation and separation at the point of reproduction (see dalla costa, 1972, 2002; dalla costa and james, 1972; fortunati, 1981; federici, 2004, 2008). for these reasons, rather than engaging with the state and taking up wage labour, they thought it important to think of arrangements able to promote (non-capitalist) processes of valorisation. for instance, whilst they strategically supported the wages for housework initiative, they insisted on the collectivisation of social reproduction through the creation of self-managed and alternative social services, for instance in the areas of health, birth control, abortion and the prevention of domestic violence. labour, value and alternative valorisations what i want to emphasise is the fact that this praxis derived from a profound reconceptualisation of political economy which feminist autonomists saw as the nexus between economy and society, two realms which had been kept separate by a belief in an economic order governed by natural laws that exist ‘out there’ and that society had to discover and implement, for instance, the law of demand and offer, the law of equilibrium, and even certain interpretations of the marxist law of value.[footnoteref:4] in particular, through their work on reproductive labour they showed how value is actively made and measured, rather than being objectively determined, under capitalism. recognising that the way in which capitalist value (i.e. exchange value) is produced and determined is a process rather than an imperative meant confronting its contingency and contestability, thereby beginning to explore the possibility of alternative processes of valorisation. these insights led them to re-work the category of self valorisation: whereas for marx it denoted all that which is involved in the expanded reproduction of capital, they used it to indicate those labour activities which do not simply react to capital but are able to exceed it through creativity and invention (dalla costa, 1972). they for instance engaged with gabriel tarde (1902) whose work on value had argued that classical political economy ‘was at fault for the omission of affections, and especially of desire, in analyses of valorization’ (fortunati, 2007: 142). [4: this is the theory according to which labour is the source of all value and socially necessary labour time its measure. now, while marx saw the domestic sphere as unproductive (that is, from the point of view of commodity production), autonomists like fortunati showed how the production of goods and services, including prostitution, was a crucial stage in the production of surplus value. thus, the separation of the process of production of commodities from that of reproduction, even though the two are indissolubly connected in producing value, is what allows capital to make huge money savings (fortunati, 1981: 82). the work of feminist autonomists therefore aimed to demonstrate the inadequacy of socially necessary labour time to provide the measure of value of a commodity. their point however was never to get at a more precise calculation of such value but to focus the attention on how labour was divided/organised and expose the political consequences deriving from such an organisation (see also elson, 1979: 23). ] picchio’s work in this respect has been crucial. she has shown how after smith and ricardo, the vast spectrum of desires, passions and interests that animate social interaction, and which were the subject of classical political economy, has been reduced to only one, that is the maximisation of material wealth through exchange and competition. once these had been posited as the principal means and objective of our economic system, a specific division of labour between production and reproduction was established that serves this purpose (1992, 2009). it is worth reflecting a little bit more on how such division of labour takes places, excluding from social analysis other modes of existence and introducing the wage as a central mechanism for regulating social interaction. picchio’s interest in classical political economy derives from the latter’s meticulous study of the transformations which by the eighteenth century had radically reshaped the economy-society nexus in england. classical political economists pointed to the fact that whereas previously the household produced for the reproduction of its members, the new system used ‘the reproduction of the labouring population for the accumulation of capital’. smith and ricardo, however, understood capital not only ‘physically, as tools or goods, but as a specific historical relationship between the labouring population and its means of reproduction’ (1992: 8).[footnoteref:5] they took for granted that this relationship was regulated by certain constraints, such as the imperative for capital to make savings and expand, and acknowledged this process happened chiefly by reducing the costs of reproduction. however, they saw these constraints, as well as the consequences deriving from them, as historic rather than natural. thus, the tendency to reduce the costs of reproduction made this relationship a conflictual one and that is why the wage was so central to smith and ricardo’s analyses. for both it was ‘the outcome of a complex series of social and political forces, embodied in a variety of institutions and expressed through a variety of social norms’; thus, although wages had to be kept ‘within the bounds necessary for a viable relationship between social production and accumulation’, it was clear to them they were contingent and the product of struggle (1992: 29). [5: ‘the share of output distributed to the labouring population as a whole cannot exceed the limits consistent with capitalist accumulation. the lower limit of that share is defined by the need to reproduce the labouring population, and the upper limit is defined by the needs of accumulation. in this double constraint lies the problem of the classical political economists’ (picchio, 1992: 17-18).] crucially, picchio argues, this notion of the wage as the cost of social reproduction is what gets displaced through the work of subsequent thinkers such as mill, torrens and mcculloch, who introduce the concept of the ‘wage fund’, the idea that wages are determined in the market by the supply and demand of labour. this conception creates an inversion of analytical focus: wages are no longer ‘taken as a reflection of the exogenous modes of reproduction, but reproduction – in quantity and standards – [is] seen as depending on wages determined by the allocation of quantities of capital and population’ (1992: 56). this inversion provides the foundation of the modern approach to economics and we see it at work when notions of scarcity and economic imperatives or laws are used to justify unemployment and the need to freeze or cut wages. this loss of analytical focus has also had political consequences as the conflict is no longer between wage and profit within the total value produced but between sections of the labouring population within a given fund. in this context, competition emerges as the chief mechanism regulating social interaction, the latter reconceptualised as exchange, whilst other actually existing desires, passions and interests are removed from the terrain of legitimate economic enquiry. as picchio points out: while the concept of social reproduction and subsistence could easily embody an idea of equality, solidarity and collective cooperation for survival...competition of large numbers of workers for access to a limited wage fund implies destructive struggles within the labouring population... this new analytical method expressed a new view of the world. a broad historical and social analysis was replaced by a simplistic mechanical framework in which specific historical processes were homogenised by universal laws, and social conflicts were mystified by theories of technical and natural constraints (1992: 53). by making the historical relationship between production and reproduction explicit, picchio’s work has aimed to show how the functional link between waged work and housework becomes a general concern rather than being a woman’s issue. she acknowledges that women ‘are deeply divided by differences of class, nationality, and race as well as by their own individual histories’ (1992: 114). this is a point that feminists who consider race as a constitutive aspect of their gender analysis have made and continue to make, pointing for instance to the radically different experiences of black women with both paid and unpaid labour (see hill collins, 2000; bhandar, 2013).[footnoteref:6] picchio’s work is cognisant of the fact that the socio-economic system classical political economists took for granted was based and is still based on racial, gender and class divisions. however, and this has been her project for quite some time, she believes that ‘a focus on the specific question of reproduction might well facilitate new alliances...’ (1992: 114). this is still, i think, a question worth asking: can a focus on reproduction, the wage and alternative valorisation processes be of any analytical import today as well as facilitate new political alliances that do not end up universalising the category of ‘woman’? [6: as bhandar has recently put it, ‘the word “woman” is used as though it applies to all women when it actually represents and signifies the experiences and histories of white women. this means that the experiences of black women, asian women (and, in other contexts, indigenous women) are erased or suppressed by the theories and politics of left feminisms. it means that the analyses of political problems that are being presented are partial and incorrect – because (as we know), capitalism has been forged through colonial dispossession, the atlantic slave-trade, and now, a globalised form of capitalism that depends on third world labour whose value remains fixed – to some degree – by racism and a persistent belief in white superiority’ (2013: 4). ] now, it is certainly the case that the both the sexual division of labour and the centrality of wage labour can no longer be presumed; and that we need to carefully trace the various gender, racial and class articulations that make up the social reproductive sphere as well as those that generate value, some of which may present novel analytical and political challenges (see adkins, 2009; arvidsson, 2012). however, this does not mean that the separation between production and reproduction under capitalism has become redundant. on the contrary, i think the task of recombining or bringing together the two acquires particular relevance today given the attack on social reproduction that is taking place through its further privatisation. to be sure, the constant attempt to re-draw the boundaries between the two spheres takes places differently in different parts of the world. in europe, the trend towards privatisation had certainly started before austerity, with social reproductive activities increasingly provided in the market by profit-making entities alongside unpaid labourers in the household or the community. this trend is, however, exacerbated under conditions of austerity that see some parts of the population (those whose wages have been withdrawn or squeezed) having to provide more unpaid labour while others (those whose wealth is increasing) can afford to purchase more social reproductive labour. the feminist political economic work i have been referring to can help us think of this separation as historical rather than natural; of current value-making processes (that is, how we produce, what we produce, how we distribute) as contingent and therefore contestable; and of alternative valorisations as processes which have always existed and continue to exist alongside those privileged by a certain social enquiry (for instance competition) and which can be brought to bear on the ways we organise our living together (see in particular the work of gibson-graham, 1996). the question is how we start this process of rendering visible and/or engendering alternative valorisations and in this respect i wonder whether we should read this body of feminist autonomists’ work as warning us against current attempts to engage the state through macroeconomic proposals such the elr. as wendy brown put it a while ago, there is a tension between acknowledging on the one hand that the state is not a monolithic entity but a web of social powers and on the other thinking we can shape it through our intentions and actions (brown, 1995). brown was critical of positions which maintained the radical potential inherent in women’s involvement with the state because these presuppose a transcendental subject who simply moves from isolated to collectivised conditions as opposed to a subject who is produced by these respective conditions: as she puts it ‘[t]his is because the state does not simply address private needs or issues but also configures, administers and actively produces them’ (1995: 195). now she was writing at a particular point in time in the history of the feminist movement in the us, when the faith in engaging with the state was at its highest. however her argument takes me back to the question of how to view such a macroeconomic program. the fact that it remains an institution of wage labour is perhaps enough to guard us against engaging with such an intervention. yet, i wonder whether thinking that the effect of an engagement at this level can only be the production of more disciplined workers does not assume the same transcendental subject brown identifies in uncritical discourses supportive of women’s engagement with the state. my point is that unless we assume we exist outside the capitalist relations that make us, then we need to take seriously the complexity of a process which, although initially based on wage labour, also presents the opportunity to affect the concept of ‘work’ and productive activity. how so? back to the wage? i think the potential for transformation has to be considered in relation to the changes in the system of (capitalist) valuation the program might instil over time. this is because whereas the profit motive is behind most economic activities, and it is certainly the force behind private investment, the design of elr jobs allows in principle for considerations other than the pursuit of profit. this process therefore introduces a system of remuneration other than pecuniary evaluation, which is particularly important in, but not limited to, the context of care activities, many of which (certainly not all) are not subject to the profit motive and often remain performed in individual households as firms do not find investing in such activities profitable. the most evident instance is the provision of childcare services affordable to all income groups but this is by no means the only case. the point is that, as a result of including them under the elr program, these investment decisions are lifted from the exclusive realm of pecuniary valuation that currently limits employment and output. now, it is true that this relocation concerns jobs which would have not been otherwise offered by the private sector. the reason for this requirement is that the nature of the program is one of cooperation rather than competition with the private sector, and, therefore, elr jobs are not supposed to displace private sector employment. however, as feminist economists have pointed out, jobs could be designed in a way that applies to a vast and crucial array of activities that are now performed in an individualised manner or to new activities worth investing in, where worth is assessed in terms of their contribution to the sustenance and enhancement of life. and if private firms wished to provide them, they would need to offer more affordable services and/or better pay conditions, introducing values other than profit maximisation. thus, despite the fact that the program is based on a very contested premise, it opens up the possibility for other forms of valuation of economic activity, and thus for other meanings of work, to emerge. this possibility is i think the program’s radical potential: without the threat of exclusion from subsistence on which the wage society has relied for so long and with meaningful and effective participation in the job design of the program, which is one of its crucial challenges, the way in which we conceive of ‘work’, which includes caring labour, can be radically affected. in place of the old ‘work as worth’ ideology which has permeated both the welfare state and neo-liberal welfare-to-work initiatives, we can start a discussion on how to organise the activities we value in life, which is the most valuable contribution that the social provisioning approach to economics has made so far. in this discussion the meaning of care and caring labour can be re-articulated, delinked from the house, the family, the mother and possibly the woman. this i believe is one of the crucial differences with the citizenship income movement, for which income needs to be de-coupled from wage labour. gorz, one of its major proponents, argued that efforts should concentrate on ‘distributing all the socially necessary work and [also] socially produced wealth’ so that ‘people will be able to divide their lives between a wide range of activities which will have neither payment nor profitability as their necessary condition or goal’ (1999: 46). a similar argument has been made more recently by kathi weeks (2011) who also draws on the wages for housework campaign and presents citizenship income as its successor. the latter has for her the advantage of doing away with the productivist logic wages for housework unintentionally produced by focusing too much on ‘work’. however, although they both point to the need for a political break, it is not really clear how this is to come about besides demanding that the state grants a citizenship income for the productive labour we are all engaged with. although i sympathise with their attempt to move beyond the work ideology, i think their position leaves a whole set of important questions about this process unanswered, for instance about the nature of our interaction with the state on which we place the demand for a citizenship income; the parameters informing the (re)valuation of the different forms of labour we engage with and/or wish to foster; and the means through which the massive indigent population can effectively participate in redefining ‘work’. the elr, on the other hand, does not introduce a political break overnight. however, its potential lies in providing the opportunity to get a socially desirable wage immediately that enables participation in exactly such a complex process. to conclude, rather than seeing these two modes of feminist engagement in opposition to one another, i want to suggest it makes more sense to focus on what is at stake for both, that is on the attempt to think of alternative processes of (non-capitalist) valorisation as well as the arrangements, institutional and otherwise, which might be able to sustain them. now one obvious objection to the elr program in particular is that insisting on the wage at a time when the role wage labour plays in productive processes is declining is anachronistic. i take this argument seriously. the first point i would like to make is that wage labour has only ever been a crucial form of labour in some parts of the world and even in fordist economies it has not been the only one. however the powerful role the wage played in disciplining fordist societies by making people’s own sense of worth and subsistence conditions dependant on whether they had access to work cannot be underestimated. has this role ceased to exist? this is my second point and one which i think is worth including in our future research agenda. the role of the wage in providing access to the means of subsistence has certainly declined in post-fordist economies (and even here we need to do serious empirical and conceptual work on how im/material production is being re-organised around the world). but what about its disciplinary role? can we dismiss it at a time when ever more individual and societal ‘worth’ is produced through the narrative/ideology of work? can we dismiss its political charge? i would like to suggest that at a time when the work ideology is so powerful, forms of engagement with the wage such as the elr program can have power as a provocation. to be sure, i do not consider such a program as a solution, permanent or otherwise, by any means. rather, borrowing from weeks’ work on the wages for housework campaign, i consider it as both a perspective and a provocation. as a perspective, she points out, ‘wages for housework served to create critical distance from the dominant discourse of work and family; it was an attempt to demystify domestic labour, while simultaneously insisting on its necessity; and its potential lay [exactly] in the ability to open up the wage relation to a new kind of scrutiny by politicising estimations of skills and determination of value’ (2011: 129) and such scrutiny i think is what programs like the elr might enable. unlike a description (à la smith and ricardo), a perspective focuses on the wage to demystify its role, that is, to show how it operates by making people dependent on it for their survival whilst simultaneously denying access to it; and to re-open the conflict between the labouring population and its means of reproduction which the wage is supposed to mediate. as a provocation, weeks continues, wages for housework: served to elicit the subversive commitments, collective formations and political hopes that it appeared only to reflect...[as such, a provocation] should be understood as an attempted claim and incitement of antagonism, collective power and desire. indeed, neither the policy proposal, with its aura of neutrality, nor the plea, with its solicitousness, manages to capture the...belligerence with which the demand is presented’ (2011: 131-132). in its performative dimension, therefore, the elr might enable us to demand of the current system what the system promises and very likely cannot deliver. in the process it might even allow us to re-open the conflict which we have kept hidden through notions of scarcity and economic imperatives as well as to call into question the way we collectively organise our social provisioning, this time beyond mediation and calculation. here is how cox and federici talked about the power of provocations in the 1970s: as for the financial aspects of wages for housework, they are ‘highly problematical’... only if we take the viewpoint of capital – the view point of the treasury department – which always claims poverty when it is replying to the working class. since we are not the treasury department and have no aspiration to be, we cannot see with their eyes, and we did not even conceive of planning for them systems of payment, wage differentials, productivity deals. it is not for us to put limits on our power, it is not for us to measure our value. it is only for us to organise a struggle to get all we want, for us all, and on our terms. for our aim is to be priceless, to price ourselves out of the market... (cox and federici, 1976: 14 in weeks, 2011: 132) can we think of the state and the wage provocatively again? references adkins, lisa. 2009. ‘feminism after measure’. feminist theory 10(3) 323-339. alessandrini, donatella. 2011. ‘immaterial labour and alternative valorisation processes in italian feminist debates: (re)exploring the “commons” of re-production’. feminists@law 1(2), 1-28. 2013. ‘a social provisioning employer of last resort: post-keynesianism meets feminist economics’. world review of political economy 4(2), 230-54. arvidsson, adam. 2012. ‘general sentiment: how value and affect converge in the information economy’. the sociological review 59, 39–59. antonopoulos, rania. 2007. ‘the right to a job, the right types of projects: employment guarantee policies from a gender perspective’. levy economics institute, working paper 516. bhandar, brenna. 2013. ‘race, gender and class: some reflections on left feminist politics and organising’. feminists@law 3(1). brown, wendy. 1995. states of injury: power and freedom in late modernity. princeton: princeton university press. cox, nicole, and silvia federici. 1976. counter-planning from the kitchen: wages for housework, a perspective on capital and the left. brooklyn: new york wages for housework committee. dalla costa, mariarosa. 1972. ‘quartiere, scuola e fabbrica dal punto di vista della donna’ l’offensiva: quaderni di lotta femminista 1, 23-34. 2002. ‘the door to the garden: feminism and operaismo’. paper presented at the operaismo a convegno conference, june 1–2, rome. available at http://libcom.org/library/the-door-to-the-garden-feminism-and-operaismo-mariarosa-dalla-costa. accessed on 26 october 2013. dalla costa, mariarosa, and selma james. 1972. the power of women and the subversion of the community. bristol: falling wall. elson, diane. 1979. ‘the value theory of labour’, in diane elson (ed.) value: the representation of labour in capitalism. london: cse books. federici, silvia. 2004. caliban and the witch: women, the body and primitive accumulation. new york: automedia. 2008. ‘precarious labour: a feminist perspective’. the journal of aesthetics and protest 1, 9. fortunati, leopoldina. [1981] 1995. the arcane of reproduction: housework, prostitution, labor and capital, trans. h. creek, j. fleming (ed.). new york: autonomedia. 2007. ‘immaterial labour and its machinization’. ephemera: theory and politics in organisation 7(1), 139-157. fudge, judy. 2011. ‘labour as a “fictive commodity”: radically reconceptualising labour law’, in guy davidov and brian langville (eds) the idea of labour law. oxford: oxford university press. gibson-graham, julie-katherine. 1996. the end of capitalism (as we knew it): a feminist critique of political economy. oxford: blackwell. gorz, andre. 1999. reclaiming work: beyond the wage based society. cambridge: polity press. hill collins, patricia. 2000. black feminist thought: knowledge, consciousness and the politics of the women’s movement. new york: routledge. himmelweit, susan. 2013. ‘feminist economic theory and policy challenge’. journal of gender studies ochanomizu university 16, 1–18. kaboub, fadhel. 2007. ‘employment guarantee programs: a survey of theories and policy experiences’. levy economics institute, working paper no. 498. minsky, hyman. 1986. stabilizing an unstable economy. new haven, ct: yale university press. picchio, antonella. 1992. social reproduction: the political economy of the labor market. cambridge: cambridge university press. 2009. ‘condiciones de vida: perpsectiva, analysis economico y politicas publica’. revista de economia critica 7, 27–54. power, marilyn. 2004. ‘social provisioning as a starting point for feminist economics’. feminist economics 10(3), 3–21. rai, shirin, catherine hoskyns and dania thomas. 2010. ‘depletion and social reproduction’. centre for the study of globalisation and regionalisation, university of warwick, working paper 274/11. tarde, gabriel. 1902. psychologie economique. paris: f. alcan. todorova, zdravka. 2009. ‘employer of last resort policy and feminist economics: social provisioning and socialization of investment’. mpra paper 16240, university library of munich, germany. tong, rosemarie. 1998. feminist thought: a more comprehensive introduction. boulder, co: westview press. weeks, kathi. 2011. the problem with work: feminism, marxism, antiwork politics and postwork imaginaries. durham, nc: duke university press. wray, randall. 1998. understanding modern money: the key to full employment and price stability. northampton, ma: edward elgar publishing. __________________________________________________________________________________ __________________________________________________________________________________ san roque book discussion: murder, medicine and motherhood ___________________________________________________________________________ feminists@law vol 3, no 2 (2013) ___________________________________________________________________________ ‘a woman like you’: gender, uncertainty and expert opinion evidence in the contemporary criminal trial mehera san roque[footnoteref:1]* [1: * senior lecturer, school of law, university of new south wales, australia. m.sanroque@unsw.edu.au. with thanks to the other participants on the panel, eve darian-smith, gary edmond, bill haltom and karen porter, and most especially emma cunliffe, for discussion, ideas and comments. thanks also to rosemary hunter and pooja parmar. all errors, speculations and long bows, remain, of course, my own. ] emma cunliffe begins her account of the kathleen folbigg case, in murder, medicine and motherhood, [footnoteref:2] with a quote from patricia williams: “that life is complicated is a fact of great analytical importance. law often seeks to avoid this truth by making up its own breed of narrower, simpler, but hypnotically powerful rhetorical truths.”[footnoteref:3] williams calls on us to recognise, and challenge, these ways in which law occludes necessary complexity, and how closing down on complexity does damage to justice. further, she argues, such challenges can reframe, rework—perhaps reclaim—law’s own narratives and rhetorical devices. so in my contribution to this conversation about law, women’s lives and justice, i want to highlight the ways in which emma’s book takes up williams’ call; offering a challenge and a reworking, and perhaps also a reclaiming of some of the criminal justice system’s most powerful rhetorical narratives. and at the same time, recognising, as williams does, that sometimes there is utility in conventional categorisations, as long as one is attentive to the ‘rhetorical event’, and do not mistake such categories as representing an objective truth. [2: emma cunliffe, murder, medicine and motherhood (hart publishing, 2011) 1. ] [3: citing patricia j williams, “the brass ring and the deep blue sea” in the alchemy of race and rights (harvard university press, 1991). see also carol smart, feminism and the power of law (routledge, 1989).] in this review i address three aspects of the folbigg case, as they are analysed in murder, medicine and motherhood, aspects that are, inevitably, related, complicated, and so defy neat packaging into sequential order. at the core of emma’s book is her analysis of the gendered narratives of idealised, normative motherhood that were put to work so successfully both in the crown case against folbigg and in the media coverage of her case. so my starting point in this review was to consider the different levels at which these narratives registered—their significance in terms of the overall framing of folbigg’s guilt, but also the ways in which the crown’s striking, though not always consistent, appeal to these normative values underpinned the particularly troubling use of the rules of admissibility that allowed the court and the jury to consider in one trial, the multiple deaths of her children.[footnoteref:4] in particular, the ways in which the court accepted that facts that were, primarily, expressions of her role as primary carer were also probative of her guilt. but further, because of the heavy reliance on expert evidence in the case against folbigg, and as has been made explicit in recent coverage of the case, there are other connections—in particular there are aspects of the emerging crisis in the forensic sciences that can be mapped onto this case.[footnoteref:5] presciently, murder, medicine and motherhood offers ways for us to think thorough the particular medico-legal complex that has arisen around unexplained infant death, and in doing so offers principles that could be usefully applied in other contexts. and so this review engages also with the responsibilities of courts when faced with uncertain or conflicting expert testimony of the kind that was presented in folbigg’s case, and more broadly the failure or inadequacy of current admissibility standards and conventional trial safeguards when it comes to adequately managing the expert evidence in this and other recent cases.[footnoteref:6] [4: in new south wales, the admission of this evidence was governed by the notionally exclusionary ‘tendency’ and ‘coincidence’ rules found in ss 97, 98 and 101 of the evidence act 1995 (nsw). the evidence act 1995 (nsw) forms part of australia’s uniform evidence law; uniform evidence law jurisdictions in australia comprise new south wales, the commonwealth and act, victoria, nt and norfolk island. sections of the evidence act 1995 (nsw), including s 98 were amended in 2009 by the evidence amendment act 2007 (nsw). at the time of folbigg’s trial, s 98 required that the evidence have “significant probative value” before a fact finder could reason that “because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind.” in addition, s 101 prohibits the prosecution from relying on either tendency or coincidence evidence “unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.” at the time of folbigg’s trial, s 101 was interpreted, in line with pre-existing common law authority, to require a determination by the trial judge that there be no rational explanation of the evidence consistent with innocence before the evidence could be admitted for the purpose of grounding either coincidence or tendency reasoning (the so called pfennig test). in folbigg, this was held to mean that the court should first assume that the other evidence left the jury with a reasonable doubt, and then consider whether the ‘coincidence’ evidence would eliminate that doubt, and that it would only be in such circumstances that it could be admitted for that purpose. arguably, hodgson j’s somewhat idiosyncratic articulation of the operation of the pfennig test, in the string of related cases, wrc [2002] nswcca 210, joiner [2002] nswcca 354 and folbigg, for its circularity alone, does not represent a high point in terms of threshold management. nonetheless, at least in theory, the evidence in folbigg was subjected to one of the most stringent tests of admissibility both at the stage of deciding whether all of the cases could be heard together and in the trial itself. the 2009 reforms, in combination with more recent jurisprudence have, arguably, lowered the thresholds embodied in ss 98 and 101, but not made the test(s) any easier to understand or apply; the case law in this area remains highly unstable. historically, tendency and coincidence evidence has been referred to as propensity and/or similar fact evidence. the first significant new south wales case in this area was makin v attorney general of new south wales [1894] ac 57, a ‘baby farming’ case. the makins were convicted of the murder of an infant that had been committed to their care. at issue was the admissibility and significance of the evidence that multiple bodies of infants had been found buried in the backyards of a number of houses that had been occupied by the makins. see anne cossins, the baby-farmers (allen & unwin, 2013). ] [5: recent reports of the national academy of sciences in the us, as well the uk, have drawn attention to significant methodological and epistemological deficiencies inherent in the majority of comparative forensic ‘sciences’ that are routinely relied on in courts. these include, but are not limited to, little or no independent information about the validity or reliability of the majority of techniques and no testing of the accuracy of conclusions and opinions proffered by forensic ‘experts’, particularly in the comparison fields. see strengthening forensic science in the united states: a path forward (national research council, national academy of sciences, 2009); report of the expert working group on human factors in latent print analysis: latent print examination and human factors: improving the practice through a systems approach (national institute of standards and technology, national institute of justice (usa), february 2012); the fingerprint inquiry report ‘lord campbell’s report’ (the fingerprint inquiry (scotland), 14 december 2011, http://www.thefingerprintinquiryscotland.org.uk/inquiry/3127-2.html, accessed 13 march 2013) and the report of the goudge inquiry: report of the inquiry into pediatric forensic pathology in ontario (queens printer, 2008). for discussion, see, for example: paul c. giannelli, “the 2009 nas forensic science report: a literature review” (2012) 48 criminal law bulletin 378; gary edmond, “is reliability sufficient? the law commission and expert evidence in international and interdisciplinary perspective” (2012) 16 international journal of evidence & proof 30; gary edmond and kent roach, “a contextual approach to the admissibility of the state's forensic science and medical evidence” (2011) 61 university of toronto law journal 343; and simon cole, “who speaks for science? a response to the national academy of sciences’ report on forensic science” (2010) 9(1) law, probability and risk 25. a striking feature of recent australian cases, even those that have rejected the admissibility of the comparison evidence proffered by the crown such morgan v the queen [2011] nswcca 257, or the cases discussed below that have overturned convictions based on flawed expert testimony, is the lack of reference to contemporary research and reports. compare the us experience where the report was at least cited within three months of its publication: see giannelli, above. see also stuart washington, “tainted evidence in the dock”, the sydney morning herald news review (online), 17 december 2011 (http://www.smh.com.au/nsw/tainted-evidence-science-in-the-dock-20111216-1oyn7.html, accessed 23 march 2013) and stuart washington, “appeals spark concern over use of scientific evidence”, the sydney morning herald (online), 17 december 2011 (http://www.smh.com.au/technology/sci-tech/appeals-spark-concern-over-use-of-scientific-evidence-20111216-1oyjb.html, accessed 23 march 2013).] [6: while these recent cases, particularly in new south wales, have thrown into sharp relief problems with the forensic sciences more broadly, the most high profile australian miscarriage of justice that sits ever present in the background is the chamberlain case, a conviction based on, among other things, suspect and flawed expert evidence and accompanied by media/popular narratives that judged chamberlain’s behaviour to be inconsistent with innocence. notable in this case was the failure of subsequent appellate review, with the high court confirming chamberlain’s conviction, despite being aware of the shortcomings in the expert evidence. on chamberlain, see, deborah staines, michelle arrow and katherine biber (eds), the chamberlain case: nation, law, memory (australian scholarly publishing, 2009).] murder, medicine and motherhood provides a detailed and nuanced analysis of the ways in which the crown and the defence cases were respectively enabled and constrained by normative ideals of motherhood. ideals that the folbigg case showed to be extraordinarily, even unexpectedly, persistent and powerful. in particular the difficulties faced by the defence in trying to counter the prejudicial effects that flowed from the complex expectations attached to (good) mothering, refracted through the figure of folbigg as the failed mother. murder, medicine and motherhood makes the case that the deployment of these narratives, in combination with the expert evidence, was critical to the success of the crown’s case, and the failure of each appeal. and as other cases in comparable jurisdictions have been revisited and convictions overturned, the lingering effects of the crown’s account of folbigg’s suspect, failed mothering, continues to set her case apart.[footnoteref:7] [7: this is taking into account that the most obvious element of the case against folbigg, relied on both to ground her conviction, and to distinguish her conviction from other comparable cases, was the dependence on her diaries, containing passages that were interpreted as incriminating admissions. this allowed the courts to side-step questions about the medical evidence as well as the full implications of the decisions in other jurisdictions quashing the convictions of mothers who had been initially convicted of the murder of their children, the most significant being r v cannings [2004] ewca crim 1 and r v clarke [2003] ewca crim1020. this is clear in all of the decisions relating to her case, including the 2005 appellate decision that upheld her conviction, and in the hearing in the high court when her application for special leave was refused. briefing advice in 2004 (from the criminal law review division, presumably for the nsw attorney general) also emphasised the significance of the diaries when offering a reassurance that the emerging scandal concerning the wrongful convictions of sally clarke and angela cannings would not affect the case against folbigg. while superficially the diaries appeared as independent evidence of guilt, as emma’s account makes clear, this incriminating reading of the diaries does not sit in isolation from the gendered narratives and norms brought to bear on folbigg, and in many respects is dependent on them. further, it is not clear when the content of the diaries may also have been available to the experts who ultimately concluded that the folbigg children could not have died of natural causes, though clearly by the time the case came to trial they would have been aware of the more adverse and damaging passages.] in discussing why emma’s analysis of the case is so compelling, i want to also draw some connections between the narratives that were allowed to run in folbigg and some other recent australian cases. the most direct comparisons can be drawn between folbigg’s trial and the trial of keli lane, who was convicted, in 2010, of the murder of her newborn baby tegan, born in 1995.[footnoteref:8] lane bears closer analysis in relation to folbigg, not only because she too was convicted of killing her child, but also because, like folbigg, she was prosecuted by perhaps new south wales’ most successful crown prosecutor, mark tedeschi. in comparing the two cases, there are some striking similarities in the narratives deployed against folbigg and those deployed against lane. but there are two other significant cases that can be drawn in for comparison. the first is the long running case of gordon wood, who was convicted in 2008, of the murder of his girlfriend caroline byrne who died in 1995, only to be acquitted in 2012.[footnoteref:9] the second is the equally long running case of jeffrey gilham, who was convicted in 2009 of the 1993 murder of his parents, and also acquitted in 2012.[footnoteref:10] these two cases speak to the related, but also broader question of how courts manage (or fail to manage) incriminating expert evidence, and, like folbigg, speak to the failures of the adversarial trial and safeguards to adequately manage the expert evidence in the case, and in particular the failure of the ‘safeguard’ that is prosecutorial restraint—prosecutorial obligations of fairness that are a prominent feature of the rhetoric underpinning the conduct of criminal trials in australia.[footnoteref:11] [8: r v keli lane [2011] nswsc 289. lane lodged her appeal in april 2011. it was heard by the new south wales court of criminal appeal on 23 july 2013. lane’s application for bail was refused by justice hoeben on 28 february 2013: keli lane v r [2013] nswsc 146. .] [9: wood v r [2012] nswcca 21. byrne’s death was initially assumed to be suicide—her body was found at the base of cliffs at the gap, a coastal area in sydney that is an infamous suicide spot. see, for example, katrina clifford and glenn mitchell, “‘the killer point’: contemporary reconfigurations of the gap as crime scene” (2009) 13 law text culture 80. sustained pressure from byrne’s family, combined with the emergence of apparently independent expert evidence that indicated that the location of her body precluded a suicide jump, and instead indicated that she had been thrown from the cliff, led to wood being extradited from the united kingdom to face trial. wood’s first trial was aborted after it was discovered that members of the jury had independently visited the gap. ] [10: gilham v r [2012] nswcca 131. the facts in gilham are equally extraordinary. jeffrey gilham’s account was that his parents had been stabbed by his older brother, christopher, and that he, jeffrey, had come upon christopher in the act of attempting to light a fire over the body of his mother. jeffrey’s account was that he had picked up the same knife and pursued and killed his brother, before raising the alarm. gilham pleaded guilty to the manslaughter of his brother, arguing provocation, and this plea was accepted. much later, following a sustained campaign by gilham’s uncle, jeffrey gilham was charged with the murder of his parents—the crown case being that he had in fact killed all three members of his family. the necessary corollary of this case theory was that gilham had deliberately set fire to the family home in order to conceal the murders, and further that he had concocted evidence that christopher was unstable, and resentful of both his parents and his brother, as part of an elaborate, premeditated cover up. for an overview of the legal issues in these two cases see gary edmond, david hamer, and andrew ligertwood, “expert evidence after morgan, wood and gilham” (2012) 112 precedent 28.] [11: see, for example, gary edmond and mehera san roque, “the cool crucible: forensic science and the frailty of the criminal trial” (2012) 24(1) current issues in criminal justice 51. the recent ahrc inquiry into the use of discredited techniques for age determination is also worth noting here: an age of uncertainty: inquiry into the treatment of individuals suspected of people smuggling offences who say they are children (australian human rights commission, 2012). see also the reopening of the case against david eastman, convicted in 1995 of the murder of a senior police officer, in part because of fresh concerns relating to the expert evidence proffered at the trial. see louis andrews, “eastman gets his new day in court”, the canberra times, 11 august 2012, 1, 4 and b1.] these other recent appellate decisions are worth noting in part also because of the involvement of mark tedeschi in the prosecutions. gordon wood, like folbigg, was prosecuted by tedeschi. the issues that gave rise to the successful appeal were numerous and complex; critically they included the reliance on inadequate and erroneous expert evidence to support the crown case.[footnoteref:12] but arguably, at the heart of the appeal was the conduct of the prosecution, the unsupported and speculative (and sometimes conflicting) narratives spun out of the circumstantial case against wood. as mcclellan cj wrote in the appeal, “[t]he difficulties which the prosecutor's conduct created are so significant that i am satisfied it caused the trial to miscarry occasioning a miscarriage of justice.”[footnoteref:13] [12: the appellate court was highly critical of the expert evidence presented by associate professor rod cross that underpinned the crown case that byrne had been thrown from the cliff. in particular, what emerged on appeal was not only the weaknesses in the evidence itself, but also the fact that cross had inserted himself into the investigation, and prosecution, of the case in a way that overstepped the boundaries of expert impartiality and by implication breached the expert code of conduct: see wood, above n 8, [715] ff. despite this, the appeal court appears to have accepted that neither the breach nor the apparent weaknesses rendered his evidence inadmissible. a video that includes an interview with cross and footage of one of the experiments—male police officers throwing (compliant) female officers into a swimming pool—can be viewed at http://www.smh.com.au/nsw/trial-expert-stands-firm-as-judge-questions-impartiality-20120225-1tv48.html (accessed 29 march 2013). in gilham, the crown likewise relied on speculative experiments conducted by a fire examiner, presented to the jury by way of a dvd of a ‘reconstruction’ that bore little resemblance to the actual conditions of the fire that had been lit on the night of the gilhams’ deaths. in this instance the appellate court held that the expert’s evidence and the dvd of the ‘reconstruction’ ought to have been excluded (under s 137 of the uniform evidence law)—the probative value of the experiments being so slight as to be misleading and thus unfairly prejudicial to the accused: gilham, above n 9, [179].] [13: wood, above n 8, [604].] gilham’s case similarly raised questions about prosecutorial conduct, in combination with a reliance on equivocal expert evidence. tedeschi prosecuted gilham’s first trial, which ended in a hung jury, and it is certainly arguable that the crown case, as run in the second trial by margaret cunneen, was built on the foundations laid by tedeschi.[footnoteref:14] one of the striking aspects of this case, that maps back to folbigg, was the manner in which the crown prosecutor was able to draw inferences from the expert evidence far beyond those which it was capable of bearing, but presented these to the jury as legitimate, available, almost inevitable conclusions. in particular, in gilham, the prosecutor was allowed to make repeated reference to the conclusions that could be drawn from the pattern of stab wounds present in all three bodies; in characterising the matter as one of common sense, the crown invited the jury to conclude that it defied belief that more than one person was responsible, such was the similarity of the pattern and number of stab wounds.[footnoteref:15] this was despite the fact that a number of the expert witnesses in the trial had disavowed such conclusions and had been explicitly prevented from giving evidence along these lines.[footnoteref:16] this was compounded by the crown’s failure to call, as part of its case, professor cordner who of all the experts was the most unequivocal in emphasising that it was not possible to draw meaningful conclusions from the pattern and number of wounds.[footnoteref:17] further weaknesses in the expert evidence relied on in gilham’s prosecution emerged after the trial, with one of the witnesses, whose evidence had been crucial in establishing the sequence of events, and in particular the sequence of death(s), admitting in the appeal hearing in 2011 that they had exceeded their expertise when they had given this incriminating evidence in the trial.[footnoteref:18] in all of these cases attempts by the trial judge, and defence, to maintain control of the presentation of the evidence were ineffective, or, worse, generated misunderstandings.[footnoteref:19] [14: see gilham, above n 9, [107] and paul bibby, “scientific evidence flaws highlighted”, the sydney morning herald (online), 27 june 2012 (www.smh.com.au/nsw/scientific-evidence-flaws-highlighted-20120626-210my.html, accessed 11 march 2013).] [15: gilham, above n 9, [348].] [16: the appeal court characterised the crown’s conduct, in this respect, as an egregious departure from the limits set by the trial judge and in fact that the evidence was inadmissible for that purpose. a notable aspect of the trial was that at no point did the court engage with the coincidence (or tendency) rules that, given the conclusions that the jury was being invited to draw, ought to have operated to manage the admissibility of the evidence: gilham, above n 9, [288], [327] ff, [348]-[350]. the appeal court also noted that the defence failed to object (or identify) that the crown’s case relied on coincidence reasoning: gilham, above n 9, [325].] [17: gilham, above n 9, [383] ff. this had the curious effect of limiting the manner in which the defence could respond; the limits placed on the prosecution experts produced the appearance of a conservative or cautious approach, but in operation hampered the defence attempts to proffer rebuttal evidence disputing the (apparent) significance of the injuries found on all three members of the gilham family. on a related point, see simon cole, “splitting hairs? evaluating 'split testimony' as an approach to the problem of forensic expert evidence” (2011) 33(3) sydney law review 459 and gary edmond et al., “atkins v the emperor: the ‘cautious’ use of unreliable ‘expert’ opinion” (2010) 14(2) international journal of evidence and proof 146.] [18: gilham, above n 9, [621]. the emergence of this concession during the appeal hearing, apparently unanticipated by both the prosecution and the defence, marked a turning point in the appeal. gilham, unlike wood, was present at the hearing, and was released on bail immediately, at the conclusion of the appeal hearing, with the court indicating that he was entitled, at the very least, to a retrial: see, for example, paul bibby, “gilham's champagne moment: free to celebrate after murder conviction quashed”, the sydney morning herald (online), 2 december 2011 (http://www.smh.com.au/nsw/gilhams-champagne-moment-free-to-celebrate-after-murder-conviction-quashed-20111202-1o9wb.html, accessed 11 march 2013).] [19: in appearing to accept that there was no empirical basis that would allow an expert to conclude that the wounds were inflicted by the same person, and thus preventing the experts from testifying as to whether, or not, the patterns and number of wounds could be seen as significant in this way, the trial judge none the less emphasised that it was open to the jury to determine whether the apparent similarity was significant: gilham, above n 9, [298]. the conceptual confusion is perhaps a striking example of the lack of clarity as to the role, relevance and function of expert opinion. it also bears a family resemblance to the conceptual confusion attending the admission of the expert opinions in cases such as folbigg, and the trials of clarke and canning, where the opinions of the experts were founded on a form of concealed or occluded coincidence reasoning (see discussion below n 32).] so, all of these more recent cases bear some comparison to folbigg, if one is thinking about the problems raised by the expert evidence. but turning back to lane, the case that bears the closest relationship in terms of the narratives of ideal(ised) or normative motherhood, i wanted to start with an image. in this double page spread from the popular weekly magazine, woman’s day, we have the headline “baby killer mums”.[footnoteref:20] in contrast to emma’s careful, systematic and illuminating analysis of the media coverage of folbigg’s case—that manages to combine a discourse analysis of the representation of folbigg herself, with an account of the imbalance between the reporting of the prosecution and defence narratives—i am relying on this one image to set the tone. i am using it here not to point to the simplistic popular media coverage endemic to these cases, but because it sets folbigg alongside three other recent australian cases where women have been convicted of the murder of their child, one of whom is keli lane. [20: this article by matthew benns, “this prison houses our worst baby killer mums”, appeared in the woman’s day in the first half of 2012 (image provided 5 june 2012).] the case against lane was entirely speculative and circumstantial. she had fallen pregnant in 1996, giving birth to tegan on 12 september 1996. lane had successfully concealed the pregnancy from family and friends, including, according to the evidence, her then partner.[footnoteref:21] lane had previously carried a child to term in 1995, a girl who had been adopted out, and two previous pregnancies had ended in terminations.[footnoteref:22] in 1999, lane had a third child, a boy, who was also adopted out. with the exception of the first pregnancy and termination, which was known (only) to her then boyfriend, all of these other pregnancies had, apparently, been successfully concealed from family and friends.[footnoteref:23] in the case of baby tegan, the defence case was that lane had handed the baby over to the (initially unnamed) natural father. there was no body, no admission, and no direct evidence. the circumstantial evidence supporting the case was primarily negative, including the inferences to be drawn from the failure to locate the surviving child or man that lane had claimed was the father of tegan. which is to say that, in addition to the reliance on hegemonic gendered narratives, the crown case was strongly dependent on what was argued to be the sheer implausibility of her account. this appeal to (im)plausibility was implicated in the decision to allow the jury to draw some limited inferences from keli lane’s conduct, in particular, what were said to be lies.[footnoteref:24] perhaps even more than folbigg or wood, this was the case of tedeschi’s career, considered to be the impossible conviction. and it was a case that clearly troubled the trial judge. in the sentencing judgment, justice whealy of the new south wales supreme court, said, “whatever views i may have had about the strength of the crown case must take second place to the jury verdict.”[footnoteref:25] more recently, on his retirement, and in what has been widely regarded as a surprising and controversial move, justice whealy has spoken publicly about his unease at the outcome of the case.[footnoteref:26] [21: the crown case is summarised in r v lane [2011] nswcca 157, [43].] [22: tedeschi argued that lane murdered tegan because she was unwilling to go through either the distress (or inconvenience) of an adoption, or the trauma of a termination: see r v keli lane, above n 7, [81].] [23: perhaps most extraordinarily, lane had played in a competitive water polo match the day before giving birth to her first daughter, tahlia rose, on 19 march 1995: r v keli lane, above n 7, [5].] [24: in particular the jury was allowed to draw the inference that the lies were told because of a ‘consciousness of guilt’ and were thus directly probative of guilt, overruling the trial judge on this point. the nswcca pointed to fact that the defence case did not name the father and that the evidence that the jury could use to ground its conclusion that lane’s account of handing the baby to a man called andrew norris/morris (the putative natural father), was not ‘entirely co-extensive with the circumstantial case relied on to prove the murder’. see r v lane, above n 20, per simpson j, [62]. it seems as if, like the fact of the rarity of multiple infant deaths, this negative evidence that was the failure to find morris/norris (and therefore tegan), becomes ‘double counted’. see discussion in n 32 below.] [25: these remarks were reportedly made at the sentencing hearing: kim arlington, “tearful lane faces sentencing hearing”, the sydney morning herald (online) 11 march 2011 (http://www.smh.com.au/nsw/tearful-keli-lane-faces--sentencing-hearing-20110311-1bql7.html, accessed 24 march 2013). in his written sentencing reasons (above n 7) justice whealy is perhaps more circumspect, but reading between the lines it is evident that he is uneasy about elements of the crown case.] [26: deborah snow, “judge reveals his doubts over keli lane conviction”, the sydney morning herald (online), 24 november 2012 (http://www.smh.com.au/national/judge-reveals-his-doubts-over-keli-lane-conviction-20121123-29yut.html, accessed 24 march 2013). ] the four women discussed in this article also present, and represent, a range of different scenarios of failed or feckless motherhood. folbigg, concealing her murders behind the screen of multiple cot deaths, is perhaps the most reviled, whereas lane’s conduct places her into a different category, and most closely resembles the traditional picture of an infanticide. in contrast to both of these we have rachel pfitzner and the unnamed mother of ebony—both parents whose children had come to the attention of the overstretched child welfare apparatus (including the department of community services),[footnoteref:27] pfitzner’s case raising also the added complexities of race, involving as it did the death of an aboriginal boy caused by his white mother. it is perhaps worth noticing that with folbigg, the experts (and ultimately the courts) were dealing with what they saw as an exceptional case; it was the very rarity of the four deaths in one family that, in a sense and in the end, raised the alarm.[footnoteref:28] but alongside, running as a counterpoint to cases such as folbigg, there is that routine, heavily bureaucratised space of child protection, risk assessments, welfare interventions, family placements and child removals—the folk devils and moral panics of child welfare discourse that in australia provoked the northern territory intervention with its targeting of aboriginal parents and families[footnoteref:29]—that operates as an echo chamber for the apparently disruptive, exceptional, spectacular criminal case of maternal filicide. [27: seven year old ebony died as a result of long term deprivation and neglect. ebony’s parents were both tried, with her mother convicted of murder and her father of manslaughter: r v bw & sw (no 3) [2009] nswsc 1043 (2 october 2009). rachel pfitzner pleaded guilty to the murder of her two year old son, dean shillingsworth: r v pfitzner [2009] nswsc 1267. in both cases it was conceded that the department of community services had failed to adequately respond to reports about risks facing the children (and the families) involved. see the death of ebony: the need for an effective interagency response to children at risk (new south wales ombudsman, special report to parliament under section 31 of the ombudsman act 1974, october 2009) and the death of dean shillingsworth: critical challenges in the context of reforms to the child protection system (new south wales ombudsman, special report to parliament under section 31 of the ombudsman act 1974, december 2009). both cases were catalysts for the establishment of a special commission of inquiry into child protection services in nsw, headed by justice james wood ao qc.] [28: it was the death of folbigg’s fourth child, laura, which prompted a revisiting of the conclusions with respect to the prior children, whose deaths had initially been attributed to sids.] [29: an investigation into child abuse within indigenous communities culminated in the little children are sacred report that identified endemic and entrenched problems within indigenous communities and made a number of recommendations. the extent to which the recommendations have been implemented is contested, but the report was used as the trigger, by the then conservative government, for rapid deployment of inconsistent and punitive health, welfare and legal regimes across communities in the northern territory emergency response. see, more generally, john chesterman and heather douglas, “law on australia’s northern frontier: the fall and rise of race” (2009) 24(1) canadian journal of law and society 69.] and so, emma’s book speaks of folbigg’s case as providing us with what fitizpatrick calls a ‘telling instance’. that is to say we can read off the case, it allows us to see further, to see broader patterns—and in these telling moments, the case itself can function both as evidence and as authority, it is both reflective and generative. it is a case that can tell us about social expectations and constructions of motherhood (and indeed fatherhood) even as it reconstructs and reinforces them, and exposes particular vulnerabilities in the criminal justice system, compounding what might otherwise be an ordinary failure to manage the expert forensic evidence. related to this and more familiar to me is robert hariman’s conception of a ‘popular trial’ and also nancy fraser’s analysis of moments of what she terms ‘hyperpublicity’. for hariman a popular trial is a particular class of ‘persuasive event’, a social performance of the law that functions to create social knowledge, perhaps even, though not entirely in the old fashioned sense, ideologically.[footnoteref:30] for fraser, these moments are events that break our routine, provoke widespread attention, and consequently have, as she puts it, “great diagnostic value,” making visible the “structures of inequality and practices of power that deform public opinion making in ordinary times, less obtrusively but more systematically.”[footnoteref:31] [30: robert hariman, “performing the laws: popular trials and social knowledge” in robert hariman (ed), popular trials: rhetoric, mass media, and the law (university of alabama press, 1990). see also barry brummet, “mediating the laws: popular trials and the mass media” in the same volume. ] [31: nancy fraser, justice interruptus: critical reflections on the ‘postsocialist’ condition (routledge, 1997) 99. ] so folbigg can tell us much about the faith in and the failures of the adversarial criminal trial and forensic sciences, the structures and practices that function to impede public accountability mechanisms such as the criminal trial. and in this respect it is like other recent cases, such as wood and gilham. but taking fitzpatrick, hariman and fraser’s framing a little further, the folbigg case can be both aligned with, but also distinguished from, say wood and gilham. because while, like folbigg, these two cases can tell us much about the systematic failures of the criminal trial, about what can go wrong in even well resourced cases, or about the under-considered relationship between prosecutorial obligations and the use of incriminating expert evidence, and they are certainly sensational cases, they are not ‘telling’ in quite the same way. emma’s book is special, i think, because she manages to show how folbigg’s case is telling in the fizpatrick sense, popular on hariman’s terms, and diagnostic in the fraser sense. most clearly in these terms, emma charts what this case can tell us about ideologies of motherhood—as well as historical and current discourses of women, criminality and violence—as it also hints at the relevance of ‘postfeminism’ as a complicating cross-narrative. and, as i discuss further below, it manages to combine this with a careful, pragmatic account of how courts could do better when faced, as they will inevitably be, with conflicting or uncertain forensic evidence, particularly in situations where such evidence is especially vulnerable to an insidious form of coproduction.[footnoteref:32] [32: murder, medicine and motherhood draws on work by sheila jasanoff in characterising the relationships between the courts and science/expertise as one of coproduction: see science at the bar: law, science and technology in america (harvard university press, 1995). see also bruno latour, science in action (harvard university press, 1987). coproduction provides a useful framework for understanding that when it comes to the generation of expert knowledge within and for a legal dispute, a reciprocal relationship of influence, like the dimension of interpretation, is likely to be inevitable, and is not necessarily suspect. however, in a case such as folbigg, dealing as it does with a diagnosis, and medical literature, that is complex, contested and inflected by normative ideologies, these dynamics operate in ways that are not only hegemonic, but also particularly difficult for the defence to expose adequately. even in a case such as wood where the ‘coproduction’, and indeed the deficiencies of the expert evidence, appear in retrospect to be so transparent as to be almost (blackly) comic, none the less a well resourced and experienced defence was unable to counter effectively the inherent weaknesses in cross’s evidence, nor to adequately reveal his involvement in the investigation. as discussed further below (see n 61 and surrounding discussion), developing what emma terms a robust account of the reciprocal relationships between science and law is a necessary part of developing an adequate response to the management of expertise and expert knowledge within the trial. see also, in a related vein, gary edmond, “supersizing daubert science for litigation and its implications for legal practice and scientific research” (2007) 52 villanova law review 857.] but turning first to what emma’s account tells us about how the trial and indeed the appeals, constructed and flattened out folbigg’s experience of mothering, in such a way as to provide, in the absence of definitive, reliable evidence that could point to how her children died, and in the face of significant known challenges in overseas jurisdictions to the use of ‘coincidence’, evidence that relied on the pattern of four unexplained deaths as an indicia of murder, proof of guilt.[footnoteref:33] in this respect the use of folbigg’s diaries was critical, but more than this, the narrative constructed by tedeschi, elements of which were repeated in the case against keli lane, managed to create a situation where every action by folbigg was able to be constructed as suspicious, leaving her, and her defence, very little room to move when it came to countering what became an apparently overwhelming case. [33: most prominent here was the realisation that the ‘statistical’ evidence—that the chances of three natural infant deaths in one family was 1 in 73 million—presented by sir roy meadows in the prosecutions of angela cannings and sally clark was simply wrong. the so called ‘meadows’ law’—variously expressed, but most commonly rendered along the lines of ‘one is tragedy, two is suspicious, three is murder’—was equally spurious: see discussion of cannings and clark in murder, medicine and motherhood, 8-11 and in chapters 4 and 5. folbigg’s committal hearing occurred prior to these cases, and similar spurious statistics were proffered at that hearing: lee glendinning, “four dead by their mother’s hand”, the sydney morning herald (online), 22 may 2003 (http://www.smh.com.au/articles/2003/05/21/1053196642652.html, accessed 23 march 2013). however, by the time it came to trial, the discrediting of meadows meant that the evidence was confined to more generalised statements as to the ‘rarity’ of such multiple deaths. however, just as problematically, their experience as to rarity of four natural (or unexplained) deaths in one family was still canvassed in the questioning of the expert witnesses, at the same time that the fact of the rarity was being characterised by the trial judge as a matter of common sense and within the province and knowledge of the jury (see discussion, above n 18). the conceptual confusion made it much harder to decouple the fact of rarity from the uncertainty as to the cause of death. by contrast, in matthey, the trial judge was far clearer as to the need to separate out, conceptually, the question of the rarity of multiple deaths from the expert opinion as to cause of death. and thus the lack of agreement in the medical evidence was able to come to the fore, and in many respects this compelled the conclusion that matthey’s case could not be safely sent to a jury: see matthey [2007] vsc 398, per coldrey j, [188]-[192], [199]. a similar point is made in r v phillips [1999] nswsc 1175: see murder, medicine and motherhood, 6, 195. see also gaudron j’s dissent in velevski which supports the view that a jury faced with a fundamental conflict in the expert evidence on a critical point—and in the absence of sufficiently compelling alternative evidence upon which to base a verdict— must have a reasonable doubt: velevski v the queen [2002] hca 4, [86], [112]. further, given that it was acknowledged that the jury had accessed additional information about folbigg, there is at least a strong possibility that they also came across the media reports of the committal hearing, including the reporting of the (spurious) numbers: see n 43 below.] to begin, and in the context of the admissibility rules that governed the (joint) trial, there are significant cross-overs between thinking about the rules of evidence and thinking about the gendered narratives running through the case, perhaps most significant being the way in which the crown managed to use the coincidence rules not only as the conceptual framework for thinking about the (damning) significance of the four unexplained deaths, but also, and equally as damaging, as the means of rendering the largely inevitable consequences of the gendered division of labour within the folbigg household as suspicious. as emma tracks in detail, the list of similarities relied on to show that the evidence had “significant probative value” such that it could be used to determine whether folbigg had killed the children included: (iii) each death occurred in the child's own cot or bed; (iv) each death or alte occurred during a sleep period; (v) each child was last seen alive by the accused; (vi) each child was found not breathing by the accused, and in relation to those who died in the night, she claimed to have observed from a distance, and in the dark, that they had stopped breathing; (vii) only the accused was awake or present at the time when each child was found dead or not breathing; (viii) there was, in each case, a short interval between the time when the child was last claimed to have been seen alive by the accused, and the time when he or she was found lifeless or not breathing properly; (ix) in relation to the children who died in their cots or had an alte in the night, the accused had got up to go to the toilet, and in some cases had returned to bed, before getting up again and sounding the alarm; (x) the accused had failed to pick up or attempt to resuscitate any of the children after the discovery of his or her death or cessation of breathing (subject to her claim to have done so in relation to laura);…[footnoteref:34] [34: r v folbigg [2003] nswcca 12, [11]. see the discussion in murder, medicine and motherhood, chapter 6, especially 107 ff. the crown closing address rendered these similarities slightly differently and as emma points out, the list of similarities itself mutated as the case worked its way through the system—what was initially presented when the crown was arguing that the cases could, and should, be tried together was reframed at trial. and as the list of similarities shifted, and the crown was precluded from relying on reasoning of the type offered in the trials of clarke and canning, the presence of the diaries became more and more critical to shoring up the appropriateness of the conviction. note also that in the 2005 appeal, justice sully performed what seems to be a rather extraordinary move when he relied on the interlocutory judgment in canning to support the conclusion that the probative value of the evidence was not outweighed by the danger of (unfair) prejudice and thus neither s 101, nor s 137 should operate in folbigg to exclude the evidence. and this is notwithstanding that his honour had, in the same judgment, previously cited the court of appeal’s warning, in overturning canning’s convictions, to be cautious about falling into the trap of “taking the wrong starting point” when dealing with the inferences that can be drawn from rarity. see r v folbigg [2005] nswcca 23, per sully j, [156], [12].] of particular note here is the attempt to read something significant in terms of the probative value into the fact that it was folbigg who was getting up at night, and who thus was the parent who raised the alarm. tedeschi’s success in framing care as suspect is apparent when you consider the extraordinary language he uses in describing folbigg finding her children dead after checking on them while getting up to go to the toilet. as emma recounts, he first expresses disbelief that a sleep deprived mother would (need to) get up to go to the toilet during the night, and then goes on to say, in his closing address, “her going to the toilet was very dangerous for these children. … gosh you’d be telling her not to check on them.” and as emma emphasises, what should have been much clearer, to the trial judge and indeed the appellate courts—and this is putting aside the descriptive circular similarities that are necessarily present in a case where the deaths of four children from the same family are being heard together—the fact that folbigg was the primary caregiver explains most of the ‘striking similarities’ that underpinned the joint trial and the admissibility of the evidence as evidence that can be used to negate coincidence.[footnoteref:35] counter-intuitively the crown was able to convert folbigg’s ‘good mothering’, her active parenting and role as primary caregiver, into evidence that substantiated her guilt. and while this was a point that the defence made some attempt to articulate, in the end it was unable to make this point strongly or clearly enough, faced as it was with the difficulty of simultaneously trying to frame folbigg as a caring, ideal, unambiguously good mother, who dressed her children neatly and was consistently attentive to their needs.[footnoteref:36] [35: and noting, also, that admission of this evidence was thought at the time to require that there be “no rational explanation consistent with innocence”. see above n 3. which ought to have given the court pause when considering a list of ‘similarities’ that not only relied on folbigg’s role as primary care-giver, but also sought to draw significance from the fact that, in common with most small children, the folbigg children spent time at home in their cots, asleep. in contrast, justice coldrey in matthey points out that the fact that the children died alone while in the company of their primary carer has minimal, if any, probative value: r v matthey [2007] vsc 398, [193]. while it is important to acknowledge that by the time the appeal in relation to folbigg’s conviction was heard the admissibility terrain had shifted somewhat, the courts also seem to envisage that even more problematically, the evidence describing the circumstances surrounding the deaths can be used to ground a conclusion as to a probative tendency of the accused (to lose her temper with her children?) as a step in the reasoning process towards guilt, which tends to occlude the risks and slippages involved in relying on evidence of tendency. this approach is consistent with trends in more recent cases in new south wales involving the use of tendency evidence as an intermediary step, representing what is arguably a problematic lowering of the admissibility threshold: see for example regina v pwd [2010] nswcca 209.] [36: the attention drawn to the appearance of the folbigg children, by witnesses called by the defence, is itself striking. tedeschi’s strategy of discounting the evidence of these supporting witnesses as the ‘gym girls’ plays, successfully perhaps, into this focus on appearances, emphasising that these observers are missing the true picture. see murder, medicine and motherhood, 121.] so, faced with a mother who in many respects conformed to the ideal—she gave up work, she devoted herself to her children, she to all outside appearances put the interests of her children ahead of herself, and she had, nonetheless tragically, lost those children—the crown case as run by tedeschi does a number of things, many of them familiar and predicable manoeuvres. it is perhaps this that makes them in many ways so striking—because what emma’s book points to is the resilience of normative constructions of motherhood, in the face of sustained critique from feminist commentators, and despite the circulation of what appears to be a more forgiving social and popular discourse about the challenges of parenting (mothering) in contemporary times. first, as one strand of his case, tedeschi constructs a narrative of resentment and thwarted ambition: that, not withstanding her apparent willingness to care for her children, in reality folbigg resented being made to conform, and that she wished to return to her ‘former’, self absorbed life. as the crown case unfolds, it becomes clear that, notwithstanding the presence of contemporary counter-narratives that purport to be more understanding of the difficulties of fulfilling idealised conceptions of motherhood, folbigg can nonetheless be judged as an unfit mother, for her unwillingness, her immaturity, and her emotional inability to perform the proper role she has chosen. the crown emphasises that kathleen and her husband had made ‘a deal’, and this construction of the division of labour within the folbiggs’ home as a choice is an important strategy; it short-circuits the possibility of sympathy, and operates ideologically, rendering the historical realities and pressures of the gendered division of labour invisible.[footnoteref:37] thus she improperly, and contrary to the strictures of the folbigg family, sought opportunities to work, to socialise, to go to the gym, she was obsessed with her weight and appearance, she unfairly resented the lack of assistance provided by craig, notwithstanding that she had ‘accepted’ the binary deal of breadwinner/caregiver. she wanted to go out dancing. [37: the strategic deployment of ‘choice’ being a common incident of both ‘postfeminist’ and ‘postsocialist’ discourse: see fraser, above n 30 and also rosemary hennessy, materialist feminism and the politics of discourse (routledge, 1993), especially chapter 4. ] and in terms of how this narrative persists, it is worth noting that in keli lane’s case much is made of the fact that on leaving the hospital after the birth of her daughter she too goes dancing. the implication is clear, even if one believes her explanation that she has handed her child over to its father, that this is not the behaviour of a woman who wants to be a mother, who genuinely cares for her child. in the crown case against lane, she too is obsessed with her weight and appearance and in her case this is more explicitly coupled to the norms of a reserved feminine sexuality. tedeschi’s submissions to the jury included pointing out she had, “a very active social and sex life. a child was just not part of that picture” and that, “[a] child would put a serious dent in these activities . . . as it would have undoubtedly put a dent in her overriding sporting ambitions [to play waterpolo for australia].”[footnoteref:38] coupled with her promiscuity, and her unacceptable, self-centred immaturity and ambition, is the expressed disbelief that an intelligent, educated woman, from a good family, could have (so many) accidental pregnancies. even more extraordinarily, tedeschi argues before the jury that the fact that lane accepts a job while pregnant, knowing that it is due to commence shortly after the birth of the child, “show[ed] only too vividly that she had no intention of ever taking tegan home.”[footnoteref:39] in tedeschi’s narrative, all of her actions in response to her pregnancies, the adoptions, the terminations, the (alleged) murder, become morally equivalent and equally suspect, and all are evidence of her “tendency to dispose of her children.”[footnoteref:40] it is perhaps too easy to note, also, that according to woman’s day, lane remains preoccupied with her weight (though she has lost a lot) and the mother of ebony is likewise obsessed with her hair and make-up. by contrast, folbigg is “fit and well”, she is adjusted to her new life, “prison routine agrees with her.” she smiles. [38: variations of these comments were widely reported throughout the trial. see, for example, lisa davies, “games dream led to murder: court told of keli lane's bizarre olympic motive” the daily telegraph (sydney), 10 august 2010, 1.] [39: kim arlington, “no time for five babies: keli lane accused”, the sydney morning herald, 10 august 2010, 1. the primary argument in the nswcca related to whether an alternative charge of manslaughter should have been left to the jury. defending the decision to confine the case to one of murder only, the crown argued that manslaughter (or accidental death) was inconsistent with her past conduct in concealing her past pregnancies and the evidence that she had repeatedly shown that she “did not accept the responsibility of caring for the [a?] child.” there was little or no critical discussion in the appeal of the language used by tedeschi, or of the narratives deployed in her trial, though the second ground related to the prosecutorial approach and conduct during the trial, in particular the posing of questions to the jury in a manner that might displace the crown’s onus of proof, with comparisons drawn between lane’s trial and the trial of gordon wood. ] [40: r v lane, above n 20, per mcclellan j. in its submissions on sentencing, the crown argued that her previous pregnancies could be considered as pointing to the seriousness of her offence: “mr chapple sc [acting for lane] submitted that the offence fell at the lowest end of the spectrum in terms of its objective seriousness. the crown did not accept this submission. it referred to aggravating features involved, the selfish motives underlying the murder, and the fact that this was not the first time the accused had been involved in giving birth to a baby, indeed, a baby she did not intend to keep.” r v keli lane, above n 7, [36].] but at the same time, as a further means of undermining folbigg’s care of her family, tedeschi constructs a narrative of the overbearing, controlling, dominant mother—obsessed with routines, unwilling to allow the father to contribute—who is headed, inevitably, towards a battle of wills in which her children will lose. just as tedeschi has pointed us to folbigg’s obsession with her own appearance, he warns us not to be fooled by appearances. it is perhaps worth noting here how this maps onto conventional understandings of that figure of maternal deception, the msbp mother whose apparent care for her children is in fact a manifestation of a pathological desire for attention.[footnoteref:41]and by revealing kathleen folbigg’s apparently caring, good, mothering as overbearing and potentially monstrous, tedeschi is able to make far more of the cracks in appearances, via the evidence of craig folbigg, the evidence of expressions of temper and lack of control, that seem to take the defence by surprise and places them in an invidious position.[footnoteref:42] [41: on the construction of (the contentious and arguably now discredited) munchausen’s syndrome by proxy, see discussion in fiona e raitt and m suzanne zeedyk, “mothers on trial: discourse of cot death and munchausen’s syndrome by proxy” (2004) 12 feminist legal studies 257.] [42: the fact that the accused has experienced expressed irritation becomes one of the ‘striking similarities’ in the circumstances leading up to the deaths, not withstanding that the evidence in relation to events preceding all four children is equivocal or incomplete. rather the diaries are used as evidence that the accused is acknowledging that she had become stressed while caring for the children, particularly the third child, sarah. it perhaps goes without saying that incidents described are hardly unusual in the day to day life of many parents and children, but in an environment where the defence strategy relied on characterising kathleen folbigg as conforming to an ideal type, it perhaps shied away from acknowledging fobigg’s experience as representative of the imperfect, day to day frustrations and conflict that can be generated in the home. ] finally, building on the revelation that folbigg’s mothering was in fact not a demonstration of care, but rather a manifestation of her (improper) desire for control, tedeschi uses her diaries as confessionals, as emma points out, to reveal the ‘true’ nature of folbigg’s mothering by way of the ‘machine’ for reading her true state of mind. [footnoteref:43] thus the emphasis on the way that the diaries record this battle of wills, as well as folbigg’s day to day preoccupations, which include comments on her sense of her own well being. this point reverberates in the list of ‘striking similarities’ described above as well, as they simultaneously rely on and occlude the normative ideals of motherhood. most obviously the expectation that an innocent mother, who is truly focused on her children’s needs, would have attempted to resuscitate, to cradle, her child is implicit in point (x) above. thus the crown case is able to present the most striking sections of the diary as unequivocal admissions, isolating the most striking phrases out of their full context: “[craig] has a morbid fear about laura—he well i know theres nothing wrong with her. … because it was me not them” and “scared that she’ll leave me now. like sarah did. i know i was short tempered & cruel sometime to her & she left. with a little help”, and also is able to point to sections that appear to predict the death of her children.[footnoteref:44] [43: see chapter 7 in murder, medicine and motherhood.] [44: not mentioned in the judgments as a relevant diary entry, but present in the media accounts, was folbigg’s use of the striking phrase, “obviously, i am my father’s daughter”. folbigg’s mother had been murdered by her father, thomas britton, because, according to one newspaper report, “britton was furious over his partner’s severe neglect of kathleen”, who was then eighteen months old. see stephen cauchi, “killing them softly”, the age (melbourne), 30 august 2003. it became apparent after the trial that the jury had conducted their own research about the case, and had acquired knowledge of folbigg’s family history: folbigg v r [2007] nswcca 37. ] and the diaries are accepted as revealing folbigg’s awareness of her own culpability by the courts, at each appellate level, as they seek to reassure themselves that folbigg will not become another sally clarke or angela canning. emma’s account demonstrates the way that the crown case successfully flattens out ambiguity, extending beyond reading what could conceivably be folbigg’s expressions of her sense of guilt and responsibility into admissions and seeping into the reading of all aspects of the diaries, so that expressions of ambivalence towards her experiences are likewise flattened out—functioning as premonition or as evidence of premeditation—so that they too can be subjected to an interpretation that reads only one thing between the lines.[footnoteref:45] there is, i suspect, a significant class element at work here. rather than a reading that might allow for a recognition that (women’s) diaries might offer insights into the sensibilities and (hidden) capabilities of their author (while also acknowledging that they are not a transparent record), in this case the framing of the diaries by the crown—with their mistakes, mundane details and lack of literary quality—precludes the possibility of a more complex inner life for folbigg.[footnoteref:46] and it is worth noting here that, as so meticulously documented by emma, this flattening of ambiguity is a strategy that is used in relation to the expert evidence as well—the removal of qualification and the eliciting of a hardening of incriminating opinion that is done so skillfully, but also seems to happen almost inevitably, that perhaps even tedeschi might be surprised by what he has wrought. [45: see, for example, in the 2005 appeal, the comment that folbigg’s ‘admissions’, including that she is trying to control her responses to frustration, or that she has lost her temper, “make chilling reading in the light of the known history of caleb, patrick, sarah and laura”: r v folbigg [2005] nswcca 23, per sully j, [132].] [46: it is worth noting here also the presentation of folbigg as a woman of limited intelligence and stunted emotional development, which particularly came to the fore in her sentencing. emma’s account of the ways in which the diaries could be read draws on a far more nuanced account of women’s writing. and in this regard it might be worth considering by way of comparison (and contrast) the conventional image of the female novelist, writing in secret, revealing her hidden depth of understanding only her novels. in other work, emma usefully extends this analytical approach to the reading of other forms of court documents: “(this is not a) story: using court records to explore judicial narratives in r v kathleen folbigg” (2007) 27 australian feminist law journal 71.] the crown narrative of the overbearing monstrous mother, and use of her diaries to reveal her true nature also, and emma i think alludes to this, taps into the idea that folbigg epitomises the deceptive, violent, murderous woman who has had us all fooled. in lane’s case, the crown narrative also emphasised the ‘golden girl’ with the secret life and hidden tendencies—the ongoing and deep deception that was both evidenced, and revealed, by the multiple (concealed) pregnancies. the point here is complicated, not so much a counter narrative as the supplement to the narrative that sees, or purports to see, murder by a mother of her child as inexplicable, and thus must be in some way pathological.[footnoteref:47] rather it is a construction in which deception is inevitably constituted in the (violent, immature, natural) female offender and, because of the discursive constructions of gendered difference that are at work here, more fundamentally of women.[footnoteref:48] [47: see, for example, discussion in raitt and zeedyk, above n 40. raitt and zeedyk open their article with the comment of justice hallet, trial judge in r v cannings [2004] 1 ewca crim 1: “i have no doubt that for a woman like you to have committed the terrible acts of suffocating on your own babies there must have been something seriously wrong with you. …” (emphasis added).] [48: see carol smart, “the woman of legal discourse” in law crime and sexuality (sage publications, 1995). ] this construction of feminised deviance, and female criminality, and perhaps in particular the construction of the woman who has murdered her child, is never a simple story of departure or aberration from the norm(ative). in fact, as smart has noted, there is, in the construction of the female criminal, a double strategy at work, one that is premised on the capacity to characterise woman, and thus the female offender, as “both kind and killing, active and aggressive, virtuous and evil, charitable and abominable, not either virtuous or evil.”[footnoteref:49] and in this respect it is perhaps worth noting a further layer, another echo chamber, one that is hinted at in emma’s account, generated by the cross currents within feminist analysis concerned with agency, women and violence, but circulating in the public sphere in a form that, inevitably, flattens out historical complexity. for we should also consider how these narratives and (re)constructions of normative motherhood and of concealed criminality play out in a ‘post-feminist’ era and how the figure of the self-absorbed “baby killer mum” can both reveal and replicate a narrative that was a distinctive strand in what we used to call the ‘backlash’—and remains a persistent and pervasive element of contemporary gendered discourse—the ‘popular theory’ of the expressive, violent girl/woman as the inevitable supplement to feminism and equality.[footnoteref:50] [49: smart, above n 47, 194. smart’s point is that these seemingly contradictory constructions become explicable once we realise that they are implicated in the construction of gendered difference more broadly.] [50: meaghan morris uses the term ‘popular theory’ to describe the, often hegemonic, ideas that circulate in and as popular culture: see mehera san roque, “popular trials/ criminal fictions/ celebrity feminism and the bernardo/homolka case” (1999) 13 australian feminist law journal 38. see also carol smart, “feminist approaches to criminology, or postmodern woman meets atavistic man” in law, crime and sexuality, above n 47; alison young, “criminology and the question of feminism” in imagining crime (sage publications, 1996); and discussion in murder, medicine and motherhood, 101-103.] so as emma points out through her opening epigraph, it is complicated, though emma’s account makes it at least easier to understand the ways in which the medical, legal and popular discourses converged, with such devastating effect, in folbigg’s case. and to understand why the narrative cannot be that of the rogue prosecutor, nor is it one of deliberate inattention, or malice, on the part of the court, the experts (though i suspect that emma is willing to go harder here) or defence counsel. while it is important, as murder, medicine and motherhood does, to focus attention on the conduct of the prosecution, and while it is perhaps easy to do as i have done, and make connections with the other cases run by tedeschi, it is also important to remind ourselves that the obligations of the prosecutor are but one of the failed trial safeguards—and that (all of) these cases are, indeed telling, diagnostic of systemic failure in the operation of the conventional adversarial trial, and that accusatorial principles require a rethink of the way that courts have conventionally approached the admission and evaluation of expert opinion.[footnoteref:51] but in the broader sense, that these cases are ‘telling’ instances, popular trials, or moments of hyperpublicity, cases like folbigg and lane, and, notwithstanding the distinction that i drew earlier, also wood and gilham, are, by fitzpatrick’s definition, a symptom of an obsession, that a trial process, conventional or otherwise, is going to be unable to resolve, at the very point when the situation demands, of the process, resolution. so in this environment, how to offer a way forward, while at the same time insisting, as emma does, on the analytical importance of uncertainty? [51: in this respect it is disappointing that in wood, the court of criminal appeal draws attention to the obligations of prosecutions, but does not really get beyond the rogue prosecutor explanation.] recent coverage of the folbigg case in australia has focused on the flaws in the expert evidence that was presented at folbigg’s trial, drawing attention to contemporary understandings of multiple infant death, and including speculation that were folbigg to be tried today, the medical evidence could not support a conviction.[footnoteref:52] one of the strengths of murder, medicine and motherhood is the careful account of the development and state of the medical literature underpinning the prosecution of folbigg. the analysis is revealing in a number of ways, demonstrating both the deficiencies of the evidence itself, but perhaps more significantly documenting the way in which the trial process itself contributed to the production of what was arguably a distorted picture of agreement within the field, overstated the strength of the evidence, and further encouraged the prosecution experts to ‘harden’ their opinion. the argument is that not only was folbigg prosecuted at a moment where the accepted scientific account was itself shifting, but also that her trial occurred at a moment when the punitive narratives of normative motherhood attached to the account of multiple infant death were operating at their full strength. but while it may be true to say that a more tempered view of the expert evidence might mean that a prosecution today, against folbigg, might not succeed, as i think lane’s case shows, the normative values that underpinned tedeschi’s narrative have proved to be extraordinarily persistent—we are not all ‘postfeminists’ now, and it is important not to become complacent about changing times. [52: see, for example, eamonn duff, “new science would let folbigg go free”, the sun-herald (sydney) 3 february 2013, 4; mark whittaker, “did she do it?”, good weekend (sydney), 2 february 2013, 18-20.] but as i have said before, emma’s book is special because in murder, medicine and motherhood she combines her clear eyed gendered analysis with an account of how the case is significant in terms of the operation of the adversarial system and she manages to provide concrete (even simple, though not simplistic) principles that can be used both to manage conflicting expert evidence but also to elicit better information so as to enable a trial court to better assess both the strengths and risks attendant on such evidence. emma argues that when dealing with infant deaths, single or multiple, we need to be attentive, at first instance to our starting point; that is to say that interpretations of behaviour, demeanour, and indeed written records such as diaries, must proceed from, and thus be moderated by, the presumption of innocence. as was made clear in canning, much will depend on your starting point.[footnoteref:53] [53: see discussion in murder, medicine and motherhood, 205. note, again by way of contrast to folbigg, that in matthey, justice coldrey takes a far more nuanced approach to the interpretation of cues such as demeanour, including (lack of) expressions of grief, as well as noting that evidence of observations as to the accused’s relationship with her children are likewise of minimal probative value as evidence of the accused’s ‘true’ state of mind: see r v matthey [2007] vsc 389, [283], [290], [292]-[299].] next, confirming the point made in canning, and applied in matthey, when considering expert (medical) opinion as to cause of death, it is critical to guard against double counting.[footnoteref:54] most obviously expert opinion cannot rely on the now discredited assumptions that the rarity of the multiple deaths is itself indicative of cause. but equally, if expert opinion in this area will be shaped, almost inevitably, by interpretations of psycho-social factors, then this needs to be clearly articulated and understood within the trial context. consequent on this is thus an obligation on courts, on judges, when considering the admissibility of incriminating expert evidence, to sharpen up their analysis, and to be far more attentive, in a substantive way, to the basis of the expert opinion.[footnoteref:55] in this context this is particularly important where the reasoning process may have involved the expert being exposed to (arguably) domain irrelevant information or double counting.[footnoteref:56] [54: murder, medicine and motherhood, 71.] [55: in the civil sphere, but consistent with emerging trends in criminal cases, in cases such as dasreef pty ltd v hawchar [2011] hca 21, courts in australia have recently (re)directed attention to the importance of determining the ‘basis’ of the expert opinion (see also hg v the queen [1999] hca 2), but have stopped short of imposing a condition of substantive or demonstrative reliability on incriminating evidence proffered by the state. see, for example, discussion in edmond and san roque, above n 10; gary edmond, “impartiality, efficiency or reliability? a critical response to expert evidence law and procedure in australia” (2010) 42 australian journal of forensic sciences 83-99; and gary edmond and mehera san roque, “just(,) quick and cheap: do we need more reliable expert evidence in civil proceedings?” in michael legg (ed), the future of dispute resolution (lexisnexis, 2013). the recent decision in dupas v r [2012] vsca 328 does, however, offer the possibility of a victorian-led shift in the jurisprudence in this area. emma discusses trends in this area more broadly in “independence, reliability and expert testimony in criminal trials” (2013) 45 australian journal of forensic sciences 284.] [56: a far sharper, contextually sensitive, analysis of the ways in which the tendency and coincidence rules function in this area is also indicated.] equally, expert obligations in terms of disclosure of reasoning need to be addressed, by the expert, in substantive rather than formulistic terms and emma’s principles would require the expert to not only describe the investigations that were undertaken, and the reasoning process involved, but also to situate the analysis within the existing literature, and to be explicit about the conditions of uncertainty and doubt affecting the field. significantly, and in line with cases such as canning (and matthey), emma points out that some conditions of uncertainty will mandate an acquittal.[footnoteref:57] and thus running parallel to this is an obligation on judges, lawyers, and in particular prosecutors, to be far more attentive to the significance of uncertainty within a discipline; conventional adversarial safeguards or reforms of procedure, with their focus on form over substance, are not a sufficient proxy. so not only must we be sceptical of the manner in which the asserted compliance with expert codes is taken at face value by (trial) courts, but we must also ensure that the prosecutorial obligation to disclose uncertainty to the defence is a real one.[footnoteref:58] finally, courts need to be attentive to shifts in opinion, and to be particularly cautious where it becomes apparent that an expert has hardened their opinion as the investigation and trial unfolds. more specifically in relation to infant deaths, emma proposes a set of categories that will help prosecutors, experts and courts to manage the complexity, and help them to identify which cases are most likely to be vulnerable to mistranslation, to double counting, to miscarriage.[footnoteref:59] [57: murder, medicine and motherhood, 201.] [58: gilham and wood offer salutary lessons here. in a different, but equally fraught field, see for example the discussion and strong criticism of the conduct of the commonwealth dpp for its reliance on discredited techniques and inadequately qualified experts in its prosecution of minors for people smuggling offences. the report of the inquiry into these cases drew attention to the fact that the commonwealth dpp continued to rely on a discredited technique for many years after it was on notice that the evidence they were relying on did not have a proper foundation, and further that there was a failure to disclose the known limitations to the defence: an age of uncertainty, above n 10, chapter 3, especially 138 ff. ] [59: murder, medicine and motherhood, chapter 4 and 200.] emma’s proposed principles are ones that have been developed in response to the particular risks revealed in the folbigg prosecution, and in this respect her book is located firmly as part of a feminist reform project. this location is particularly clear when we consider the principles she offers as ways to think about fobigg’s diaries that are attentive to the complexities of relying on such documents.[footnoteref:60] but further, it is this careful attention to the narrative patterns that reflected and instantiated normative ideologies of motherhood in this ‘telling’ case that enable what might be otherwise seem as a distinct (ungendered) reform project with respect to the management and evaluation of expert evidence more broadly. [footnoteref:61] her proscriptions and prescriptions are informed by her attentiveness to and acceptance of the inevitable role of interpretation, mediation and (re)construction when dealing with expertise in the courtroom—and that this process might be able to support the production of more, rather than less, reliable evidence.[footnoteref:62] [60: again, while these ideas might be most easily related to cases with comparable fact patterns, they are by no means limited to such cases.] [61: comparison with work such as dorothy e smith’s the conceptual practices of power: a feminist sociology of knowledge (university of toronto press, 1990), or rosemary hennessy’s (above n 36), comes to mind here. ] [62: in this regard, latour insists on what is perhaps a reconfigured image of certainty when he argues that reliability and accuracy should be seen as the products of mediation and interpretation: see bruno latour, on the modern cult of the factish gods (duke university press, 2010).] and these principles that emma foreshadows in the final chapter of murder, medicine and motherhood, and develops further elsewhere, are principles that can be applied by courts now.[footnoteref:63] they are consistent with fundamental principles of the criminal trial—ensuring fairness for the defendant, the presumption of innocence, proof beyond reasonable doubt, factual rectitude—and with current evidentiary rules and frameworks,[footnoteref:64] introducing new safeguards into the trial directed towards managing a potentially pathological coproduction.[footnoteref:65] her principles are very much in line with reforms that might be developed in response to critiques of forensic sciences informed by the critique, for example, of the national academy of sciences,[footnoteref:66] but they offer something that can be done without a need to wait for a broad, externally generated reform project, or a wholesale revision of the trial process, or the manner and form in which expert evidence is presented to such a forum. [63: see also emma cunliffe, “independence, reliability and expert testimony in criminal trials”, above n 54.] [64: this is notwithstanding the fact that the development of a jurisprudence around the admissibility of expert evidence in uniform evidence law jurisdictions, particularly with respect to incriminating expert evidence, has been slow and uneven, and that courts, particularly in new south wales, have resisted importing a condition of reliability as a threshold requirement. even in uniform evidence law jurisdictions there are signs of a (limited) shift in approach in relation to expert evidence, and a recent authoritative decision of the victorian court of appeal has confirmed that the trial judge does have a role in evaluating the reliability of evidence when considering whether to exclude evidence that might be prejudicial, confusing or misleading, to the extent that the risks outweigh the probative value of the evidence (s 137 uniform evidence law): dupas v r, above n 54. note, however, the nswcca’s responsive counterpoint to dupas, on the interpretation of s 137, in r v xy [2013] nswcca 121, handed down in may 2013. in relation to relationships between fundamental fair trial principles and admissibility rules for expert evidence, see, for example, gary edmond and andrew roberts, “procedural fairness, the criminal trial and forensic science and medicine” (2011) 33 sydney law review 359.] [65: the characterisation of coproduction as potentially pathological is borrowed from gary edmond and discussed in gary edmond and mehera san roque (with others), “justicia’s gaze: surveillance, evidence and the criminal trial” (on file).] [66: see above n 4.] in murder, medicine and motherhood (and elsewhere) emma actively resists and reconstructs the conventional law/science binaries, and consequently she offers something both more realisable and more nuanced than the conventional ‘reform’ agendas of concurrent evidence, expert codes, specialised courts, judge only trials, and other standard responses to the expert evidence ‘crisis’ as it is conventionally configured. such responses, may offer some benefits, and—putting aside the perennial calls for the abolition of the jury—they are not necessarily inconsistent with emma’s principles. but, as conventionally configured, such responses generally over-estimate the efficacy of procedural reform and they lack reflexivity; they fail to account for the complexity of the dynamics that murder, medicine and motherhood uncovers. thus to insist on uncertainty, as emma does in her conclusion, is a principled response, but more than this, it is also a pragmatic one. _____________________________________________________________________________________________ 4 _____________________________________________________________________________________________ 1 madhumanti mukherjee judging in the presence of women as legal persons _____________________________________________________________________________________ feminists@law vol 1, no 2 (2011) _____________________________________________________________________________________ judging in the presence of women as legal persons – feminist alternative to the indian supreme court judgment in sakshi v. union of india madhumanti mukherjee[footnoteref:1]* [1: * phd candidate, kent law school, university of kent, madhumanti2011@gmail.com ] introduction in this paper i will present an alternative to the supreme court of india’s judgment in the case of sakshi v. union of india air 2004 sc 3566. the purpose of this exercise, inspired by the feminist judgments project in the uk[footnoteref:2] and elsewhere,[footnoteref:3] is to implement feminist theory in judicial practice and to provide an alternative to the supposedly ‘universal’ voice of judicial authority. alternative judgments, in this case feminist judgments, have the potential to destabilise the claims of universality and neutrality in judicial decision-making and expose the underlying inevitable positionality of the decision-makers and their political leanings.[footnoteref:4] i have chosen this particular judgment because its inadequacies affect women’s lives profoundly in relation to sexual violence, for reasons i will discuss later. [2: r. hunter, c. mcglynn and e. rackley (eds.), feminist judgments from theory to practice (oxford: hart publishing, 2010)] [3: canada at http://www.thecourt.ca/decisions-of-the-womens-court-of-canada/ ] [4: r. hunter, ‘an account of feminist judging’ in r. hunter, c. mcglynn and e. rackley (eds.), feminist judgments from theory to practice (oxford: hart publishing, 2010) 30-43] the original case was a writ petition submitted to the supreme court of india in its original civil jurisdiction under article 32 of the constitution of india. article 32 empowers any person or group of persons within the jurisdiction of the constitution, to move the supreme court for the enforcement of her/his fundamental rights.[footnoteref:5] the fundamental rights too are listed in the constitution.[footnoteref:6] the fundamental rights that the petitioner was seeking to enforce through this petition were the right to equality contained in articles 14 and 15 and the right to life contained in article 21 of the constitution.[footnoteref:7] the petition was a public interest litigation (henceforth pil), that is, it was brought by a party on behalf of a group of persons even though the party is not a part of the group.[footnoteref:8] in the next sections i will summarise the facts of the case and the supreme court’s original decision before writing my feminist version of the judgment. [5: article 32, constitution of india] [6: part iii of the constitution of india] [7: article 14 and 21, constitution of india] [8: for the origin and history of pil in india, see p.n. bhagwati, ‘judicial activism and public interest litigation’, 23 columbia journal of transnational law (1984-1985) 561-577; for a critical overview of current problems and prospects of pil see h. dembowski, taking the state to court: public interest litigation and the public sphere in india (new delhi: oxford university press, 2000)] overview of the original judgment in sakshi v. union of india indian criminal law constructs ‘rape’ as heterosexual violence perpetrated by the insertion of a man’s penis into a woman’s vagina without the legitimate consent of the woman involved. the indian penal code 1860 (henceforth ipc), which contains the rape provision, was codified and enacted by the colonial british government.[footnoteref:9] it was part of the attempt to consolidate the power of the newly declared direct rule of india by the british government after the indian mutiny of 1857 and to give india an overall modern legal system by codifying most of its laws.[footnoteref:10] the other laws that were codified in this period included the indian divorce act 1869,[footnoteref:11] the indian contract act 1872, the indian evidence act 1872, and the guardians and wards act 1890. however, david skuy has argued that the motivation for enacting the indian penal code had nothing to do with the state of the contemporary indian laws. it was more of an experiment in codifying the british criminal laws and implementing them – [9: d. skuy, ‘macaulay and the indian penal code of 1862: the myth of the inherent superiority and modernity of the english legal system compared to india’s legal system in the nineteenth century’, 32(3) modern asian studies (1998) 513-557] [10: skuy (1998) at 553 ] [11: this contains the christian law of divorce in india] ‘…the code's substantive and procedural provisions were motivated by shortcomings in england. the indian penal code represents the transplanting of english law in india, not because indian law was primitive, but because english law needed reform. once the indian penal code is placed within its proper historical perspective, it becomes quite clear that india was rarely a factor in determining the code’s form or content.’[footnoteref:12] [12: skuy (1998) at 538] the enactment of the ipc coincided with a long-drawn political debate that had been raging in india, especially in bengal, since the end of the 18th century and had reached its peak at the later half of the 19th. the debate was between the british government and the indian reformists on one side and the indian cultural nationalists on the other side on the matter of legislative interventions in religious and social customs that disadvantage women.[footnoteref:13] the image of the quintessential indian woman had become a battleground for the coloniser and the colonised male at the time. the ideological justification of colonial rule was often based on the mission to civilise india and save its women from their own barbaric traditions. [13: p. chatterjee, ‘colonialism, nationalism, and colonialized women: the contest in india’, 16(4) american ethnologist (1989) 622-633] ‘alongside the project of instituting orderly, lawful and rational procedures of governance, colonialism also saw itself as performing a “civilizing mission.” in identifying this tradition as “degenerate and barbaric,” colonialist critics invariably repeated a long list of atrocities perpetrated on indian women … by assuming a position of sympathy with the unfree and oppressed womanhood of india, the colonial mind was able to transform this figure of the indian woman into a sign of the inherently oppressive and unfree nature of the entire cultural tradition of a country.’[footnoteref:14] [14: chatterjee (1989) at 622] a section of the western-educated urban elite hindu men of india had started to conceive of customs like child marriage, ascetic widowhood and sati[footnoteref:15] as a national embarrassment and branded them ‘social evils’. these groups had begun organising campaigns to lobby the colonial government for legislative interventions and had undertaken a wider program of female emancipation through education.[footnoteref:16] on the other side of the debate, the emerging cultural nationalists of india resisted zealously the legislative and other measures in favour of ‘female emancipation’ as an alien influence.[footnoteref:17] the fundamental problem for indian nationalists was to support the general modernisation of indigenous society to keep pace with western standards, and at the same time to affirm a distinctive cultural identity for the nation. the nationalists ‘resolved’ the problem by conceptually dividing the spiritual and material domains of culture as autonomous spheres and analogising them to the social roles of women and men.[footnoteref:18] indian women became the repository of the inner/spiritual life of the colonised nation and had to be defended against the reach of the alien colonial power.[footnoteref:19] among a storm of passionate political debate, the colonial state supported by indian reformers passed a number of legislative measures to rescue women from ‘oppressive’ customs – such as the prohibition of sati in 1829, legalisation of widow remarriage in 1856 and raising the age of consent within marriage in 1891.[footnoteref:20] [15: the tradition of ‘voluntary’ self-immolation of widows at their dead husband’s funeral pyre; for a deeper understanding of the history of the sati controversy in 19th century india, see l. mani, contentious traditions: the debate on sati in colonial india (berkeley, california: university of california press, 1998); and for a picture of sati in modern day india, see mala sen, death by fire: sati, dowry death and infanticide in modern india (london: w&n, 2001)] [16: s. sen, ‘toward a feminist politics? the indian women’s movement in historical perspective’, policy research report on gender and development working paper series no. 9, the world bank development research group/poverty reduction and economic management network (2000) at 7-8] [17: chatterjee (1989) at 627-632] [18: m. sinha, ‘reading mother india: empire, nation and the female voice’, 6(2) journal of women’s history (1994) 6-44 at 6-7] [19: chatterjee (1989) at 623-627] [20: t. sarkar, ‘a pre-history of rights: the age of consent debate in colonial bengal’, feminist studies 26(3) (2000) 601622] the law of rape within the indian penal code was enacted at this time of strong political friction between the cultural nationalists and the colonial state supported by indian reformers over the meaning and status of the quintessential indian womanhood. yet the rape law does not seem to be predominantly shaped by the above controversy, in all probability because the law of rape had no particular socio-religious connotation and with its marital rape exemption was perfectly compatible with the nationalistic patriarchal necessities of life. the criminal laws including the rape law was probably seen by the nationalists as part of the laws governing public life, similar to the other laws mentioned before, which were implemented without much controversy at all. moreover, the rape law was not so much an infringing alien norm interfering with an indian man’s authority over his women (as the other laws that outlawed established customs were); it was rather a tool for safeguarding his women from illegitimate intrusion (indian or foreign) and strengthening his title through the marital rape exemption. in the year 1997, fifty years after independence and more than one hundred and thirty years after the original rape laws came into force, sakshi, a sexual violence intervention and victim support organisation, filed a writ petition in the supreme court of india arguing for broadening of the definition of rape by judicial interpretation to include all other kinds of penetrative sexual violence against women. the respondents were the union of india, the indian central government’s ministry of law and justice and the commissioner of police, national capital territory of new delhi. the legal provision under scrutiny here was section 375 of the ipc – the provision that defines rape as the act, committed by a man, of having sexual intercourse with a woman without her consent and/or against her will by using force, intimidation, blackmail or deceit. the term ‘sexual intercourse’ has not been specifically defined by the statute, except for the assertion that even the slightest ‘penetration’ would amount to intercourse. ‘penetration’ again has not been defined. yet the law enforcers and judiciary have habitually adopted the definition of penetration of the vagina of the victim by the penis of the perpetrator. sakshi argued that such a narrow interpretation of ‘sexual intercourse’ renders the provision inadequate to provide redress in the considerable variety of penetrative sexual violence which does not involve vaginal-penile penetration. it asked the court to give the provision a broader judicial interpretation to safeguard the interests of the victims of these ‘other’ kinds of non-consensual sexual penetrations. the petition argued that such a narrow interpretation of the definition of rape infringes the fundamental rights of equality[footnoteref:21] and of life with human dignity[footnoteref:22] of women as a group. the arguments of the petitioner and the respondents will be elaborated fully in the alternative feminist judgment later on in the paper. here it would suffice to say that much of the arguments of the petitioner, in spite of their stance in support of justice for women, were problematic from a feminist viewpoint. the fact that i have chosen to write an alternative feminist judgment for this case, does not endorse the petitioner’s arguments as unproblematically feminist. sakshi did not include important feminist arguments in its petition, for example, the essential patriarchal nature of the division between ‘real’ rapes and ‘non-real’ ones.[footnoteref:23] most significantly it conflated the issue of legal non-recognition of the harms of ‘other’ kinds of penetrative sexual violence with the issue of protection of girl-children from sexual abuse. sakshi’s arguments frame the adverse effects of the narrow definition of rape in terms of legal inadequacy regarding child sexual abuse and argues that the rape law needs to acknowledge other kinds of rapes because the ‘modern’ times have seen an increase in the sexual abuse of girl-children. these two are related issues but in no sense they are the same, nor should they be substituted for one another. [21: articles 14 and 15, constitution of india] [22: article 21, constitution of india ] [23: i will elaborate this point in the judgment.] it is true that india has gross legal shortfalls when it comes to the criminalisation of sexual abuse of children. unless child sexual abuse involves vaginal-penile rape, it is prosecuted under provisions of unnatural sex (which does not depend on absence of consent, and until 2009 was primarily meant for consensual homosexual relations)[footnoteref:24] or the law that criminalises outraging the modesty of women.[footnoteref:25] both these laws are inappropriate for prosecuting sexual abuse for reasons i will elaborate in my feminist judgment. sakshi contended that the ‘other’ kinds of penetrative sexual violence that are left out of the current definition of rape are primarily endured by girl-children.[footnoteref:26] this is not a proven fact, nor is this the primary reason why the definition of rape needs expansion. [24: in 2009 a delhi high court decision in naz foundation v. government of nct of delhi, wp(c) no.7455/2001, delhi high court, order dated 2nd july 2009, barred the application of section 377 ipc (law of unnatural sex) to consensual adult homosexual relationships.] [25: section 354 is primarily used to prosecute sexual harassment.] [26: sakshi 2004, para 4] sakshi also submitted that article 15(3) of the constitution of india stipulates that the state can make special provisions in favour of women and children, under which power section 376(2)(f) ipc has been enacted which stipulates an aggravated penalty for the rape of girl-children below the age of 12. according to sakshi, the special provisions that the state is empowered to make must be adequate to serve the purpose, but the narrow definition of rape renders section 376(2)(f) ineffective in cases of child abuse involving other kids of rape. it is again true that as long as only one kind of rape is defined as rape by the law, child abuse involving other kinds of rape will fall through the cracks of law. but it is the same for sexual violence against adult women. therefore this argument of sakshi again somehow usurped the focus of the legal point from the need to acknowledge the sexual harms of all women to the need to protect girl-children. sakshi’s move here to focus its arguments on the plight of the girl-child had grave consequences for the outcome of the case – the judgment dealt at length with the issue of treatment of child victims of sexual violence in the criminal justice system. in my view, if the petition had not diluted the issue of whether women in general have the right to have their sexual harms acknowledged by the criminal law by concentrating disproportionately on the issue of child abuse, the court might not have found the easy way out. by easy way, i mean the way of making provisions in favour of protection of girl-children, often preferred by patriarchal institutions to make up their liberal credentials, than to make provisions that safeguard the sexual rights of women. another example of such preference for the easy way is the 172nd report of the law commission of india which advises against the deletion of the marital rape exemption on privacy grounds,[footnoteref:27] but instead proposes that the protection from marital rape that is available to girl-children below the age of fifteen should be extended to children until the age of sixteen. it is again preferred by the commission to extend its benevolence of ‘protection’ to women under the age of sixteen rather than to acknowledge the right of all women to be free from sexual violence in a marital relationship irrespective of their age. and this preference in all probability is due to the fact that protecting a female child from sexual violence, because she is not ready in mind and body, does not challenge the patriarchal ideas of male property in women’s sexuality the way recognising the independent sexual rights of adult women does. [27: ‘we are not satisfied that this exception should be recommended to be deleted since that may amount to excessive interference with the marital relationship’ – 172nd report of the law commission of india (2000), para 3.1.2.1] here i would like to clarify that i do not disagree with the fact that absence of appropriate criminal laws addressing child sexual abuse is a serious issue and that laws should be enacted and implemented to address it sufficiently. yet, in spite of its seriousness, it cannot usurp the other significant issue of whether the law acknowledges and upholds the sexual rights of women irrespective of their age. in the absence of sincere attention to the latter, a disproportionate focus on the former will only serve to hide the deeper inadequacies of law and mystify the actual reasons why laws dealing with child abuse have still not materialised six decades after independence. after long drawn deliberation, the court decided in 2004 that judicially broadening the scope of the said provision is not appropriate and instead urged the indian legislature to make laws to specifically deal with child abuse.[footnoteref:28] i will summarise here the key points of the supreme court’s judgment delivered on 26th may 2004. [28: sakshi v. union of india & ors. air 2004 sc 3566; 2004 supp(2) scr 723, para 42; i discuss this judicial focus on legislative measures regarding child abuse later in the paper.] the court referred to the ‘well settled principle’ of not reading words into the statute but gathering the legislative intent from a plain reading of the words used. it was held to be all the more ‘wrong and dangerous’ to substitute the words of a statute with other words if the statute concerned is a penal one.[footnoteref:29] it was not made clear what wrongs the broadened definition of rape would cause and on whom the potential dangers would lie. the court then went on to mention that the provisions under scrutiny have come up on numerous occasions before different courts in india at different points of time but a broadened definition of ‘rape’ has never been considered or accepted. the court also expressed its concern that widening the definition of rape would contravene the constitutional right of the accused under article 20(1) of the indian constitution, which guarantees that no person will be punished for a crime that did not exist at the time of its commission, i.e. an act that was not designated as a crime at the time of its commission.[footnoteref:30] the court agreed with the respondents that the broad definition of rape as laid down by the international criminal tribunal for former yugoslavia (henceforth icty)[footnoteref:31] in a judgment dated 10th december 1998,[footnoteref:32] did not apply in the present context as ‘the judgment is not at all concerned with interpretation of any provision of domestic law in peace time conditions.’[footnoteref:33] the court did not spare any words to refute the content of the icty’s broadened definition of rape or to justify how and why the domestic ‘peace time’ notion of rape in india needs to be different from the international ‘war time’ notion favoured by the icty. [29: sakshi 2004, para 26] [30: article 20(1), constitution of india] [31: official name – international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former yugoslavia since 1991] [32: prosecution v. anto furundzija, case no it-95-17/1-t (10th dec 1998) icty, para 185 – full judgment available at http://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf ] [33: sakshi 2004, para 28] as for the petitioner’s claim of giving a broader interpretation to the definition of ‘penetration’ in section 375 ipc purposively, to bring all forms of penetrative sexual violence within its ambit, the court concluded that such an exercise in the absence of any ambiguities in the definition of rape would be against the interest of society at large.[footnoteref:34] the interests of the larger society that the court was concerned about are summed up in the following passage from the judgment: [34: sakshi 2004, para 29] ‘it may be noted that ours is a vast and big country of over 100 crore people. normally, the first reaction of a victim of crime is to report the incident at the police station and it is the police personnel who register a case under the appropriate sections of the penal code. such police personnel are invariably not highly educated people but they have studied the basic provisions of the indian penal code and after registering the case under the appropriate sections, further action is taken by them as provided in code of criminal procedure. indian penal code is a part of the curriculum in the law degree and it is the existing definition of 'rape' as contained in s 375 ipc which is taught to every student of law. a criminal case is initially handled by a magistrate and thereafter such cases [which] are exclusively triable by court of session are committed to the court of session. the entire legal fraternity of india, lawyers or judges, have the definition as contained in s 375 ipc ingrained in their mind and the cases are decided on the said basis. the first and foremost requirement in criminal law is that it should be absolutely certain and clear. an exercise to alter the definition of rape, as contained in s 375 ipc, by a process of judicial interpretation, and that too when there is no ambiguity in the provisions of the enactment, is bound to result in good deal of chaos and confusion, and will not be in the interest of society of large.’[footnoteref:35] [35: sakshi 2004, para 29] the above judicial reasoning safeguards the interests of the police personnel who are assumed by the court to be ‘not highly educated’, the legal fraternity who apparently are unable to absorb and retain new legal developments and indeed the whole population of india who again supposedly will be disadvantaged by the uncertainty of the law caused by the broadening of the legal definition of rape. in my view, this is a condescending view of the police and legal community of india and a distorted understanding of the interest of the society. if the women victims of ‘other’ kinds of penetrative sexual violence, whose harms are invalidated by the narrow definition of rape, are part of the larger society, then it is problematic to say that ensuring their harms are recognised and redressed adequately is against the interest of the society. to me this reasoning comes across as a way of glossing over the glaring inadequacies of the current rape law in relation to the redress of ‘other’ kinds of rape and of circumventing the truly relevant arguments in the case. the inability of the law to safeguard the fundamental entitlement of a woman to have her harms recognised by the legal system she lives under is not addressed by the court. instead the remote interests of the ‘police personnel’, the ‘legal fraternity’ and the ‘wider society’ become the crux of the decision. the supreme court next concentrated its analytical energies on the rule of stare decisis – ‘…where a principle of law has become established by a series of decisions, it is binding on the courts and should be followed in similar cases. it is a wholesome doctrine which gives certainty to law and guides the people to mould their affairs in future’.[footnoteref:36] [36: sakshi 2004, para 30] further reference was made to a series of previous supreme court decisions, which have upheld this principle. it was emphasized that rules of law when ‘clearly’ laid down by a court of last resort must not be disregarded. so much of the court’s effort was spent analysing the degree of ‘clarity’ of the current definition of rape under section 375 that none was left to analyse its justifiability and constitutionality. the fact that the unjustness and unconstitutionality of the definition was challenged by the petitioner and not its ‘clarity’ was conveniently overlooked. the court admitted that the rule of stare decisis does not altogether forbid departure from it but the rule can only be bent if its application is found to perpetuate a grievous wrong.[footnoteref:37] in all other cases stare decisis must be strictly applied. it is clear then that the existing narrow definition of rape was not considered to be perpetuating any grievous wrong. the court finally ruled that the petition must fail for the following reasons – [37: sakshi 2004, para 31] ‘accepting the contention of the writ petitioner and giving a wider meaning of s 375 ipc will lead to a serious confusion in the minds of prosecuting agencies and the courts which instead of achieving the object of expeditiously bringing a criminal to book may unnecessarily prolong the legal proceedings and would have an adverse impact on the society as a whole.’[footnoteref:38] [38: sakshi 2004, para 33] at the same time the court accepted the petitioner’s claim that the absence of laws that adequately redress ‘other’ kinds of penetrative sexual violence affects female children most adversely because, as discussed earlier, apparently female children are most often raped in ‘other’ ways. again, i must admit that india truly and urgently needs appropriate criminal laws addressing the sexual abuse of children, yet the absence of such laws cannot be held to be the only problem with the narrow definition of rape. the current law makes an unfair and unconstitutional differentiation between different kinds of rapes and redresses some of them. as a result a considerable proportion of victims of sexual assaults are deprived of proper legal recourse. no amount of laws on child abuse can justify the continuance of this narrow definition. it might also seem that the supreme court was simply refusing to engage in judicial activism, insisting on sticking to its role of only implementing the existing laws and leaving the business of law-making to the parliament. but there are two problems with this interpretation of the court’s stance – firstly, the petition did not ask the court to make new law against the original intention of the legislature; on the contrary the petition asked the court to clarify an ambiguous term in the statute, and to give it an interpretation best suited to its constitutional obligation of safeguarding the fundamental rights of its people. secondly, the indian supreme court is no stranger to judicial activism. in spite of a fair dose of attendant controversies the supreme court has a sustained history of judicial activism.[footnoteref:39] an ex-supreme court judge writes – [39: u. baxi, ‘taking suffering seriously: social action litigation in the supreme court of india’, third world legal studies (1985) 107-132; s.p. sathe, ‘judicial activism: the indian experience’, journal of law & policy 6 (2001) 29-107; m. khosla, ‘addressing judicial activism in the indian supreme court: towards an evolved debate’, hastings international and comparative law review 32 (2009) 55-100] ‘…judicial activism is an undeniable part of the judicial process in a democracy and the only relevant question is what should be the degree and extent of judicial activism… [the supreme court of india] has invented an impressive range of concepts in both private and public law…. we in india are trying to move away from formalism and to use juristic activism for achieving distributive justice or, as we in india are accustomed to labelling it, “social justice”…. judges in india are not in an uncharted sea in the decision-making process. they have to justify their decision-making within the framework of constitutional values. this is nothing but another form of constitutionalism which is concerned with substantivization [sic] of social justice. i will call this appropriately “social activism”… the modern judiciary cannot afford to hide behind notions of legal justice and plead incapacity when social justice issues are addressed to it. this challenge is an important one, not just because judges owe a duty to do justice with a view to creating and molding [sic] a just society, but because a modern judiciary can no longer obtain social and political legitimacy without making a substantial contribution to issues of social justice.’[footnoteref:40] [40: bhagwati (1985-1985) above at note 7] in my view, this particular petition to broaden the definition of rape to safeguard the constitutional rights of women failed primarily because the woman envisaged in the relevant criminal law does not match the person who can claim his rights under indian constitutional law; and the court’s judgment, in its simplest purport, refused to align the construction of the woman in criminal law with that of the rights-holding person in constitutional law. this claim warrants explanation. it is clear that the woman in the criminal law is understood to be harmed only if she experiences vaginal-penile rape; all other kinds of penetrative sexual violence are not conceptualised as equally harmful. in fact they are thought to be so much less harmful that they are tried under inadequate laws like those of sexual harassment (outrage of the modesty of a woman) and homosexuality (unnatural sex), none of which were originally enacted for the purpose of prosecuting serious penetrative sexual assaults.[footnoteref:41] this idea of differential harm depending on the combination of the instrument of rape and the orifice invaded cannot be sustained when non-consensual sexual penetration is understood in terms of violation of the rights of the victim to her physical integrity and freedom from sexual invasion. in these terms it is immaterial whether the rapist’s penis invaded her vagina or her anus, or whether her vagina was violated by a penis or a bottle. yet the law in india understands them as different harms, which can only be justified on the basis of the idea of chastity. just as virginity of a virgin woman is affected only when her vagina is accessed by a man’s penis, the chastity of a non-virgin chaste woman (i.e. married woman) is affected only in one kind of penetrative sexual intercourse. therefore this one kind of sexual assault is the most harmful. the rest do not affect her chastity/virginity implying that they cannot be ‘rapes’; and so can be accommodated under legal provisions that are less serious and inadequate. the idea of chastity is inseparably associated with the patriarchal idea of male sexual property in women. a woman’s vagina and consequently her womb must be ideally accessed by one man, her married husband. any other man’s access is an affront to the husband’s (or future husband’s) property rights. rape laws in their earliest version were indeed property laws that forbade trespass into other men’s legitimate property rights in their own women.[footnoteref:42] [41: either section 354 or section 377 ipc; the inadequacies of these laws will be discussed in the feminist judgment.] [42: n. lacey, ‘unspeakable subjects, impossible rights: sexuality, integrity and criminal law’, canadian journal of law and jurisprudence 11(1) (1998) 47-68] in the sakshi judgment, the supreme court of india, through its refusal to broaden the definition of rape to ‘other’ kinds of penetrative sexual assaults, in effect lent its support to this understanding of rape as an attack on a woman’s chastity and hence on legitimate male sexual rights. the existing marital rape exemption in indian law too supports this explanation – there is no rape when a man sexually violates his wife, because the right to access her womb is already his. so in this conceptualisation of what is rape and what is not rape, the harm to a woman’s person is of no consequence. her personal harms are invalidated when it causes no corresponding harm to any man who holds sexual rights in her. in my view then, this construction of the woman does not match the concept of the person in the constitution who has the right to be equally treated by law as any other person; who also possesses the right to life with human dignity, which must include the right to be free from sexual violations; more so, when the same court has already named (vaginal–penile) rape and sexual harassment as violations of the constitutional right to life.[footnoteref:43] and because the court failed to construct the woman in criminal law as a person with constitutional rights, the interests of all kinds of other entities trumped her fundamental entitlement to have her harms of sexual violation validated by the law. the rule of stare decisis was upheld as no ‘grievous harm’ was held to be caused when the harm caused to her by penetrative sexual violence is graded on the basis of whether her chastity has been adversely affected. if the woman was constructed as a person, her rights to be free from all kinds of sexual violence would have been equally respected. in my view, the inordinate emphasis on the interests of the society, legal fraternity and police personnel in the judgment and the absence of any meaningful discussion about the effect of inadequate redress of sexual violence on the victim’s constitutional rights is the result of her absence as a legal person. [43: vishaka v. state of rajasthan air 1997 sc 3011] her presence as a victim subject here is no more than a white-wash. she is not the victim subject unless the harms recognised by law are her harms. as the law stands now, the harms redressed are male harms, therefore the victim here is the man whose woman has been raped. the other victim envisaged here might be the patriarchal social order that is protected through the rape law – a social order where men respect each other’s sexual property in their women. in other words, the law is serving the same purpose as the criminal law of trespass. in trespass laws, the property accessed illegitimately is not the victim. similarly, in indian rape law, the woman raped is not the victim. the judicial discourse on rape too, however well-packaged in the language of rights of the woman betrays a deep alignment with the patriarchal ideas of chastity and honour. the supreme court wrote in 2004 – ‘sexual violence apart from being a dehumanizing act is an unlawful intrusion [in] the right of privacy and sanctity of a female. it is a serious blow to her supreme honour and offends her self-esteem and dignity; it degrades and humiliates the victim …. a rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman, i.e. her dignity, honour, reputation and not the least her chastity.’[footnoteref:44] [44: state of himachal pradesh v. shree kant shekari air 2004 sc 4404] my alternative judgment will align the concept of the woman in criminal law with the constitutional person. she will be constructed as a holder of constitutional rights, and non-recognition and inadequate redress of her harms will be understood as violation of those rights. harms inflicted on a woman by sexual invasion will be conceptualised solely as her personal harms and not as property harms to related men. the court will decide in favour of bringing a disconnection between the patriarchal notion of harms to female chastity and the concepts of rape and sexual violence in law; and consequently will judge in favour of the petition. legal developments since the sakshi judgment the sakshi judgment was delivered by the supreme court of india in 2004. seven years on, at the time i am writing the feminist alternative to it, not all of the laws being referred to have remained static and unchanged. the most relevant of the laws that have changed since 2004 is the application of the criminal law of unnatural sex. section 377 ipc criminalised sexual intercourse against the order of nature, which included homosexual intercourse, sodomy and bestiality.[footnoteref:45] it was also used to prosecute rapes of ‘other’ kinds though the crime of unnatural intercourse did not depend on absence of consent. [45: section 377 ipc] in 2001, naz foundation, an ngo, filed a writ petition in the delhi high court challenging the constitutionality of section 377 in relation to consensual homosexual intercourse. this too was a pil brought under article 226 of the indian constitution which confers on all high courts in the country the power to enforce fundamental rights of individuals and groups by way of issuing writs. the petition by naz foundation was dismissed by the court in 2004 ‘on the ground that there is no cause of action in favour of the petitioner and that such a petition cannot be entertained to examine the academic challenge to the constitutionality of the legislation,’[footnoteref:46] whatever that means. the matter went to the supreme court on appeal. the supreme court by an order dated 3rd february 2006 set aside the high court’s decision of dismissal ‘observing that the matter does require consideration and is not of a nature which could have been dismissed on the aforesaid ground.’[footnoteref:47] the petition was remitted to the delhi high court for consideration. [46: naz foundation 2009, para 1] [47: naz foundation 2009, para 1 ] on 2nd july 2009, the high court declared that the criminalisation of consensual sexual activity of adults in private indeed violates articles 21 (right to life), 14 (right to equal legal treatment) and 15 (right to non-discriminatory treatment by the state) of the constitution.[footnoteref:48] section 377 ipc will continue to be applicable in cases of non-consensual non-vaginal-penile penetrative sexual violence until the parliament chooses to amend the law to make better provisions for these ‘other’ kinds of rapes.[footnoteref:49] [48: for an online version of india’s constitution, see www.lawmin.nic.in/legislative/art1-242%20(1-88).doc ] [49: naz foundation 2009, para 132] so as the law stands now, section 377 applies to only penetrative sexual violence of the ‘other’ kinds and not to consensual sex. this solves the problem for persons seeking de-criminalisation of homosexual intercourse and is indeed a legal landmark in the struggle to attain recognition for the constitutional rights of sexual minorities. but this does not solve the problem of inadequate redress for ‘other’ kinds of rapes. the fact that section 377 now only applies to non-consensual sex with adults and consensual or non-consensual sex with minors has brought the factor of consent into play here, which was absent from the earlier version of the provision and which is perfectly desirable. yet the provision still marks ‘other’ kinds of rapes and hence sexual intercourse as ‘unnatural’, and separates them from the ‘proper’ kind of rape and hence sexual intercourse which is penile-vaginal. in spite of the remarkable and extremely important 2009 high court judgment in the naz foundation case, a feminist alternative version of the sakshi judgment is still relevant as the division of natural and unnatural rapes, hence natural and unnatural sex is steeped in the patriarchal ideas of compulsory heterosexuality and male sexual property in women, and is unsustainable from a feminist point of view. the current narrow definition of rape still needs to be contested. the high court decision also says that this partial application of section 377 will hold until the parliament makes the necessary amendments in the law to implement the recommendations of the 172nd report of the law commission of india[footnoteref:50] which the court thinks will remove ‘a great deal of confusion.’[footnoteref:51] this report has recommended a complete overhaul of the rape laws into the following provision on sexual assault. according to the high court –‘pertinently, the major thrust of the recommendation is on the word ‘person’ which makes the sexual offences gender neutral unlike gender specific as under the ‘rape laws’ which is the current position in statute book.’[footnoteref:52] i will not go into a detailed discussion of this recommended gender neutral law of sexual assault, both because such a law has still not been enacted, and also because i do not want the current paper on the alternative feminist judgment to sakshi v. union of india to go off on a tangent from its central focus. yet i would like to quote what ngaire naffine has to say on the gender neutral laws of sexual assault in australia – [50: law commission of india, 172nd report on the review of rape laws (2000), para 3.1.2., for an online version see http://lawcommissionofindia.nic.in/rapelaws.htm (last accessed 25.10.2011)] [51: naz foundation 2009, para 132 ] [52: naz foundation 2009, para 83] ‘in the modern australian law of rape, men and women are now formal equal legal subjects (and objects). each is now recognised to have the ability to rape the other… the liberal solution to equal sexual rights for women has been to effect a crude reversal and reciprocity of sex rights and responsibilities – to make women the same as men. the modern grant of sexual subjectivity to women, taken to its logical liberal end, as australia has done, seems to entail the legal recognition of women’s sexual ability to rape. women are now seen to have so much potency to do what it was once thought only men could do to women that there now needs to be a law to prevent us from doing this to men. what this neatly steps around is the nature of the male violence which (ostensibly) rape laws are designed to punish. … the published crime statistics make clear that it is still men who rape women, while the unofficial statistics reveal that most women feel too powerless to do anything about it. and so what could be read as a recognition of the potential sexual power of women has (of course) not turned women into rapists. the gender neutrality of the new laws only mystifies the profoundly sexed nature of the crime of rape and the unequal nature of the society which allows it to occur. indeed, the new laws seem no longer to be about the very behaviour that the crime of rape was meant to proscribe.’[footnoteref:53] [53: n. naffine, ‘possession: erotic love in the law of rape’, modern law review 57(1) (1994) 10-37 at 24-25] guidelines to feminist judgment-writing before i embark on the exercise of writing the feminist judgment, some general points about the technicalities of judgment writing must be made. firstly, i am following the indian judicial convention here of outlining the primary arguments of the parties in detail before stating the court’s own opinion about the points in contention. accordingly the ensuing judgment starts with a detailed outline of the arguments put forward by the petitioner, followed by the arguments submitted by the respondents and then ultimately followed by the court’s own reasoning leading to its decision. so i would request the reader not to mistake the initial paragraphs to be the court’s own reasoning. i have made every effort to make clear at the beginning of each paragraph whose argument is being presented. secondly, as it is a judgment and not a case note or article, the mode of presentation is fundamentally different.[footnoteref:54] feminist scholars most often are mindful of their own positionality and the non-universality of their positions. a nuanced, self-reflexive approach is the hallmark of effective feminist writing. yet, in a feminist judgment, the judge’s voice has to attain and maintain the authority that will sustain its credibility. therefore it may not be possible to acknowledge the positionality of the feminist judge or other possible alternative approaches in the judgment. moreover as there are many strands of feminism, my feminist judgment may not be able to encompass all feminist positions or theorisations. it is one of many feminist judgments that are possible on a certain case. but that too cannot be acknowledged within the judgment. in gist, even though the stated aim of the writing of the feminist judgment is to expose the positionality of the original judges, it is not done in the usual way of critiquing their positionality; it is simply done by providing one of the many possible alternatives to the original judgment. in her introduction to the women’s court of canada, diana majury writes – [54: d. majury, ‘introducing the women’s court of canada’ at http://womenscourt.ca/wp-content/uploads/2009/12/majury-intro.pdf (accessed 16.10.2011) at 9] ‘one of our points in writing these decisions is to demonstrate that the supreme court of canada decision in each of these cases is but one of many decisions that could have been written. the same of course applies to the decisions of the women’s court of canada. we hope that future judges of the women’s court, as well as others, will review our decisions and challenge, extend, or revise our equality analysis.’[footnoteref:55] [55: majury, ‘introducing the women’s court of canada’ at 8] thirdly, again because this is a judgment and not a critical case-note, the voice that speaks has to be decisive and not suggestive.[footnoteref:56] in my judgment i have taken care so that the judge’s voice may sound more authoritative than that of a legal scholar. this is an emulation of the actual voices that speak judgments in indian courts and is necessary to be adopted in order to make the feminist alternative as close as possible in style to an original judgment by the indian judiciary. [56: hunter, mcglynn and rackley (eds.) (2010) at 15] fourthly, i have not referred to feminist theories within the judgment. this is because a too overt assertion of the theoretical lenses used by the judge may destabilise the authority of the view taken through the lens. my judgment is not intended to be a discourse on feminist theories. it is, on the contrary, a judicial decision taken from a feminist viewpoint. the allusions to feminist theorisations are kept to the minimum, so that it can compete in credibility and authority with the original patriarchal judgment which does not of course acknowledge its positionality. rosemary hunter writes regarding the place of feminist theorising in feminist judgments – ‘as a technical matter, feminist or any other kind of scholarship does not constitute legal authority, and thus cannot form part of the ratio of a judge’s decision. what is important is the account of the facts, the exposition of the law, and the application of the latter to the former. empirical research and policy material may properly be incorporated as part of the reasoning process involved in the performance of these tasks, but the philosophical approach underlying their execution does not form part of the judgment itself. …feminist judging is not about theorising, but requires moving from theory to practice.’[footnoteref:57] [57: r. hunter (2010) at 42] and finally, as this is a 2004 judgment of the supreme court of india, i have not incorporated any legal developments since. for example, as discussed earlier in the paper, in 2009 the law criminalising ‘unnatural’ sexual intercourse among consenting adults was declared unconstitutional by the delhi high court.[footnoteref:58] but i have not talked about it in the judgment as it is intended to be an alternative judgment that the court could have written in 2004 if women’s rights were afforded the importance warranted under the constitutional mandate. [58: naz foundation v. government of nct of delhi, wp(c) no.7455/2001, delhi high court ] the feminist judgment sakshi v union of india equivalent citations – air 2004 sc 3566; 2004 (2) ald cri 504; [2004] 3 lri 242 writ petition (crl) no. 33 of 1997 (under article 32, constitution of india) with slp (crl) nos. 1672-1673 of 2000 supreme court of india (civil original jurisdiction) decision date: 26 may 2004 bench – m. mukherjee j. judgment: m. mukherjee j. – [1] this public interest litigation under article 32 of the indian constitution has been filed by sakshi, a charitable support organisation for providing legal, medical, psychological, residential and other support to women, especially to victims of sexual violence. the respondents named in the petition are – 1. union of india 1. ministry of law and justice, and 1. commissioner of police, new delhi. [2] the reliefs claimed by the petitioners are to – 1. declare by appropriate writ or direction that the definition of ‘sexual intercourse’ in section 375 of the indian penal code 1860 (henceforth ipc) shall include all forms of penetrative sexual acts such as vaginal-penile, oral-penile, anal-penile, vaginal-finger, anal-finger, anal-object and vaginal-object penetration; 1. consequently issue a writ, order or direction to the respondents and its servants and agents to register all cases of penetrative sexual violence as offences falling within the broadened interpretation of sexual intercourse under section 375 ipc 1860; 1. issue such other writ, order or direction, as the court may consider appropriate. [3] in the petition, the petitioner professes growing concern at the striking growth in incidences of sexual violence towards women and children in india in recent times. in response to this growing trend, the respondents have increasingly implemented sections 354 (outraging the modesty of a woman), 375/376 (rape) and 377 (unnatural sexual intercourse) ipc for prosecuting these offences. it is submitted that the respondents apply the rape provisions in sections 375/376 ipc only for the prosecution of sexual violence that involves penile penetration of the vagina. all other types of penetrative sexual violence (henceforth referred to as psv) are treated as lesser offences and prosecuted under sections 354 and 377 of the ipc. the petitioner claims that the offences of sexual abuse of children and women that often involve psv other than vaginal-penile are no less traumatic for the victims. therefore they should be brought within the ambit of the definition of rape under section 375 ipc. [4] the petitioner argues that the narrow interpretation of rape in the ipc as involving only vaginal-penile penetration does not conform with the contemporary understanding of rape as an act aimed at sexually humiliating, violating and degrading a woman or child, adversely affecting their sexual integrity and autonomy. [5] the petitioner refers to the established body of feminist theory which argues rape to be an act of violence with intent to degrade and humiliate the victim and not merely a sexual act. the petitioner quotes feminist scholar susan brownmiller – ‘…in rape …the intent is not merely to “take”, but to humiliate and degrade… sexual assault in our day and age is hardly restricted to forced genital copulation, nor is it exclusively a male-on-female offence. tradition and biologic opportunity have rendered vaginal rape a particular political crime with a particular political history, but the invasion may occur through the mouth or the rectum as well. and while the penis may remain the rapist's favourite weapon, his prime instrument of vengeance… it is not in fact his only tool. sticks, bottles and even fingers are often substituted for the “natural” thing. and as men may invade women through other orifices, so too, do they invade other men. who is to say that the sexual humiliation suffered through forced oral or rectal penetration is a lesser violation of the personal, private inner space, a lesser injury to mind, spirit and sense of self?’ (susan brownmiller, against our will, 1986) [6] the petitioner further submits that the term ‘sexual intercourse’ has not been defined in section 375 ipc. therefore it is open to judicial interpretation. moreover, the ipc does not define the term ‘penetration’ as only vaginal-penile penetration. therefore the term ‘penetration’ too can be interpreted by the court to include all types of sexual penetration. the wording of the definition of rape contained in section 375 ipc is in itself wide enough in scope to cover all kinds of penetrative sexual violence. the narrow interpretation of the definition by the respondent authorities particularly defeats the purpose of the criminal law amendment act 1983 that inserted sub-section (2)(f) in section 376 ipc.[footnoteref:59] [59: s. 376(2)(f) provides for increased punishment for rape of a girl below 12 years of age.] [7] the petitioner claims that the narrow interpretation of rape denies victims of sexual abuse access to justice and thus violates their fundamental rights under articles 14[footnoteref:60] and 21[footnoteref:61] of the constitution. [60: article 14: ‘equality before law – the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of india prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.’] [61: article 21: ‘protection of life and personal liberty – no person shall be deprived of his life or personal liberty except according to procedure established by law’, interpreted as the right to life with human dignity by the supreme court of india.] [8] the petitioner further submits that the respondent authorities have failed to take into account the legislative purpose of section 377 ipc.[footnoteref:62] this provision was enacted for criminalising certain kinds of homosexual intercourse and using it for prosecuting penetrative sexual violence is against its legislative purpose. the petitioner refers to the law commission report (no. 42) of 1971[footnoteref:63] where the commission discusses the relevance of section 377 only in relation to homosexual offences (pages 280-282). [62: s. 377 ipc – ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine. explanation – penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.’] [63: 42nd report of the law commission of india, ‘indian penal code’, june 1971] [9] in light of the law commission’s statement regarding the purpose of section 377 ipc, the petitioner claims that the respondents have been wrongly prosecuting cases of psv under the section. penetrative sexual assaults are crimes of violence and not of moral turpitude as may seem from their prosecution under section 377. the respondents have wrongly stretched the meaning of ‘unnatural sexual offences’ to bring penetrative sexual assaults within its purview and have trivialised serious cases of sexual assault by equating them with the offence of ‘consensual homosexuality’. this trivialisation too is a violation of the victims’ fundamental rights to equality under article 14 and to life with human dignity under article 21 of the constitution. [10] it is also submitted by the petitioner that article 15(3) of the constitution of india permits the state to make special provisions for women and children. ‘special provision’ necessarily implies ‘adequate’ provision. the narrow interpretation of rape under sections 375/376 used by the respondent authorities and their agents have rendered the effect of the ‘special provision’ under section 376(2)(f)[footnoteref:64] meaningless and ineffective in certain cases, which is a violation of article 15(3) of the constitution of india. [64: s. 376(2)(f) ipc specifies increased punishment for rape of girls below 12 years of age] [11] the petitioner further refers to the united nations convention on right of the child (crc) ratified by the union of india (respondent no. 1) on 11th december 1992 and the united nations convention on the elimination of discrimination against women (cedaw) ratified by the same respondent on 9th july 1993. consequently, respondent no. 1 and the other respondents, as agents of respondent no. 1, have an international legal obligation to honour its commitments under the respective conventions. in the present case the narrow interpretation of rape imposed by the respondents and their other agents completely violates such commitments. [12] the petitioner has also argued that section 375 ipc should be interpreted in relevance to recent times when child abuse has assumed alarming proportions. in support of the submission, the petitioner has referred to f.a.r. bennion’s statutory interpretation (butterworths 1984) at page 355-356: ‘while it remains law, an act is to be treated as always speaking. in its application on any date, the language of the act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law. … it is presumed that parliament intends the court to apply to an ongoing act a construction that continuously updates its wording to allow for changes since the act was initially framed. in particular where, owing to developments occurring since the original passing of an enactment, a counter-mischief comes into existence or increases, it is presumed that parliament intends the court so to construe the enactment as to minimise the adverse effects of the counter-mischief.’ [13] in this connection, the petitioner has also referred to s. gopal reddy v. state of a.p. 1996 scc (4) 596, the court quoted the following words of lord denning in seaford court estates v. asher [1949] 2 all er 153 – ‘... it would certainly save the judges trouble if acts of parliament were drafted with divine prescience and perfect clarity. in the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. he must set to work on the constructive task of finding the intention of parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give “force and life” to the intention of the legislature ... a judge should ask himself the question: if the makers of the act had themselves come across this ruck in the texture of it, how would they have straightened it out? he must then do as they would have done. a judge must not alter the material of which the act is woven, but he can and should iron out the creases.’ [14] accordingly, the court in s. gopal reddy held that it is a well-known rule of interpretation of statutes that the text and the context of the entire act must be looked into while interpreting any of the expressions used in a statute and that the courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the act, and a purposive approach is necessary. [15] in support of the claim for purposive interpretation of section 375 ipc, the petitioner has also made reference to directorate of enforcement v. deepak mahajan and anr. air 1994 sc 1775, where the court held that a mere mechanical interpretation of the words devoid of concept or purpose will reduce most legislation to futility and that it is a salutary rule, well established, that the intention of the legislature must be found by reading the statute as a whole. accordingly, certain provisions of foreign exchange regulation act (fera), which has since the current petition been replaced by the foreign exchange management act (fema) in 2000, and the customs act were interpreted keeping in mind that the said enactments were enacted for the economic development of the country and the augmentation of revenue. the court did not accept the literal interpretation suggested by the respondent therein and held that sub-section (1) and (2) of section 167 criminal procedure code (crpc) are evenly applicable with regard to the production and detention of a person arrested under the provisions of section 35 of fera and section 104 of the customs act and that a magistrate has jurisdiction under section 167(2) crpc to authorise the detention of a person arrested by an authorised officer of the enforcement directorate under fera and taken to the magistrate in compliance with section 35(2) of fera. [16] the petitioner has submitted that such a purposive judicial approach to the interpretation of statutes has been adopted in countries like the uk and south africa to prevent offenders slipping out of the loopholes in law. some decisions of the house of lords have been cited to support the claims, the most notable being r v. r (1991) 4 all er 481 where it was held that the marital rape exemption can no longer form part of the law of england as the proposition that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances is unacceptable under modern socio-moral standards. hence the word ‘unlawful’ in the definition of rape in section 1(1) of the sexual offences (amendment) act 1976, is to be interpreted as mere surplusage and not as meaning ‘outside marriage’, as it is clearly unlawful to have sexual intercourse with any woman without her consent. [17] the other decision cited by the counsel for the petitioner is regina v. burstow and regina v. ireland [1997] 4 all er 225 where a person accused of repeated silent telephone calls to women accompanied on occasion by heavy breathing was held guilty of causing psychiatric injury amounting to bodily harm under section 42 of the offences against the person act 1861. in the course of the discussion, lord steyn observed that criminal law has moved on in the light of a developing understanding of the link between the body and psychiatric injury and, as a matter of current usage, the contextual interpretation of ‘inflict’ can embrace the idea of one person inflicting psychiatric injury on another. the petitioner has laid emphasis on the following passage in the judgment: ‘the proposition that the victorian legislator when enacting sections 18, 20 and 47 of the act of 1861, would not have had in mind psychiatric illness is no doubt correct. psychiatry was in its infancy in 1861. but the subjective intention of the draftsman is immaterial. the only relevant enquiry is as to the sense of the words in the context in which they are used. moreover the act of 1861 is a statute of the “always speaking” type: the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury.’ [18] the counsel for the petitioner has also referred to a decision of the constitutional court of south africa in national coalition for gay and lesbian equality and ors. v. the minister of home affairs and ors. (case cct 10/99) wherein it was held that section 25(5) of the aliens control act 96 of 1991, by omitting to confer on persons, who are partners in permanent same-sex life partnerships, the benefits it extends to spouses, unfairly discriminates, on the grounds of their sexual orientation and marital status, against partners in such same-sex partnerships who are permanently and lawfully resident in the republic. such unfair discrimination limits the equality rights of such partners guaranteed to them by section 9 of the constitution and their right to dignity under section 10. it was further held that it would not be an appropriate remedy to declare the whole of section 25(5) invalid. instead, it would be appropriate to read in, after the word ‘spouse’ in the section, the words ‘or partner, in a permanent same-sex life partnership’. for similar reasoning, in relation to the increased incidence of child abuse in recent times, it has been argued that the words ‘sexual intercourse’ in section 375 ipc must be given a larger meaning than has been traditionally understood. [19] the petitioner has, furthermore, placed before the court judgments dated 10th december 1998 and 22nd february 2001 by the international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former yugoslavia since 1991 (icty). under article 5 of the statute of the international tribunal, rape is a crime against humanity. rape may also amount to a grave breach of the geneva conventions, a violation of the laws or customs of war or an act of genocide if the requisite elements are met, and may be prosecuted accordingly. the trial chamber took note of the fact that no definition of rape could be found in international law and therefore formulated the following definition: ‘… the trial chamber finds that the following may be accepted as the objective elements of rape: (i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of a mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victim or a third person.’ in the second judgment of the trial chamber dated 22nd february 2001, the interpretation of rape which focussed on serious violations of a sexual autonomy was accepted. [20] mrs. g. mukerjee, director in the ministry of home affairs, has filed the counter-affidavit on behalf of respondents nos. 1 and 2. the main points of the counter-affidavit are – 1. that the respondents have kept in mind their obligation under article 15(3) to make special/adequate provisions for women and children. sections 375 and 376 have been substantially changed by the criminal law (amendment) act 1983. the same act has also introduced several new sections viz. 376a, 376b, 376c and 376d ipc. these amendments have been effected with a view to provide special/adequate provisions for women and children. 1. the term ‘rape’ has been clearly defined under section 375 ipc and there is little scope for confusion as to the purported meaning of the offence. 1. penetrations other than vaginal-penile penetration are unnatural sexual offences. section 377 provides severe punishments for such offences. the punishment provided under section 377 is imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. punishment under section 377 is no less severe than that provided for rape in section 376. therefore, it cannot be said that penetrative sexual violence other than vaginal-penile rape is not dealt with seriously by the respondent authorities. the offences as mentioned by the petitioner i.e. anal-penile penetration, oral-penile penetration, anal-finger penetration, vaginal-finger penetration or vaginal-object penetration are serious sexual offences of unnatural nature and are sufficiently covered under section 377 which provides stringent punishment. therefore, the plea of the petitioner that offences under section 377 are treated as lesser offences is incorrect. 1. sections 354 and 506 have been framed with a view to punish the lesser offence of criminal assault in the form of outraging the modesty of a woman. section 354 ipc provides for punishment for assault or criminal force on a woman to outrage her modesty. unnatural sexual offences cannot be brought under the ambit of this section. 1. section 376(2)(f) provides stringent punishment for committing rape on a woman when she is under the age of 12 years. but child sexual abuse other than vaginal-penile penetration is obviously unnatural and is to be dealt with under section 377 ipc. rape defined under section 375 is vaginal-penile penetration and all other sorts of penetrations are considered to be unnatural sexual offences. section 377 provides stringent enough punishment to adequately deal with such offences. 1. it is denied that current interpretation of sections 375, 376 and 377 violate the fundamental rights under articles 14, 15(3) and 21 of the constitution of india. sections 375 and 376 clearly deal with only penile-vaginal rapes and all types of unnatural sexual offences are adequately dealt with under section 377 ipc. [21] shri r.n. trivedi, additional solicitor general, appearing for the respondents, has submitted the following – 1. the international treaties ratified by india can be taken into account for framing guidelines in respect of the enforcement of fundamental rights but only in the absence of municipal laws as held in vishaka v. state of rajasthan air 1997 sc 3011 and lakshmi kant pandey v. union of india air 1984 sc 469. in the presence of existing law, subsequent ratification of international treaties would not render existing municipal laws ultra vires of treaties in cases of inconsistency. in such an event the state through its legislature may modify the law to bring it in accord with treaty obligations. such matters are in the realm of state policy and are, therefore, not enforceable in a court of law. it has been further submitted that in international law, ratified treaties can be deemed incorporated in customary law but only if the former are consistent with the domestic laws or decisions of its judicial tribunals. 1. the decision of the icty cannot be used for interpretation of section 354 and 375 ipc and other provisions, due to the limited temporal and territorial jurisdiction of icty. even decisions of the international court of justice (henceforth icj) are binding only on the parties to a dispute in view of articles 92, 93 and 94 of the un charter and articles 59 and 63 of the icj statutes. 1. no writ of mandamus can be issued to the parliament by the judiciary to amend any law or to bring it in accord with treaty obligations. it is also submitted that sections 354 and 375 ipc have been interpreted in innumerable decisions of various high courts and also of the supreme court and the consistent view is that to hold a person guilty of rape, penile penetration is essential. the law on the point is similar both in england and usa. in state of punjab v. major singh 1966 (supp) scr 266 it was held that if the hymen is ruptured by inserting a finger, it would not amount to rape. 1. a writ petition under article 32 of the constitution would not lie for reversing earlier decisions of the court on the supposed ground that a restrictive interpretation has been given to certain provisions of a statute. [22] the respondents have placed reliance on volume 11(1) of halsbury's laws of england para 514 (butterworths 1990) wherein unlawful sexual intercourse with a woman without her consent has been held to be an essential ingredient of rape. reference has also been made to volume 75 corpus juris secundum para 10, wherein it is stated that sexual penetration of a female is a necessary element of the crime of rape, but the slightest penetration of the body of the female by the sexual organ of the male is sufficient. [23] the respondents have also referred to the principles of public international law by ian brownlie, where the author, after referring to some decisions of the english courts has expressed an opinion that the clear words of a statute bind the court even if the provisions are contrary to international law and that there is no such thing as a standard of international law extraneous to the domestic law of a kingdom and that international law as such can confer no rights cognisable in the municipal courts. [24] the counsel for the respondents has also referred to dicey and morris on the conflict of laws wherein, in the chapter on the enforcement of foreign law, the following rule has been stated: ‘english courts will not enforce or recognise a right, power, capacity, disability or legal relationship arising under the law of a foreign country, if the enforcement or recognition of such right, power, capacity, disability or legal relationship would be inconsistent with the fundamental public policy of english law.’ with regard to penal law, it has been stated as under: ‘the common law considers crimes as altogether local and cognisable and punishable exclusively in the country where they are committed… chief justice marshall, in delivering the opinion of the supreme court, said: “the courts of no country execute the penal laws of another”.’ [25] this court on 13th january 1998 referred the matter to the law commission of india for its opinion on the main issues in the petition, namely, whether all forms of psv should come within the ambit of section 375 ipc and whether any change in statutory provisions is advisable. the law commission considered the matters in its 172nd report[footnoteref:65] and recommended substitution of the rape laws altogether with the laws of ‘sexual assault’ in the ipc. the criminal provision for sexual assault will contain other kinds of psv within its ambit.[footnoteref:66] as is evident, these amendments can only be done by the legislature; therefore the law commission did not favour the widening of the meaning of ‘penetration’ by judicial interpretation, though it agreed in principle with the arguments of the petitioner. [65: 172nd report of the law commission of india, ‘review of rape laws’, 2000] [66: para 3.1.2, 172nd report of the law commission of india, 2000] [26] relevant here is an earlier report (156th report)[footnoteref:67] of the commission. initially, after the referral on 13th january 1998, the law commission by an affidavit dated 25th march 1998 brought to the notice of this court that the 156th report of 1997 has dealt, inter alia, with the issues raised in the current petition. on the court’s insistence that the commission deals with the precise issues of the current petition anew, the 172nd report was born. the following are the relevant extracts from the commission’s recommendations from the earlier report – [67: 156th report of the law commission of india, 1997] ‘9.59 sexual-child abuse may be committed in various forms such as sexual intercourse, carnal intercourse and sexual assaults. the cases involving penile penetration into vagina are covered under section 375 of the ipc. if there is any case of penile oral penetration and penile penetration into anus, section 377 ipc dealing with unnatural offences, i.e., carnal intercourse against the order of nature with any man, woman or animal, adequately takes care of them. if acts such as penetration of a finger or any inanimate object into vagina or anus are committed against a woman or a female child, the provisions of the proposed section 354 ipc whereunder a more severe punishment is also prescribed, can be invoked and, as regards the male child, the penal provisions of the ipc concerning 'hurt', 'criminal force' or 'assault' as the case may be, would be attracted. a distinction has to be naturally maintained between sexual assault/use of criminal force falling under section 354, sexual offences falling under section 375 and unnatural offences falling under section 377 of the indian penal code. it may not be appropriate to bring unnatural offences punishable under section 377 ipc or mere sexual assault or mere sexual use of criminal force which may attract section 354 ipc within the ambit of 'rape' which is a distinct and graver offence with a definite connotation.’ [27] regarding section 377 ipc, the law commission recommended that in view of the on-going instances of sexual abuse in the country where unnatural offences are committed on persons under the age of eighteen years, there should be a minimum mandatory sentence of imprisonment for a term not less than two years but may extend to seven years and a fine, with a proviso that for adequate and special reasons to be recorded in the judgment, a sentence of less than two years may be imposed. [28] therefore, the legal questions under contention in the current case before the court are – 1. whether the definition of ‘rape’ under section 375 ipc should include all kinds of penetrative sexual violence; 1. whether the narrow interpretation of the term ‘rape’ by the respondent authorities violates the victim’s fundamental rights under articles 14, 15(3) and 21 of the constitution; 1. whether this court can use its power of judicial review to widen the interpretation of ‘rape’; 1. whether widening the definition will amount to a violation of the rule of stare decisis which will adversely affect the stability of the criminal law; 1. whether the state’s commitments under international law may be taken in consideration in judicial decisions even if the legislature has not implemented the international commitments into municipal laws; 1. whether decisions of courts in other common law jurisdictions may influence domestic judicial decisions; and 1. whether the decisions of international courts may influence domestic judicial decision-making in india. [29] the first point of contention is the meaning of the term ‘rape’. should penile penetration of the vagina be essential to constitute the offence of rape? to answer this, we must get to the root of the differentiation between vaginal-penile ‘rape’ and other kinds of psv (the not-rapes). the law commission, in its 156th report, says – ‘a distinction has to be naturally maintained between sexual assault/use of criminal force falling under section 354, sexual offences falling under section 375 and unnatural offences falling under section 377 of the indian penal code.’ the commission describes vaginal-penile rape under section 375 ipc as a ‘distinct and graver offence with a definite connotation.’ [30] the assumptions behind the commission’s opinion are – vaginal-penile rape is ‘naturally’ distinct from other kinds of psv; and vaginal-penile rapes are graver violence than all other psv and somehow that special gravity is connected with the ‘definite connotation’ attached to vaginal-penile rapes. the commission does not expand on what it means by the natural distinction between the various kinds of psv or the definite connotation of vaginal-penile rape or on why vaginal-penile rape is seen as the graver one. [31] this court deems it necessary to clarify this ‘natural distinction’ between different kinds of psvs. historically, the law of rape was concerned with the theft of a woman’s virginity (if she is unmarried) or chastity (if she is married). just as a woman’s virginity is lost only when a penis accesses her vagina, and not when it accesses her anus or mouth, so too is the case of chastity. a woman’s chastity is perceived to be lost only in one kind of psv – vaginal-penile rape. a woman’s virginity and chastity are preserved as long as her vagina is not accessed by the penis of a man other than her legally married husband. chastity therefore is not mere sexual faithfulness in marriage but exclusive sexual access to the wife’s vagina by the husband. anal rape or forced fellatio do not affect a woman’s virginity, and nor do they affect her chastity in case she is married. this is where vaginal-penile rape gets its traditional ‘definite connotation’ from. it is a graver offence because it affects a woman’s status as ‘exclusive to one-man’. [32] the understanding of rape as taking away of a woman’s chastity is likely to have stemmed from a patriarchal concern to ascertain a child’s paternity. a woman who is sexually exclusive will give birth to the offspring of one man. the concern for sexual ‘purity’ of a woman is a way of controlling and channelling female sexuality (and reproductive capacity) to serve patriarchal interests – maintaining the patrilineal family line. the woman in india very rarely maintains her own familial line. her children cannot take forward her father’s lineage; they continue her husband’s familial line. to ascertain the paternity of her children she must be exclusive to one man. vaginal-penile rape within this understanding is an interference with the essential sexual exclusivity of a woman. for the same reason the indian penal code does not criminalise husbands who rape their wives. [33] so the emphasis here is not on the personal harm of the woman, but on whether her chastity is affected by the rape. psv that does not involve the penis and vagina does not affect her chastity; hence it is not termed rape. as marital rape does not violate a husband’s right to exclusive access to his wife’s sexuality and reproductive capacity, it is not criminalised. as only non-marital vaginal-penile sexual violence affect a woman’s ability to be ‘exclusive to one man’ in present or in future, it is termed rape and criminalised. [34] this classification may have seemed reasonable at the time this law was brought into force, yet it should not be continued as law in today’s context. every person within the territory of india has the constitutional right to demand equal protection from the laws. a woman who is sexually violated has the right to demand redress for the violation of her bodily and sexual integrity irrespective of whether her (present or future) husband’s right to exclusive sexual access to her is affected or not. she is entitled to redress for the harm that has been inflicted on her physical and mental state and for the infringement of her right to privacy and sexual autonomy. [35] a woman, irrespective of her marital status, has the right to decide when, where and with whom she wants to participate in sexual intercourse and the law must protect that right with its full force. and having sex can include all kinds of penetrative sexual acts. sexual penetration when non-consensual is injurious because of the absence of consent and not because of the particular combination of body parts. therefore, there is no reason to believe that insertion of penis into the anus or mouth of the woman and the insertion of other things like a finger or inanimate objects into the vagina and anus of the woman are lesser injuries than the insertion of penis into a woman’s vagina. [36] this court agrees that there is ample reason why the definition of rape in section 375 should include anal-penile, anal-object, anal-finger, vaginal-finger, vaginal-object, and oral-penile psv along with vaginal-penile psv. and even if there are other provisions in the ipc that adequately redress these other kinds of violations, there is no justification for maintaining the distinction between vaginal-penile rape and the other kinds. the very distinction indicates the patriarchal essence of rape as an offence against the male right to exclusive access to a womb. the offence of rape must be reformulated as harm against the person of a woman; as an infringement to her right to choose when, where and with whom she wants to act sexually; and a violation of her integrity as a person. and in this understanding there is no distinction between the different kinds of penetrative sexual violence. they all equally violate the woman. [37] the respondents argued that there are provisions other than section 375 which adequately deal with the other kinds of psv. for reasons stated earlier adequate redress by other provisions should not affect the decision whether to broaden the definition of rape. the definition of rape should include all kinds of psv primarily because of the need to effect a shift in the understanding of rape as a violation of chastity to a violation of individual rights to personal integrity and sexual choice. at the same time, the related and relevant question of whether acts of psv other than vaginal-penile rapes are adequately redressed by the current law needs to be settled. [38] the two provisions that presently deal with other kinds of psv are sections 354 and 377 ipc. section 354 criminalises the application of criminal force to a woman with intent to outrage her modesty. the maximum punishment stipulated is imprisonment for two years and/or fine. in this court’s view this provision is not adequate to deal with any kind of psv as the wording is ambiguous and the punishment negligible. modesty has not been defined in the statute. this court has attempted to define the term in the recent case of aman kumar and anr. v. state of haryana 2004 air sc 1497 in the following way –‘modesty can be described as the quality of being modest; and in relation to women, “womanly propriety of behaviour; scrupulous chastity of thought speech and conduct”. it is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.’ the online version of the oxford english dictionary defines ‘modest’ as – ‘(of a woman) dressing or behaving so as to avoid impropriety or indecency, especially to avoid attracting sexual attention; (of clothing) not revealing or emphasizing a person's figure’. the idea of a woman’s modesty therefore is intimately connected to the ideas of ‘scrupulous chastity’, ‘womanly propriety of behaviour’, ‘decency’, etc. therefore, outrage of a woman’s modesty actually means the outrage of her decency, chastity and sense of propriety. to reiterate the same point made before, offences as serious as psv needs to be disconnected from patriarchal ideas of chastity and modesty of a woman as they are fundamentally opposed to our constitutional ideas of individual rights and the equality of the sexes. psv of all kinds are serious assaults on a woman’s person and her rights; and it needs to be perceived by law as such. constructing psv as an ‘outrage of modesty’ trivialises and misstates the harm. this court agrees with the petitioner that all kinds of psv must be understood as an act of physical and sexual invasion aimed at harming, humiliating and degrading the victim. [39] section 354 also stipulates a punishment that is far lesser than the one prescribed by the rape provision (section 376). in this court’s view there is no justification in grading different kinds of psv on a scale of gravity depending on the orifice of the body violated and the instrument of violation. all kinds of non-consensual sexual penetration of the female body are equally grave because they equally violate a woman’s right to sexual choice and her physical and sexual integrity. there may be different amounts of punishment awarded depending on the circumstances of each case, but not by definition on the combination of orifice and instrument of violation. [40] section 354 may be adequate to deal with sexual harassment or molestation. but it is certainly not adequate to deal with any kind of non-consensual sexual penetration of the female body. [41] the other provision that is used by the respondents to prosecute cases of psv is section 377 ipc. this provision criminalises sexual intercourse against the order of nature. the respondents claim this to be an appropriate provision for the purpose, as psv involving anal-penile or oral-penile intercourse is ‘unnatural’ sex. this court agrees that within the meaning of section 377, such kinds of intercourse are deemed to be against the order of nature. but that does not make this an appropriate provision to deal with psv. this provision criminalises intercourse, whether consensual or not, on the basis of its non-conformity to the generally accepted vaginal-penile norm. the section does not criminalise the act on the basis of absence or presence of consent and the consequent absence or presence of personal harm to one of the parties. it does not contemplate a ‘victim’ and a ‘perpetrator’. ‘unnatural offences’ are crimes even in the absence of a harm or offence to a person because this particular provision seeks its moral legitimacy from the principle of ‘legal moralism’. [42] such a principle endeavours to punish immorality ‘that can be committed not only in publicly harmful and offensive ways, but also discreetly by consenting and hence unharmed parties, in private or before consenting (hence unharmed and unoffended) audiences’ (joel feinberg, harmless wrongdoing: moral limits of the criminal law, 1988, 3). such actions are condemned by society and law because they do not conform to a particular social conception of morality. [43] non-consensual penetration of the female body involving whichever combination of acts needs to be criminalised due to the absence of the woman’s consent. she is the person who is harmed – her rights are infringed, her body is invaded, she is forced to become the object of another’s end. she is harmed because she has to act sexually without her own free consent. section 377 does not recognise her personal harm because it criminalises the act irrespective of whether she consents or not. this can in no way be said to be an appropriate provision to deal with psv of any kind. the fact that it carries equivalent punishment to the rape provision is no reason at all to call it appropriate. there are many other provisions in the ipc dealing with other offences that carry equivalent punishment to rape. but they cannot be used to prosecute sexual violence as they are not appropriate in content. it is the same with section 377. it may stipulate similar punishment but it is not made for criminalising sexual violence. the petitioner has correctly argued that the respondents have misconstrued the legislative intent of section 377. [44] this court finds enough reasons to conclude that neither section 354 nor section 377 ipc are adequate provisions for prosecuting any kind of psv. they are inappropriate in content and form; and undermine and invalidate the victim’s personal harm through their language and construction. this court also finds the respondents responsible for trivialising psv by equating it with voluntary unnatural sexual relations. [45] the next question is whether the narrow interpretation of rape as only vaginal-penile penetration infringes the fundamental rights of women under articles 14, 15(3) and 21 of the constitution. article 14 of the constitution guarantees equal legal protection and equal treatment by the law to all persons within its jurisdiction irrespective of, among other attributes, their sex. the petitioner argues that the non-inclusion of most kinds of psv within the definition of rape under section 375/376 ipc, leads to inadequate access to justice for victims of such violence and therefore infringes the right to equality under article 14. this court agrees that the provisions currently used to prosecute psv other than vaginal-penile rapes are inadequate and inappropriate. consequently victims of such violence are denied proper redress of their injury. [46] section 377 prescribes punishment of ‘imprisonment for life’ or ‘imprisonment for either description ... which may extend to ten years’. but the sentences actually awarded are rarely ever as grave as the stipulated punishment. in chitranjan dass 1975 crlj 30 (sc), where the crime under section 377 was proved, the supreme court awarded a punishment of two months imprisonment. in mihir v. state 1992 crlj 488 (orissa), where unnatural offences were committed on a minor girl the accused was sentenced to two years imprisonment. such sentences may be justified if the case is one of consensual unnatural sex between adults as was originally contemplated by the provision. but sexual violence against minors is being treated equally trivially under this section. when we compare these sentences with the sentences awarded under section 375/376, the difference is huge. [47] in t.k. gopal @ gopi v. state of karnataka [2000] 4 lri 1045, this court upheld a high court sentence of 10 years rigorous imprisonment for the vaginal-penile rape of a minor girl. in state of rajasthan v. om prakash [2002] 2 lri 297, this court reinstated the sentence of seven years imprisonment awarded by the trial court for the vaginal-penile rape of a minor girl and overturned the high court’s judgment in favour of acquittal. so in similar types of offences (psv against a child) the punishments vary hugely depending on whether the vagina has been violated by a penis or not. [48] this shows that vaginal-penile rapes are routinely treated as graver offences than other kinds of non-consensual sexual penetrations. this is so in spite of equivalent punishments prescribed in sections 375 and 377 ipc. and this is made possible by the exclusion of other kinds of psv from the definition of rape under section 375 ipc. [49] the narrow definition of rape as only non-consensual vaginal-penile intercourse hampers access to justice for many scores of women who are victims of psv of the other kinds. the unreasonable and unsustainable difference between vaginal-penile and other kinds of psv constructed by the respondents unfairly treats some victims of rape as not-as-harmed as other victims of rape and infringes their right to equality before the law. in this sense such a definition is indeed a violation of the right to equal treatment by the law under article 14 of the constitution. [50] all victims of psv deserve equal treatment by the law and the equal recognition that their rights to physical integrity and sexual autonomy have been infringed. grading of the suffering caused by different kinds of psv is both impossible and undesirable as suffering is subjective and contextual; how a particular person will experience a particular psv is likely to be different from another person and the context may greatly affect the nature and degree of harm. it is not the law’s task to evaluate harms in terms of subjective experience. the law should look uniformly at legal injuries sustained in terms of rights and freedoms of an individual irrespective of a victim’s subjective experience. a victim who has recovered from the trauma of psv in a relatively shorter time may have managed to suffer less than the victim who has suffered long term ptsd[footnoteref:68] and resorted to suicide, but to law the harms must be the same. construing the harm inflicted in terms of its effect on the victim runs the risk of leniency towards rapists whose victims have proved themselves psychologically stronger than those of other rapists. the successful struggle of a woman to overcome her trauma should not work as a gain for her attacker who gets a lesser sentence. the law risks getting into murky waters when it starts talking in terms of subjective suffering, as suffering is rarely quantifiable. for the sake of fairness, all rapists irrespective the effect on the victim must be punished similarly for the infringement they have caused to their victim’s legal and moral rights and entitlements. [68: post-traumatic stress disorder] [51] article 21 of the constitution guarantees the right to life with human dignity to all persons within the territory of india. in bodhisattwa gautam v. subhra chakraborty air 1996 sc 922, this court has declared that rape is indeed a violation of the right to life of a woman; it is the violation of her right to live with human dignity. the same has been affirmed by this court in many other occasions including chairman, railway board & ors. v. chandrima das & ors. [2000] 2 lri 273. in vishaka v. state of rajasthan air 1997 sc 3011, this court has also affirmed that sexual harassment in workplace is a violation of the right to life of a woman under article 21 of the constitution. [52] as said above, this court does not find any justification to differentially treat vaginal-penile rapes from other kinds of psv. the respondents’ contention and the law commission’s opinion that such a distinction is ‘natural’ is not one for which there is concrete, demonstrable support. therefore all kinds of psv (and keeping in mind the judgment of this court in vishaka, indeed all kinds of sexual violence, penetrative or not) must be seen as violations of the right of the victim to live a life with human dignity. being compelled to have sexual intercourse without one’s consent is a traumatic experience; it is a violation of the basic bodily and sexual integrity of a person; it more often than not leaves deep psychological and often physical scars that interfere with a victim’s life for a long time afterwards. [53] sexual violations of all kinds, especially those involving the invasion of intimate/internal parts of a woman’s body are equal infringements of her fundamental right to live a life with human dignity. a life blighted by memories of sexual violation is an injured life. a woman subjected to such violence is injured in her entitlement to live a life of dignity and freedom. the respondents’ decision to exclude psv other than vaginal-penile rape from the definition of rape under section 375 ipc did violate the rights of the victims of such violence to live with human dignity. the narrow definition of rape favoured by the respondents foreclosed the possibility of adequate redress of their harms for innumerable women. the decision to prosecute other kinds of coercive sexual penetrations under section 377 ipc which do not recognise a victim at all is an outright invalidation of the harm of the affected woman. therefore the respondents have indeed through their narrow interpretation of the term ‘sexual intercourse’ in section 375 ipc violated the fundamental right to life with human dignity of victims of other kinds of psv under article 21 of the constitution. [54] the petitioner has also argued that the narrow definition of rape contravenes article 15(3) of the constitution by defeating the purpose of the criminal law amendment act 1983 which inserts sub-section (2)(f) in section 376 ipc. article 15(3) of the constitution gives the state powers to make ‘special provisions for women and children’ without violating the right to equality. the criminal law amendment act 1983 has amended the original rape law to make provision for aggravated punishment for certain kinds of rapes, including the rape of a woman below 12 years of age. the petitioner contends that the narrow definition of rape has precluded women below 12 years from taking advantage of this amendment when they have suffered psv of other kinds. [55] this court agrees that the amendment in question was indeed made under the powers conferred on the state under article 15(3) of the constitution. this court also agrees that psv victims below 12 years have not been able to access this special provision if they did not fit the category of victims of vaginal-penile rape. though it cannot be said that the narrow interpretation of rape by the respondents directly contravenes article 15(3) of the constitution, yet by blocking access to the special provisions for children enacted under the powers conferred by the article, the interpretation used by the respondents has effectively defeated the purpose of the constitutional provision. [56] the status of international law in relation to municipal law in india is also under contention in the current case. the petitioner has put reliance on a number of international legal provisions to support the petition. the first among them is the respondent’s obligations under the u.n. treaties of crc and cedaw. india has ratified both of the conventions. the petitioner argues that the union of india (respondent no. 1) has an obligation under article 19 of the crc which enjoins the state party to ‘take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment maltreatment or exploitation including sexual abuse…’ under article 4 of cedaw, india has the obligation ‘to take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.’ sexual violence itself is a form of socio-cultural discrimination against women. disproportionately more women are victims of sexual violence perpetrated by men than vice versa. india has an obligation under cedaw to take legislative measures to minimise this discrimination. and that includes making appropriate laws to deal with psv of all kinds. under-regulation of sexual violence, especially male sexual violence against women, makes law and the state complicit in this discrimination. [57] the question here is whether the international obligations of the union of india (respondent no. 1) can be directly taken into consideration by this court in the absence of domestic implementation of the obligations through appropriate legislation. [58] in madhu kishwar & ors. v. state of bihar & ors. (1996) 5 scc 125, this court held that the state was under an obligation to enforce the provisions of the cedaw which provided that discrimination against women violated the principles of equality of rights and respect for human dignity. [59] in vishaka & ors. v. state of rajasthan & ors. (1997) 6 scc 241, this court referred to the statement of principles of the independence of the judiciary in the lawasia region accepted at beijing in 1995 by the chief justices of the countries in the asia-pacific. the principles accepted are those that represent the minimum observable standards to maintain the independence and effective functioning of the judiciary. some of the stated objectives in the beijing statement are: ‘(a) to ensure that all persons are able to live securely under the rule of law; (b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and (c) to administer the law impartially among persons and between persons and the state.’ in light of the above, the court in vishaka decided, specifically in reference to articles 11 and 24 of cedaw, that ‘there is no reason why these international conventions and norms cannot, therefore, be used for construing the fundamental rights expressly guaranteed in the constitution of india which embody the basic concept of gender equality in all spheres of human activity.’ [60] in municipal corporation of delhi v. female workers (muster roll) & anr. 2000 (2) scr 171, this court referred to india’s obligation under article 11 of cedaw and declared –‘these principles which are contained in article 11… have to be read into the contract of service between municipal corporation of delhi and the women employees (muster roll); and so read these employees immediately become entitled to all the benefits conceived under the maternity benefit act, 1961.’ [61] in githa hariharan v. reserve bank of india (1999) 2 scc 228, this court relied upon cedaw and the beijing declaration and platform for action 1995 which urges state parties to take appropriate measures to prevent discrimination against women. it was held by the court that the domestic courts are under an obligation to give due regard to international conventions and norms while construing domestic laws when there is no inconsistency between them. [62] it is clear from the above examples that this court has on various occasions decided in favour of taking india’s international legal commitments into account while deciding domestic disputes. the respondents have argued that this court in vishaka decided in favour of judicial implementation of international obligations, ‘but only in absence of municipal laws’. as sections 377 and 354 are not appropriate for prosecuting psv, and rape under section 375 ipc is currently interpreted as only vaginal-penile rape, this court holds that there are no municipal laws to deal with other kinds of psv. therefore this court is perfectly within its powers to implement international law while deciding this case. [63] the respondents have also alleged that the implementation of international treaties is ‘in the realm of state policy and are, therefore, not enforceable in a court of law’. this court has not in the past entirely agreed with this line of reasoning as is evident from the above-mentioned cases. international legal obligations, especially the ones safe-guarding human rights, should always be a part of judicial consideration in every relevant case because the constitution very clearly intends to confer a wide variety of inalienable and judicially enforceable rights to the people. the indian judiciary cannot close its eyes to the intention of the constitution as expressed in the fundamental rights and directives of state policy. a decade after india’s ratification of the cedaw (on 9th july 1993) and accession to the crc (on 11th december 1992) there is no appropriate criminal legal provision to deal with most types of psv. if the legislature does not pay heed to its obligations under international law, the judiciary cannot simply fold its hands and not take account of the obligations while deciding cases. the legitimate expectation created by respondent no. 1 through its ratification of the international human rights treaties must be honoured by the respondent itself and its agents including the other respondents. lastly, because the respondents have already ratified the treaties in question, it can also be reasonably expected that if this court takes the treaty obligation into consideration it will not be against the intention of the respondent. [64] the respondents have contended that ‘foreign laws’ do not bind the indian domestic courts including this court. the ‘foreign laws’ that the petitioner has placed reliance on are some uk and south african domestic court judgments. it is true that no indian court is bound by the precedents of courts of other jurisdictions. but because of the shared english common law origins of the indian, us, uk, south african, canadian and australian legal systems, judgments from any of these jurisdictions has always been considered by the indian courts. it is nothing new. nor is it unreasonable or undesirable. [65] the respondents have also submitted that reliance cannot be placed by this court on the definition of rape devised by the icty because indian courts are not bound by international judicial decisions. again this court agrees that it is not bound by the pronouncements of icty. but in the absence of any other definition of rape in international law, the definition devised by icty is a sound guideline for an internationally aware domestic judiciary. [66] the next question is whether this court has the necessary powers to broaden the definition of rape contained in section 375 ipc. under article 13 along with article 32 of the constitution of india, this court has not only the power but also the responsibility of judicial review of existing laws to determine whether they conform to the fundamental rights of the people of india. if a particular law or its existing interpretation infringes any of the fundamental rights provisions, this court has the responsibility to re-interpret the law to bring it in line with the constitutional rights or if not possible, to declare the law void. [67] a related question is the concern for legal uncertainty arising from over-zealous judicial review. generally it must be conceded that for the sake of preserving legal certainty it is not advisable for the judiciary to change statutory definitions against the letter and intention of the legislative process. it may make statutory provisions confusing, ambiguous and against the wishes of a democratically elected legislature if the courts start amending the provisions at will without due process in the parliament. but this is true only until the existing legislation does not result in infringement of the constitutional framework. the purpose of the powers of judicial review is to circumscribe the power of the parliament to override the constitution; and the judiciary, as guardians of the constitution, must be mindful of this duty. [68] moreover in the present case, the broadening of the definition of rape by judicial intervention cannot be said to go against the legislative intent. the meaning of rape as vaginal-penile intercourse is not evident from the provision itself. the actual words in the ipc are – ‘a man is said to commit “rape” who… has sexual intercourse with a woman …’ the term ‘sexual intercourse’ has not been defined as vaginal-penile anywhere in the statute. the only additional information about the term is in the explanation contained in the provision which says – ‘penetration is sufficient to constitute the sexual intercourse necessary [for] the offence of rape’. here too the law does not expressly define penetration as vaginal-penile penetration. in other words a plain reading of section 375 ipc does not make it clear that the legislature intended the definition of rape to be interpreted as vaginal-penile. [69] the petitioner has correctly submitted that this ambiguity in the meanings of the terms ‘sexual intercourse’ and ‘penetration’ in the statute affords an appropriate opportunity for judicial intervention. this court can rightfully define any term in any statute that has been left undefined by the legislature. this is not only possible but also desirable for the smoother delivery of justice. undefined and ambiguous terms make the law amenable to misuse. especially in this particular case, the ambiguity in the definition of rape has made it possible for the respondents to give it an interpretation that contravenes constitutional guarantees of rights. judicial re-interpretation of the law will bring it in line with the constitution of india. surely this cannot be detrimental to the ends of justice. [70] the petitioner has also asked the court to give a purposive interpretation to the term ‘rape’ in section 375 keeping in mind the rise of cases of sexual abuse of children involving psv other than vaginal-penile rape. the recent rise in reported sexual violence against children is likely to be a fact. but that must not be taken to prove that actual incidence rates have increased. if the rate of a particular offence varies over time, there must be an explanation for that. no evidence has been submitted by the petitioner to prove this claim and the court finds no reason to assume without evidence that increase in reported cases directly reflects increase in incidence. [71] the more feasible fact is that society’s awareness about the phenomenon has increased in recent times. moving towards a more liberal outlook, we as a society have come to respect individual rights over and above community interests; have become more intolerant of inter-personal abuses of power in different contexts. as our society changes to a progressively capitalist one causing the traditional joint families and closed communities to break up and form migrated mixed population communities consisting of nuclear families with less children and working parents, the power relations change within the family and society, giving the powerless a voice to protest and the public a glimpse within the privacy of extended families and communities where child abuse thrives and grows. our society is still very reserved in disturbing the patriarchal status quo or in interfering within what is known as the privacy of the family but we are slowly starting to pull out the phantoms from the closet and face the facts. in all probability this is the reason for the increased reporting rate of child abuse. [72] sexual abuse of children is likely to have been always present in indian society as in other societies elsewhere and is not something that has suddenly come into being. the claim that child sexual abuse is a new phenomenon is mistaken. in the words of distinguished historian, sheila rowbotham – ‘this mistaken belief arises because we can only grasp silence in the moment in which it is breaking. the sound of silence breaking makes us understand what we could not hear before. but the fact that we could not hear does not prove that no pain existed.’ (sheila rowbotham, woman’s consciousness, man’s world, 1973, 29-30) [73] therefore this court does not accept the argument that something fundamentally has changed in the indian society resulting in hugely raised incidences of sexual abuse of children. what the court does accept is that there is a changed scenario of increased reporting in child sexual abuse cases. this must lead the legal establishment to devise better laws to deal with child abuse. but in the present case, the reasoning in favour of widening the definition of rape in section 375 ipc is more general and fundamental. [74] the petitioner has conflated the issue of the need for adequate laws to address the abuse of children with the problem of arbitrary categorisation of different kinds of rapes stemming from the legal non-recognition of the personal harms of raped women. this conflation is both unfortunate and misleading. even if the rape law is made wider in its import by judicial interpretation, it will not fill the legal void regarding sexual abuse of children, firstly because sexual abuse of children can occur even without any kind of sexual penetration, and secondly because abuse of male children, even the penetrative kind, will not be covered by the widened rape law. any law of sexual abuse of children needs to take into account that such abuse is not always straightforward psv, that there are complex and myriad ways, aggravated by the child’s young age and inexperience, in which she/he can be manipulated into participation in physically and psychologically damaging sexual acts. therefore the argument that the definition of rape needs to be broadened in order to respond to the phenomenon of child abuse is ill-conceived and fallacious. as mentioned before, the rape law should recognise all kinds of psvs as rapes due to a more fundamental need to shift the understanding of rape from violation of chastity to violation of the person and her fundamental rights. the broadened version of the rape law will redress sexual abuse of girl-children only to the extent such abuse involves psv of any kind. and of course, in cases of children as opposed to adult women, presence of consent is no defence for the perpetrator. [75] it has again been contended by the respondents that broadening the definition of rape by a judicial writ would be against the rule of stare decisis. the rule of stare decisis directs the courts to adhere to previous decisions of courts of equal or higher standing within the same jurisdiction for the sake of legal consistency. but it is not a rule without exceptions. the need to maintain consistency in the law cannot outweigh the need to correct unjust laws. if a previous decision of the court is found to have perpetrated grievous wrong and injustice, it becomes essential to diverge from the decision to correct that wrong as soon as possible. [76] this court, in karnal improvement trust, karnal v. smt. parkash wanti (dead) & anr. 1995 (1) suppl. scr 136, referred to a series of authorities from the indian and other common law jurisdictions about the limits of the doctrine of stare decisis and decided – ‘...that normally the decisions which have been followed for a long period of time and have been acted upon by persons in the formulation of contracts or in the disposition of that property or other legal processes should generally be followed afterwards but this rule is not inexorable, inflexible and universally applicable in all situations. the appellate court will not shirk from overruling the decision or series of decisions which establish a ratio plainly outside the statute or in negation of the object resulting in defeating the purpose of the statute or when the court is convinced that the view is clearly erroneous or illegal. perpetration of such an illegal decision would result in grievous wrong.’ [77] in state of maharashtra v. milind & ors. air 2001 sc 393, this court observed that – ‘the rule of stare decisis is not inflexible so as to preclude a departure therefrom in any case but its application depends on facts and circumstances of each case. it is good to proceed from precedent to precedent but it is earlier the better to give quietus to the incorrect one by annulling it to avoid repetition or perpetuation of injustice, hardship and anything ex-facie illegal more particularly when a precedent runs counter to the provisions of the constitution.’ [78] the respondents have specifically mentioned the particular decision in state of punjab v. major singh 1966 (supp) scr 266 where it was held that the rupturing of the hymen by insertion of a finger is not rape. in the view of this court today, this previous decision perpetrates a grievous wrong by unreasonably differentiating between vaginal-penile rapes and other kinds of penetrative sexual violence. as said before, this difference is based on an understanding of rape as an offence against a woman’s chastity. this decision cannot be adhered to in light of the current understanding of rape as an offence against the person of a woman. this and all other decisions of this court that have interpreted rape as vaginal-penile must be departed from as they infringe the fundamental rights of the victims of psv. [79] stare decisis literally means ‘to stand by what has been decided’. but no court shall be justified in standing by what it believes to have been decided wrongly. the judiciary’s first commitment is not to rules of conduct, but to the purpose of delivering justice. the rules are simply a way to the purpose, and not the purpose itself. [80] an issue not covered by the petition but relevant to it, is the legal redress for rape of men. the law in india provides no redress whatsoever for male rape. it is beyond the scope of this judgment to remedy this shortfall. the respondents prosecute such cases under section 377 ipc which as noted earlier, does not construct the crime in terms of non-consent. section 377 ipc criminalises voluntary sexual relations that do not conform to the socially accepted heterosexual norm; it does not contemplate a victim and a perpetrator. therefore it actively invalidates the harm inflicted on the victim in psv. male victims of psv are inadequately dealt with under this section. in charanjit singh 1986 crlj 173 (punjab & haryana), where a truck-driver was prosecuted for committing sodomy on a boy, a lower court sentenced him to one-year imprisonment and a fine of 500 rupees. it is not possible judicially to broaden the definition of rape under section 375 ipc to bring men under its purview due to the specific wording to the contrary. instead this court would like to take the opportunity to urge the legislature to immediately contemplate an amendment of the existing law of sexual violence to bring men under its ambit as victims. [81] to summarise the decision of this court – 1. the definition of rape under section 375 ipc should include all kinds of psv, namely – anal-penile, oral-penile, vaginal-penile, anal-object, vaginal-object, vaginal-finger and anal-finger. psv must be uniformly termed rape and must be understood in terms of violation of the victim’s rights to physical and sexual integrity and autonomy/choice. no gradation of psv into lesser and graver is warranted by the law. 1. the current narrow interpretation of rape in section 375 ipc as vaginal-penile rape is against the fundamental rights of the victims of psv under articles 14, 15(3) and 21 of the constitution. 1. the court is within the bounds of its constitutional powers and responsibilities in re-interpreting an ambiguous statutory term whose current interpretation infringes the constitution. 1. the doctrine of stare decisis is not so rigid as to prevent a court from departing from its previous decisions under all circumstances. where following a precedent can result in perpetuating a grievous wrong or a contravention of constitutional rights, the rule of stare decisis must be abandoned. 1. india’s obligation to ratified international human rights treaties must be kept in mind by the courts, especially when an unreasonably long time has passed and the legislature has not acted to incorporate the provisions of the treaties in municipal law. 1. judicial pronouncements by international courts and tribunals are not binding on indian courts, but may appropriately act as guidelines for domestic courts for understanding various evolving international legal concepts. 1. similarly, decisions made in other common law jurisdictions do not act as precedents in indian domestic judicial decision-making but they may be used as guidelines by indian courts. 1. victims of male rape are unjustifiably left with no proper legal redress in indian criminal law. this court asks the indian legislature to pay urgent attention to this serious and regrettable situation. for the reasons mentioned before, this special leave petition is allowed. order: order accordingly. conclusion i will conclude with a speculation of what effects such a judgment would have had if the supreme court of india had written it in 2004. firstly, the law of rape in the indian penal code 1860 would have redressed all forms of psv against women for the last seven years which would have saved many women and female children from inadequate redress of their harms. secondly, the legal idea of rape as violation of chastity, often reiterated by judicial pronouncements in india[footnoteref:69] would have started shifting towards an understanding of rape as a violation of personal space and constitutional rights of an individual.[footnoteref:70] as the editors of the feminist judgments project in the uk write – [69: the indian courts often define rape in terms of violation of supreme honour and chastity of a woman as i have discussed above.] [70: there are instances when rape has been judicially recognised as a violation of constitutional rights, yet that sounds like lip-service as long as the division between rapes and non-rape psvs stand, and as long as the judiciary keep on describing rape as violation of a woman’s chastity, because both cannot be true at the same time. ] ‘…law is not simply a coercive force, but is also a powerful and productive social discourse which creates and reinforces gender norms. … by intervening in law from a feminist perspective, one of the aims of the feminist judgments project was to disrupt this process of gender construction, and to introduce different accounts of gender that might be less limiting for women.’[footnoteref:71] [71: hunter, mcglynn and rackley (eds.), feminist judgments: from theory to practice (2010) 7] consequently, if this judgment was written by the court in 2004, it would have been a powerful intervention into and disruption of the existing patriarchal understandings of rape in india. thirdly, the idea that some kinds of rape can be legitimately prosecuted under the law of unnatural intercourse which does not depend on presence or absence of consent, and consequently that some kinds of intercourse might be branded unnatural, would not have found support in the highest court of the country. and finally, the amalgamation of the issue of protection of the girl-child with the quite different issue of upholding the constitutional rights of the woman would have been discouraged.[footnoteref:72] [72: this list of potential impacts of my feminist judgment was inspired by the feminist judgments project in the uk. see hunter, mcglynn and rackley (eds.), feminist judgments: from theory to practice (2010) 27-28] reiterating what has been said earlier, this judgment is being presented as one of the many feminist judgments possible in this particular case. the strength of feminism lies not in its uniformity but in its multiplicity and unevenness, in its internal conflicts and accommodations, and in its ability to stretch and encompass myriad voices without permanently privileging some of them over the others. this dynamism is a sign of feminism’s vitality and potential. and i will be glad if my humble contribution to the enormous possibility of feminist judgments can spur others into writing their own feminist versions of the same judgment. i am immensely fortunate to have come across such a potent tool of feminist scholarship in the feminist judgment projects of canada and the uk, and feel privileged to be able to add my voice to this movement. -----------------------------x------------------------------bibliography baxi, u., ‘taking suffering seriously: social action litigation in the supreme court of india’, third world legal studies (1985) 107-132 bhagwati, p.n., ‘judicial activism and public interest litigation’, 23 columbia journal of transnational law (1984-1985) 561-577 chatterjee, p., ‘colonialism, nationalism, and colonialized women: the contest in india’, 16(4) american ethnologist (1989) 622-633 dembowski, h., taking the state to court: public interest litigation and the public sphere in india (new delhi: oxford university press, 2000) hunter, r., c. mcglynn and e. rackley (eds.), feminist judgments: from theory to practice (oxford: hart publishing, 2010) kapur, r., ‘challenging the liberal subject: law and gender justice in south asia’, m. mukhopadhyay and n. singh (eds.) gender justice, citizenship and development (ottawa: zubaan, 2007) 118-170 khosla, m., ‘addressing judicial activism in the indian supreme court: towards an evolved debate’, 32 hastings international and comparative law review (2009) 55-100 lacey, n., ‘unspeakable subjects, impossible rights: sexuality, integrity and criminal law’, 11(1) canadian journal of law and jurisprudence (1998) 47-68 majury, d., ‘introducing the women’s court of canada’ at http://womenscourt.ca/wp-content/uploads/2009/12/majury-intro.pdf (accessed 16.10.2011) mani, l., contentious traditions: the debate on sati in colonial india (berkeley: university of california press, 1998) naffine, n., ‘possession: erotic love in the law of rape’, 57(1) modern law review (1994) 10-37 sarkar, t., ‘a pre-history of rights: the age of consent debate in colonial bengal’, 26(3) feminist studies (2000) 601-622 sathe, s.p., ‘judicial activism: the indian experience’, 6 journal of law & policy (2001) 29-107 sen, m., death by fire: sati, dowry death and infanticide in modern india (london: w&n, 2001) sen, s. ‘toward a feminist politics? the indian women’s movement in historical perspective’, policy research report on gender and development working paper series no. 9, the world bank development research group/poverty reduction and economic management network (2000) sinha, m., ‘reading mother india: empire, nation and the female voice’, 6(2) journal of women’s history (1994) 6-44 skuy, d., ‘macaulay and the indian penal code of 1862: the myth of the inherent superiority and modernity of the english legal system compared to india’s legal system in the nineteenth century’, 32(3) modern asian studies (1998), 513-557 _____________________________________________________________________________________ ____________________________________________________________________________________ harriet samuels the archers and violence against women _____________________________________________________________________________________________ feminists@law vol 9, no 2 (2020) ___________________________________________________________________________ the archers, the radio, violence against women and changing the world at teatime harriet samuels* abstract feminists working on violence against women (vaw) have often been disappointed by the failure of law to produce profound change. ill-informed and stereotypical views about vaw held by judges, lawyers, law enforcement officers, those in the media and the general public have undermined laws intended to tackle violence including domestic violence. as a consequence, vaw activists have sought new methods to shift the public discourse and facilitate the operation of the law. this article examines how campaigners used a highly publicised storyline on coercive control in the long running bbc radio 4 soap opera the archers to circulate feminist knowledge on domestic violence. it discusses the reasons for the success of the activists on this occasion and reflects on the potential of popular culture combined with other forms of activism to embed feminist understandings of vaw and enhance the effectiveness of the law. it argues that popular culture can influence not only the legal professionals and others responsible for implementing and applying the law, but the broader public consciousness of domestic violence and vaw. introduction between 2013 and 2016 the long-running british broadcasting corporation (bbc) radio 4 drama the archers ran a storyline based on a relationship between a couple, helen archer and rob titchener, in the fictional village of ambridge in central england (helen/rob story). the plot involving the pair centred on coercive control, a form of domestic abuse that was criminalised by the serious crimes act 2015. the story received extensive publicity, and led to a national conversation, guided by feminist activists about the nature of coercive control and domestic violence. the editor of the archers, sean o’connor, has commented on the power of popular fiction to ‘inform and even change the law’. given the capacity of television (tv) and radio drama to tell stories embodying and reinforcing society’s values it is unsurprising that its outputs have been targeted by advocacy groups wanting to exert influence over their production. storylines involving violence and femicide are a staple of broadcast media, often presenting brutal and stereotypical representations of violence against women. in contrast, the helen/rob story in the archers provided the audience with an insight into how a little understood complex legal harm might be experienced in the humdrum setting of rural england. the decision of the editor to involve women’s organisations, who had campaigned for the law, in the planning of the storyline, and to slowly broadcast it over a number of years, allowed the psychological elements of domestic abuse to be accurately portrayed in depth to the audience. the story then acted as a catalyst for campaigners to engage in activism to try to advance a more feminist understanding of domestic violence. feminist campaigners cannot take for granted that a hard-pressed-for law will be successfully implemented. this has led to the expression of scepticism by some scholars about the utility of law in advancing the feminist project. the history of feminist law reform has shown that for a law to function positively there is a need to face down non-feminist narratives within and without the law. otherwise, there is a danger that a vigorously campaigned-for law will fall on stony ground, fail to be implemented and lack effectiveness. as a consequence, activists have come to see agitating for law reform as part of a process rather than as a one off event. they have been required to continue to work, usually for decades after the passage of the law, to ensure that the ideas incorporated in the legislation are based on a feminist understanding, are widely shared and are embedded in the social consensus. it is argued here that popular culture, in particular serial dramas such as soap operas, can alongside other methods, facilitate feminist activism by creating sympathetic stories and counter narratives. the radio soap opera the archers supplies a useful case study where violence against women (vaw) activists, instrumental in the legal campaign to put coercive control on to the statute book, used the archers as a vehicle to foster a deeper understanding of coercive control and the psychological aspects of domestic abuse. for several years the drama enabled listeners to comprehend how seemingly everyday behaviours may be classified as a gendered harm and dealt with by the law. through the study of the coercive control storyline in the archers this article examines the interaction between law, feminist activism and popular culture. it is argued that it provides an example of activists not only intervening to change the law, but also the social discourse that surrounds it. however, the use of popular culture in this way by vaw activists was not uncomplicated and warrants further interrogation as a potential tool of feminist legal and political activism. the power of narrative fiction on radio and tv television and radio fiction, in particular soap operas, have been seen as a means of entertainment and education. this speaks to a long-held belief in the power of storytelling, particularly narrative fiction, to influence public opinion. the advent of radio and television and the ability to reach large audiences has attracted the attention of governments, international organisations and non-government organisations who have used these mediums to inform and educate the public on issues such as health, education and gender equality. theories and methods of ‘education-entertainment’ or ‘edutainment’ have been developed and deployed to produce serialised dramas that follow certain formulas to encourage social change. ‘education-entertainment’ is most strongly associated with the global south although there are examples of dramas specifically funded and initiated for education purposes by governments in many other countries. however, much more common in the uk are the use of strong educational storylines in ongoing popular soap operas where the emphasis is on entertainment with the educational elements interwoven into the plot. the archers was originally intended to be an educational programme for farmers after the second world war at a time when there were food shortages and rationing in the uk, and it still has an agricultural story advisor. in its present format it is plot driven and is written to entertain. but it makes a point of referring to current events that are inserted into the storyline, for example the foot and mouth crisis, the floods that affected rural england and brexit and the shortage of foreign fruit pickers. it also has a track record of covering significant social matters such as gm crops, environmentalism, criminal justice, miscarriage, religion, gentrification, the housing crisis, dementia and social care, health matters such as breast cancer and recently storylines on the life threatening bacterial infection sepsis and childhood sexual abuse. this educational remit also fits with the bbc’s original overarching ideology as a public sector broadcaster with its reithian aim to ‘inform, educate and entertain’. the coercive control storyline in the archers is consistent with its original didactic mission, but it is not the only soap opera in the uk to have tackled the subject of domestic abuse. there have also been highly publicised vaw plotlines on other tv soaps in the past. the brookside storyline on the jordache family (1993-1995) involved child sexual abuse, domestic violence and murder, and the little mo storyline (2000-2002) in eastenders similarly centred on child sexual abuse, domestic violence and murder, and was also an important ‘cultural event’. at the time of writing, itv’s coronation street was in the midst of broadcasting a story based on coercive control and was being advised by domestic abuse charities. nevertheless, the sustained publicity of the helen/rob story, the longevity of the archers, its iconic status and its popularity amongst the establishment including lawyers, judges and other professionals responsible for enforcing the law, make it especially worthy of study. in addition, the increasing popularity of podcasts has broadened the possibilities of the radio format as a medium for social activists, alongside social media, as a resource to press for social change and to ensure the law is better understood. the archers, and the helen/rob storyline the archers is the longest running daily radio serial in the world, and it was first broadcast on 1 january 1951 on bbc radio midlands. it has over five million listeners at peak listening times. it takes place in a rural setting, usually in real time, in the fictional village of ambridge in imaginary borsetshire in the midlands in the middle of england. it was introduced as ‘an everyday story about country folk’. it is a soap opera about the archers, a large middle-class farming family, and their neighbours including the working-class families in the village. it is broadcast six days a week for 13 minutes at 7pm, and repeated at 2.15pm the following afternoon. there is also a sunday morning omnibus edition. it has become a british institution with many celebrity appearances including several members of the royal family, and was featured as a leitmotif of british life in the olympic games opening ceremony in london in 2012. in 2013 a new character was introduced to the listeners of the archers. rob titchener moved to ambridge to take up a job as manager of a newly established mega dairy. he was a married man, but he begins a relationship with helen archer. she is a member of the archer family who dominate the life of the farming community in ambridge. helen is a thirty-something competent businesswoman running ambridge organics, a local shop, and she is an artisan cheese maker of the famous ‘borsetshire blue’. listeners have known her since birth, and she is regarded as a vulnerable character, having endured several bereavements in her family and having been hospitalised for anorexia nervosa. when she meets rob she has recovered, her life is back on track and she has become a single mother to her son henry, conceived by donor insemination. rob takes over as manager at a neighbouring farm and is introduced as a rather suave and energetic man. he has attended public school, is forceful, confident, polite and keen on sports such as rugby and hunting. he woos helen, overcoming her family’s initial suspicion of him. he divorces his wife and marries helen. at first listeners think rob is just a certain type of upper-middle class englishman. but over a period of years listeners hear rob bully, psychologically abuse and then isolate and manipulate helen. she becomes estranged from all but one of her friends, kirsty. rob tells helen what to wear, what to eat, takes over her job and salary, prevents her from driving and obtains a step-parent order giving him parental responsibility for helen’s son. it later becomes apparent that he has raped helen causing her to become pregnant against her will. he ‘gas lights’ her by setting her up, lying, and blaming her for errors he has made both in business and in the home. helen becomes unsure of her own mind, doubting herself and her sanity. eventually, helen’s longstanding friend kirsty returns to ambridge, she helps helen to see what is happening, and gives her the number of a domestic violence helpline and a mobile phone. when a pregnant helen tries to leave rob, in march 2016, he puts a knife in her hand and tells her the only way she can leave is if she kills herself. he then appears to threaten henry who is woken by their argument. there is a struggle and rob is stabbed and badly wounded, but he survives after a long stay in hospital. helen is arrested, charged with attempted murder and gives birth in prison while on remand. at a dramatic jury trial helen, represented by a feminist lawyer, finally manages to disclose in the witness box rob’s wrongdoing including the marital rapes. helen is acquitted of attempted murder and other lesser charges as it is accepted that she acted in self-defence. helen decides she does not want to pursue charges of rape or coercive control. she just wants to get on with her life. however, she has had a child with rob, and he continues to fight her through the courts to enable him to have contact with the children. after failing to secure the type of contact he wants he leaves ambridge for a job in north america. the helen/rob story in the archers gained unprecedented public attention. there was an increase in the listenership of the programme by 100,000, an unusual amount of media coverage and intense discussions in the various social media communities, often led by vaw organisations. a fundraising campaign on justgiving started by an archers’ fan for refuge, a domestic abuse charity, raised over £160,000. women’s aid annual review noted that there was a 17 per cent increase in helpline calls at the height of the drama. there were debates in parliament that referenced the archers, with one conservative mp stating in a house of commons debate on united nations day: ‘as a great “archers” fan, i also think that its storyline has helped to raise awareness. i personally was not really aware of it [coercive control]. it was utterly shocking and really brought it to the fore.’ the editor of the archers commented on a meeting that he and the ‘women’s charities’ had in parliament with mps and peers: ‘at the end, the mps said what can we do to help you [women’s aid and refuge], so we have all these mps captive in a room asking you how to change things…it’s extraordinary.’ one of the main reasons why there was such an informed public discussion that gained momentum as the story progressed was the enthusiasm and energy of the vaw activists. they not only advised the editors while the story was being developed, but they led discussions with mps and others, on tv, radio, newspapers and on social media. they used these platforms to explain the nature of the harm that was being done to helen, her response to the abuse, the trauma caused by coercive control and the legal implications. in doing so they were articulating ideas drawn from feminist-inspired law and policy and countering prevailing orthodoxies about the nature of domestic violence. in sum, the compelling nature of the helen/rob story combined with the archers audience, that included those with power and influence, and the work of the vaw activists in advising on and then publicising the drama, meant that it received considerably more publicity than might normally be expected for a storyline on a soap opera. coercive control and domestic violence the helen and rob story provided an example of coercive control. the new offence of coercive control was enacted into the law of england and wales in section 76 of the serious crime act 2015, and carries a maximum term of five years’ imprisonment. it was introduced after a home office consultation and was intended to close the gap in the legal framework where there is a pattern of abuse within an intimate partner or familial relationship. this often fell outside the criminal law on assault, stalking and harassment. the offence is complex but it is committed where there is repeated or continuous behaviour towards another person that is controlling or coercive. at the time of the offence the parties must be personally connected and the behaviour must have a serious impact on the victim. the defendant must know or ought to know that the behaviour will have a serious effect. to prove that behaviour has a serious effect the prosecution must prove that it causes the complainant to fear on at least two occasions that violence will be used against her, or that it causes her serious alarm or distress, which has a substantial adverse effect on her day to day activities. it is a defence to show that the defendant believed that the relevant behaviour was in the complainant’s best interest and that it was in all the circumstances reasonable. the recognition of coercive control as a common kind of abuse in domestic relationships is further reinforced by its specific inclusion in the definition of domestic violence in the domestic abuse bill 2019-21. although the definition of domestic abuse has attracted criticism the specific references to psychological and economic forms of abuse has been welcomed by most campaigners. more recently coercive control has been used to explain the conduct of women who have killed abusive partners. this has arisen in the context of the partial defences to murder, especially diminished responsibility. latterly, sally challen, who was convicted of murdering her husband in 2011 and was sentenced to a mandatory term of life imprisonment, had her conviction overturned after she had served nine years in prison. a re-trial was ordered but the crown prosecution service accepted her plea to manslaughter on the grounds of diminished responsibility and she was released on the basis of the time she had already served. the court of appeal accepted the argument of challen’s counsel that at the time of her original trial there was a lack of knowledge, by psychiatrists and criminal justice practitioners, of coercive control. therefore, there was a risk that evidence of challen’s actions were not put in their proper context during the trial, and the potential relevance of her behaviour as an indicator that she was being coerced and controlled by her husband was not appreciated. this meant that the partial defence of diminished responsibility was not presented as forcefully as it could have been, and the defence of provocation was not put at all. the court of appeal held that new understandings of coercive control as psychological violence combined with subsequent evidence of the defendant’s behaviour in prison were sufficient to allow fresh psychiatric evidence to be admitted. these psychiatric conditions were not raised at the trial, and therefore cast doubt on the defendant’s conviction. the court of appeal’s decision is not unproblematic as it focuses on the defendant’s mental state rather than the actions of the abuser, and the exact reach of coercive control as a defence will have to be determined in future cases. however, the challen case attracted considerable media coverage and there was a very vigorous campaign, supported by her sons, to free her. challen was dubbed the ‘real life’ helen archer and the case was referred to as the ‘real’ helen and rob case from the archers. vaw activists supported challen’s appeal, and there were numerous newspaper articles written where the facts of challen’s case and the fictional story were compared. one legal commentator referred to challen’s defence as ‘the ambridge defence’. there was also a reference to the archers by challen’s barrister during the court of appeal hearing, with challen reportedly identifying herself as a victim of coercive control after listening to the archers in prison. there was a definite overlap between fact and fiction with the coercive control shown in the archers being used to explain the events in challen’s case to a public, some of whom had been familiarised with the concept from listening to the radio soap. the archers storyline and the activism by vaw campaigners led to information about coercive control being widely disseminated. circulating feminist knowledge vaw activists adroitly used the broadcast of the helen/rob story to publicise the new law on coercive control and the psychological domination that forms part of domestic violence. if law is to be effectively deployed to prevent and provide redress from gendered harms, there is a need for vaw activists to use every opportunity to challenge myths and stereotypes, and to use feminist ideas to re-shape dominant discourses of violence against women. changing the law is never enough. as smart pointed out in her key intervention in the 1980s, once laws are enacted they are vulnerable to the interpretations of those who have little understanding of the values of feminism. she argued by that by over-investing in law reform and legal scholarship feminists had conceded too much to law’s claims to establish truth at the expense of disqualifying other forms of knowledge. she sought to de-centre law and to persuade feminists to look to non-legal strategies to solve problems. she urged feminists to ‘resist the temptation that law offers, namely the promise of a solution’. she advocated the need to intervene at the conceptual level so that feminist discourses can take a firmer root. she acknowledged that law is too powerful to go unchallenged, but rather than focus on law reform, in her view, feminists should challenge law’s power to ‘define and disqualify’, for example she states that feminists have redefined ‘harmless flirtation into sexual harassment’ and ‘enthusiastic seduction into rape’. feminist legal scholars have embraced smart’s challenge in myriad forms. they have recognised the power of her criticisms, the need to exercise greater caution when engaging in law reform and the importance of non-legal strategies. smart herself some twenty years after her original intervention has noted how she never meant for law to be ignored and sees her work as part of an ongoing conversation between feminists about the utility of law. smart’s scholarship emphasises the unpredictable nature of law-based projects, and the necessity for feminists to reshape social norms. one possible method is through discursive forms of activism where feminists intervene more directly to ‘change the way people think’. feminist publishing and writing are examples of discursive activism. but this type of work can also be done through the use of tv/radio entertainment such as serial dramas. the broadcast of the helen/rob story took place at a time when feminists had been successful in changing the law, they had helped to redefine what might be regarded as unpleasant and bullying behaviour as the legal wrong of coercive control. for the law to have an impact there was a need for feminists to find tools that dispelled ingrained attitudes towards domestic abuse, and enabled feminist understandings of domestic violence to prevail in the ‘hearts and minds’ of the public, law enforcement personnel and judicial actors. according to hunter, mainstream feminist positions include seeing domestic violence as a gendered phenomenon, and recognising that violence includes not just physical abuse, but coercion, power and control that may result in living in constant fear. there is a knowledge that women may be in denial about the violence, may not want to leave their partner, that violence may escalate during pregnancy and that when women attempt to leave they may be in grave danger. the pattern of domestic violence may well vary for black and ethnic minority women (bame), women with disabilities and in intra lesbian domestic violence. for instance, there may be greater suspicion of the police and complex issues around immigration for bame victims of vaw. hunter contrasts feminist narratives with other non-feminist understandings of domestic violence that minimise its harm and see it as exceptional. there is an emphasis on physical violence and an ignorance or tendency to underestimate psychological violence. there is a stress on the importance of maintaining the nuclear family, a failure to see the structural, social and economic barriers that prevent women from leaving violent relationships and the use of ‘fright narratives’ about the dangers of mad, bad and vengeful wives and mothers using the law on vaw for their own selfish purposes. these negative narratives persist in the reporting of domestic violence in the uk. one recent study of how discourses of domestic violence are constructed through representations of domestic violence in newspapers found that there was a tendency towards victim blaming, sympathising more with ‘ideal’ victims and sexualising violence against women. a timely reminder of the enduring hold of sexist norms in domestic violence cases occurred in a recent highly publicised family law decision concerned with coercive control, domestic and sexual abuse. allowing an appeal from a lower court the high court judge, ms justice russell, castigated a senior family law judge for, inter alia, his approach to consent and his failure to understand the nature of coercive control. he had cast doubt on an account of sexual abuse on the grounds that there was no sign of physical resistance, and that there was no immediate report of the abuse. ms justice russell was so alarmed by these comments that she reported having taken steps to request formal training from the judicial college for family law judges. whilst such examples of media and judicial misinformation may be discouraging, the high court judge’s approach and the legal and media criticism of the original decision show at least that these views are challenged in the mainstream. it also accentuates the need for activists who press for changes in the law to guide public discussion and find forums where a feminist narrative can be set forth and further mainstreamed. the helen/rob story in the archers gave the activists just such a forum to disseminate feminist knowledge. it was a chance to influence not only the general public but those involved in the implementation of the law, thus potentially providing an alternative method of judicial and public education. the process by which feminist knowledge is circulated by social activists can be conceived of as framing, or what benhabib sees as a process of iterations, or as levitt and merry prefer, vernacularisation. social movements such as feminism try to exercise influence by framing issues, often so as to counter dominant narratives. framing draws attention to social movements such as feminism’s capacity to construct meanings so as to challenge orthodox ideas, and develop understandings that interpret events and conditions so as to mobilise support. they draw together different elements so that ‘one set of meanings rather than another is conveyed, or, in the language of narrativity one story rather than another is told’. benhabib highlights the functions of social movements in her discussion of iterations in the context of international human rights. she argues that ideas such as rights should be seen as part of an iterative process. she observes how ‘social actors’ can use ‘moments of rupture’ to ‘re-appropriate norms’ and ‘to enable new subjectivities to enter the public sphere.’ she argues that they do this by applying them in the most context appropriate manner that retains the transcendent element of rights while adapting them sufficiently to satisfy local democracy and culture. levitt and merry use the term ‘vernacularisation’ to describe the transmission and adaptation of norms on women’s rights especially on vaw. their anthropological research across various countries shows how, what they term the ‘global women’s rights package’ is ‘repackaged’ by domestic organisations to meld with local cultures and combined with other ‘discourses of social justice’. they describe the core of the global women’s rights package as including ‘the idea that women should own property, be able to divorce…stresses a woman’s right to protection from domestic violence and discrimination and to enjoy reproductive autonomy and the right to sexual choice’. activists use and adapt the global women’s package in ways that are culturally appropriate, sometimes creating new meanings. the symbiotic relationship between legal and non-legal activists is stressed with legal activists focused more on strategic litigation and formal human rights mechanisms. non-legal actors may find alternative methods to make their point and concentrate on building public consciousness and challenging the state. so they may use drama, art, dance and documentary making and other types of discursive activism. whilst the boundaries between legal and non-legal activists are perhaps more blurred than this account allows, their analysis does underscore the significance of non-legal strategies in communicating feminist norms in an attempt to shift the public and legal mind set. these concepts of framing, iterations and vernacularisation rely, to a large extent, on the role of social activists in educating, informing and shaping the public discourse. the notion of vernacularisation as developed by levitt and merry and benhabib’s idea of iterations both focus on the transmission of international norms such as those in the ‘global women’s rights package’. they are an inexact fit with the role vaw social activists play in interpreting and disseminating laws and norms in domestic law. yet these explanations are valuable because they highlight the function of activists in transmitting and interpreting norms, laws and policies struggled for in either international or domestic forums by feminists. social activists are savvy in finding appropriate domestic social and cultural spaces to communicate their ideas in the most effective language. so, in the uk context vaw activists, when discussing coercive control in relation to the archers, rarely used the terms ‘women’s rights’ or ‘human rights’. instead they relied on the drama’s painful exposure of domestic abuse to illustrate the injury being done to helen’s freedom and autonomy. they then further articulated the legal, social, reproductive and psychological consequences, and underscored the material problems of finance, housing and healthcare. timing is everything: the right time, the right place and the right audience? one of the reasons why the coercive control storyline in the archers reached a larger audience, was taken seriously and discussed in depth, was that it was broadcast ‘in the right place’ on the supposedly ‘high-brow’ bbc radio 4. it may have received a different response if it had been aired in a more ‘low-brow’ forum. bbc radio 4 has the reputation of being the station of the ‘chattering classes and opinion formers’ and is listened to by politicians, civil servants, campaigners and business leaders. it has the capacity to influence and inform those with power and authority. even though the archers is essentially a soap opera it has ‘credibility’ despite the ‘low-brow’ genre because it is played on radio 4 and is therefore seen as ‘quality radio’ being delivered to a ‘quality’ audience. as discussed earlier it has a tradition of engaging with social issues and the events on the archers have cultural significance, its content is hotly debated, and the drama is taken very seriously by the audience. the aurality and radiogenic nature of radio drama also contributed to the success of the storyline in conveying the nature of coercive control. it is a truism that radio, unlike television and film, requires the listener to imagine the scenes for themselves and it is argued that this activity can provoke an emotional attachment to the radio even in a highly visual age. yet it was not just the imagined images that were powerful. so often it was the menacing sound of rob’s voice alternately scolding helen, and then praising her in his smooth honeyed tones when he gets his own way. it proved an excellent method of illustrating psychological control. using a light and airy tone of voice he manipulates her, isolating her and rendering her powerless. over time we hear her internalising his values in her responses to him. listening to the differing scenarios provides an answer to the oft-asked question in situations of domestic violence, ‘why doesn’t she just leave?’. the radio drama addresses this by showing how rob’s control of helen renders her helpless. helen’s family and friends are also invested in their relationship with rob and are equally groomed by him. almost everyone around helen appears to have the highest opinion of rob. this makes it almost impossible for her to reveal her true feelings or state of mind and contributes to her doubts about her judgement. for the audience, often listening in their own homes in a similar domestic setting, perhaps cooking or carrying out household chores, the sense of domestic menace is intensified. there is an almost immersive element to the drama. it shows the audience how gender-based violence occurs in the family home, even in the most idyllic setting such as rob and helen’s home, blossom hill cottage. hearing how rob gradually isolates and controls helen so graphically in such detail over a long period not only made for compelling drama but provided the audience with an education on the mechanics of coercive control. taken individually it is easy to dismiss any single comment, argument or decision of rob’s as innocent behaviour, but as the story unfolds the listener understands the cumulative effect. helen is unable to name what is happening to her or to explain it to those around her, having a close familial network does not protect her. this exemplifies the difficulty of convincing others of the existence of coercive control; it typically happens quietly, subtly and behind closed doors. rob has even been described as having not just ‘gas-lighted ambridge but the whole listenership’. rob dupes the audience for quite some time, but because they hear the private conversations between the couple they, unlike the rest of the village, become painfully aware of rob’s duplicitous behaviour and abuse of helen. as alluded to above the composition of the archers audience, that included legal professionals, was also important in extending the influence of the story; the helen/rob plot captured the imagination of the legal community. lady hale, the former president of the supreme court, referred to the archers in extra judicial speeches and has also used the archers to underscore the significance of the ground-breaking decision of the supreme court in yemshaw v hounslow lbc where it was held that domestic violence does not have to be physical. further evidence of the reach of the helen/rob story is evident from the websites of numerous solicitors’ firms and barristers’ chambers. many published articles and blogs discussing the different legal aspects of the storyline, sometimes tweeting links to their websites that explained the legal issues in a layperson’s language. the professional legal journals and newspapers carried articles by lawyers commenting on the authenticity of the story and the accuracy of the law. the legal commentaries ranged from the competence of helen’s barrister, the availability of legal aid and the care and contact arrangements for henry, including the problem of the use of child contact by perpetrators of domestic violence as a means of regaining control over their victim. many of the authors referred to the work and research of vaw activists, and most appeared to sympathise with helen’s predicament, and praised the treatment of the legal issues in the programme. the timing of the story was also significant. the arrival of rob in the village of ambridge and the storyline on coercive control occurred at the same time as lobbying by vaw activists to persuade the government to criminalise coercive control. the campaign on coercive control was well received by the government. one campaigner described it as ‘history in the making’ because the goal of criminalising coercive control was achieved in twelve months. this meant that when the helen/rob story began campaigners were able to swing into gear and take advantage of the ‘cultural moment’ that had opened up. to use benhabib’s language, the vaw activists, as social actors, seized the chance offered by the publicity generated by the drama to try to redefine the social norms around domestic violence, and enable new subjectivities to enter the public sphere. they mobilised by using the archers as a site to usurp traditional views of domestic violence and to offer their own more feminist interpretations of the power dynamics of the events as they unfolded. they also capitalised on the newly created spaces of cultural communication online where they named rob’s conduct as coercive. for example, after rob’s attempts to alienate helen from her family, refuge tweeted ‘[m]any abusers will isolate their partner and manipulate the situation. find out more’ and they then referenced their website. they guided the discussion on the helen/rob storyline, making available information and advice. through their discursive activism the vaw campaigners acted as a bridge between the drama and the audience. they mediated the fictional world of the soap opera with their knowledge of the everyday reality of psychological violence and its legal consequences, from their experience of running shelters and helplines. in the helen/rob story their interpretation of the narrative enabled a richer and more feminist-informed conversation to take place. they effectively used popular culture to intensify their campaign and to deepen understanding of the law. planting feminist seeds : intervening in the public conversation what is of interest here is how the radio drama was used to mainstream feminist-infused knowledge about the nature of domestic violence. this was done by framing or vernacularising the norms and principles surrounding the law on coercive control to ensure the audience interpreted what was happening from a feminist perspective. for activists trying to convey an understanding of the psychological component of domestic violence, the archers depicted a moving scenario that showed not only the characters’ interior world, but how the law reinterprets this type of behaviour as violence and the legal consequences that may ensue. the two leading organisations on vaw in england are refuge and women’s aid. responding to the requests of the production team for help they were able to provide the editor, scriptwriters and actors with information as well as access to survivors of coercive control who conveyed their experiences. women’s aid stated that: ‘[w]e’re proud to have advised on the domestic abuse storyline for popular bbc radio 4 soap the archers which highlighted the insidious nature of coercive control and its corrosive effect on victims. millions of listeners tuned in to hear what would happen to helen as she faced the coercive and controlling abuse of her husband rob, …the storyline has led to more women coming forward to access our services and find the help they need.’ the office holders from the leading vaw organisations also appeared on various mainstream television and radio programmes, sometimes with cast members from the archers or with the editor. refuge noted that as a result of the media coverage they had been able to share their, ‘messaging on domestic violence in every national newspaper, on the bbc breakfast sofa and on woman’s hour’. women’s aid and refuge issued several press releases on the archers as the story progressed. they pointed out that although they had acted as consultants they had no influence on the outcome. the vaw organisations used the archers as a hook for their campaigning work, for example refuge had louiza patikas, the actor who plays helen, join them on their annual fundraising walk to generate publicity as the walk coincided with one of the climactic episodes of the drama. vaw activists were able to draw on their vast expertise to confirm the credibility of the plot to the audience, and shape understandings of the fictional characters’ travails. for example, in the storyline there was criticism from listeners of the middle class setting of the drama, and claims that it was unrealistic that helen’s mother pat archer, a self-declared feminist, would be deceived by rob. women’s aid and refuge used this as a chance to stress the universal nature of coercive control as a wrong that traverses class boundaries, and cautioned that perpetrators could deceive anyone no matter how politically aware. helen’s decision not to pursue a prosecution was described ‘as no surprise to women’s aid’ and in the same press release the chair of women’s aid relates that this is a typical reaction and perhaps if better support services were available helen might have made a different decision. it was also explained that violence by victims is extremely unusual, but that often when women decide to leave the risk of harm increases. refuge reported that they ‘shared messages in real time as rob titchener’s abuse escalated. through twitter and facebook, refuge shared with new audiences how to spot the signs of domestic abuse, how to access support and how to help a friend.’ both refuge and women’ aid were at the heart of the discussion on social media forums, their tweets and facebook posts offering their own insights into the story. for instance, one tweet by women’s aid commenting on an episode where helen and rob’s public appearance was discussed by the villagers, warned ‘“he seemed so devoted” this can be a sign of coercive control’, and another tweet by women’s aid observes that ‘[w]e see how victims can be so paralysed with fear that they cannot speak out’. the hashtags included #free helen, #free henry #helenandrob and the most playful, the #solidaritea with helen campaign. this was used during the fictitious trial where celebrities and others tweeted pictures of themselves drinking tea with helen’s portrait on the mug. this defused the tension with humour and further publicised the storyline. the participation by vaw organisations and others in ‘#hashtag activism’ or ‘#hashtag feminism’ continued as the story played out. sometimes this was part of ‘tweet-a-longs’ initiated by the official archers twitter account, @bbcthearchers, that took place during the broadcast of the archers. the hashtags permitted individuals, including victims of coercive control, organisations, celebrities and professionals to connect on twitter, to comment on events and to share stories. for example, the chair of women’s aid tweeted after the broadcast of an episode of the archers, ‘"how desperate would you have to be to leave your own home?" that's why @womensaid say stop asking "why doesn't she just leave" #freehelen’ this was followed by tweets including from a survivor of coercive control. lawyers also tweeted commenting on the law and on the veracity of the court proceedings with one barrister joking that he was willing to represent helen along with most of the criminal bar. discursive activism on social media, as practised by the vaw campaigners, has been especially apposite for work on domestic violence and sexual abuse. these new spaces have been used by feminists to resist oppressive discourses of gender-based violence in news and entertainment media. the more established feminist groups with the resources of communications officers, the ability to frequently update their online presence and produce interesting content are at an advantage in these online conversations. this may be at the expense of smaller groups representing more marginalised constituencies. there is also the danger of online abuse by trolls and the over exposure of vulnerable individuals. despite these hazards, social media sites such as twitter can help to facilitate diversity in the discussion as individuals who want to join in a conversation can do so independently without organisations acting as gatekeepers. victims may gain a sense of solidarity and support as well as finding out about useful services. in the helen/rob story the online activism enabled those who had suffered domestic violence to intervene, to compare their experience to helen’s, and to connect with others. additionally, the vaw activists helped to steer the narrative in a decidedly feminist direction. for example, a spokesperson for women’s aid remarking on the archers plot stated that: ‘a huge number of people are now identifying with a survivor of coercive control – a woman who may now be facing a wall of disbelief and blame on all sides…male violence is the root of the problem, that’s for sure – but any retaliation by a woman is punished with crushing severity, that is reality. and it does happen…i hope the empathy with helen will make this injustice felt, will hold up a mirror to the victim-blaming and failure to understand domestic abuse that runs so deep through our society and all its institutions.’ the comments focus on the gendered aspect of domestic violence. these include highlighting the exercise of power, the culture of disbelief and institutional misogyny rather than minimising the violence, seeing it as exceptional or attributing it to the perpetrator’s violent personality. there is a clear attempt to undermine the myths surrounding domestic violence and to evince a feminist perspective. in short, vaw activists inserted themselves into all of the public spaces surrounding the drama in order to participate in the discussion. they offered up real cases and experiences of domestic violence to stress the authenticity of the different scenarios, and their connection to the everyday reality of physical and psychological abuse. they joined with the programme makers, actors, mps and others to create as much publicity as possible using traditional campaigning methods and creating new ones. in doing so they implicitly recognised that campaigning successfully for law reform was not in itself going to shift the discourse on domestic violence, and that there was a need to circulate feminist understandings that challenged the dominant norms. the archers as a tool for social action: proceed with caution? the helen/rob story in the archers was a chance for vaw activists to seize the moment and to use the plot line to mobilise support for the law on coercive control, and to help change the public and legal mindset on domestic violence. feminist campaigning and mobilising often starts from the position of the subjective voice and lived realities of individuals, and dramas complement such a dynamic. this is especially true of soap operas, which are one of the few genres where women’s voices have dominated. women who had been victims of coercive control expressed satisfaction at being able to give their own account of the trauma they had endured directly to the actors and writers of the archers. as feminist campaigns must be inclusive and participative and ‘leave no one behind’, giving a voice to victims of domestic violence was all-important. however, the archers has long been criticised for its failure to properly challenge the treatment of the working-class characters who are employed on the farms as workers and domestics in the village. there are also very few bame characters in the archers and there has only been the occasional storyline that has dealt with racism. the helen/rob story did include a woman of colour, kaz, who had been abused by her husband, and became friends with helen when she was in prison awaiting trial; she was responsible for persuading her to speak out about rob’s abuse. unfortunately, there was no attempt to develop her story further or to tackle the issues of racism that kaz is likely to face as she deals with her abusive partner. this inadequacy in the plot is problematic for activists engaging with the programme. whilst the way that popular culture is disseminated is complex it is unlikely to be influential unless it reflects lived realities. for social activists it is imperative to develop strategies that might mitigate this, otherwise their efforts will not be sufficiently inclusive, and diverse. there may also be a disjunction between the aims of the creators of the soap opera and the vaw activists. in her study of the production process of television soaps henderson found that production teams varied in their use of outside research with charities and other professionals. when there was collaboration there was a distinct power imbalance in favour of the producers. there are some well know examples where the activists who supported a storyline have been dissatisfied with its conclusion. in 1994 it was suggested that one of the well-known characters, a victim of child sexual abuse, in the brookside domestic violence storyline was to commit suicide in her prison cell. this led to protests outside channel 4’s offices. the feminist group zero tolerance objected because it undermined the portrayal of the character as someone who was resilient and capable of leading a fulfilled life after enduring sexual abuse. the lack of control over the storyline may make it more difficult for activists to frame events or vernacularise the relevant principles and norms. the producers will normally adopt the most dramatic storyline. for example, o’connor admits that it was decided that in the archers helen would not kill rob. if rob lived and helen was charged with attempted murder then he could give evidence against her and this would create greater dramatic tension. nevertheless, o’connor did show a genuine interest in working with vaw activists to ensure accuracy and had a track record as a producer of eastenders responsible for a similar domestic abuse storyline. a less skilled or thoughtful editor might misrepresent or oversimplify the presentation of psychological domestic violence. such a portrayal would be difficult for activists to counter. in fact, o’connor later wrote an article on what he claimed was the public fascination with women who kill. he included sally challen in his discussion of real and fictional women who had killed and made references to the rob/helen story. david challen, sally challen’s son who had led the campaign to free her, took exception to this. he praised o’connor’s stewardship of the helen/rob story in the archers, but he pointed out that his mother’s case was one of coercive control and that it was ‘monstrous to frame and portray these stories in this manner’. there is also the possibility that the audience may feel preached at by the storyline. this is something of which various editors of the archers have had to be attentive. the appointment of the first women editors of the archers and the subsequent development of the women characters led to a backlash and accusations that the plots had an overtly feminist agenda. even though most coverage of the helen/rob storyline was constructive there were some dissenting voices that objected to the one-sidedness of the story that encouraged neighbours to pass judgements on intimate relationships. that said, the archers has always had an ethos rooted in the need to educate and inform. this has expanded from the farming storylines of the early years to other aspects of economic, social and cultural lives of the characters. if the stories are not of high quality and do not resonate then they will fall flat. so for social activists there is always a risk that the quality of the drama and the commitment of the editors might not be compatible with a feminist agenda. finally, there are some areas of the legal experience that may be omitted or are not stressed sufficiently. for instance, in the helen/rob story the insufficiencies of the legal aid system were touched on but not fully explored. helen’s family are relatively wealthy and with some struggle were able to pay the legal expenses. the impact of austerity and the closure of domestic violence shelters, making it more difficult to leave a coercive relationship, was not probed in the programme. this criticism was acknowledged by women’s aid, but they justified their involvement on the grounds that the archers did so much to raise awareness of coercive control. in fact the vaw activists did use the programme to campaign on this issue, drawing attention to refuge closures and stating as part of their publicity that ‘domestic abuse refuges that support real life helens are in crisis again’. this underlines the need for activists to elaborate on some of these problems but it cannot totally make up for their absence from the plot. conclusion through the medium of the radio, the audience of the archers and the wider public were made aware of the phenomenon of coercive control, and its destructive effect. the drama, by showing rather than telling, effectively challenged many of the embedded assumptions about domestic violence more directly than campaigns involving protests, marches and petitions undertaken by vaw activists could have done. kirsty’s memorable outburst in court at the height of the drama not only provided a moment of relief for the listener, who had been privy over a number of years to rob’s psychological and physical abuse of helen, but succinctly described the nature of coercive control. ‘rob titchener is the worst kind of abuser, one that doesn’t leave any bruises. he lies and he bullies and he manipulates… he tried to destroy my best friend and he’s still doing it.’ the story allowed the listener to be a fly on the wall and to hear in forensic detail how perpetrators are able to wear their victims down and undermine their sense of self. its occurrence in the quintessentially english setting, with its cultural emblems of afternoon tea, cricket, the pantomime and the village fete emphasised the ubiquity of domestic abuse. the success of the drama was not solely due to the quality of the work and its location on bbc radio 4. the helen/rob storyline provided a significant opening for vaw activists to support and amplify the drama’s demonstration of coercive control. they were able to frame the debate on domestic abuse by articulating feminist ideas and applying them to the storyline. their voices carried weight and they were able to validate to the listener the thoughts and feelings of an individual being psychologically and physically abused in a familiar domestic setting. their discursive activism took advantage of a relatively sympathetic political and legal climate, much of which they had worked hard towards creating themselves. the helen/rob episode in the archers demonstrates the potential of popular culture to portray the complexities of domestic violence, provide alternative explanations for victims’ conduct and make visible hidden power structures. for legal feminists concerned that laws may be ignored or undermined by inimical narratives that impair the law’s implementation, radio and tv drama provides a method of reaching not only the general public, but the legal community responsible for interpreting and applying the law. notwithstanding the possible pitfalls of working with those in the media who may have a different agenda, vaw activists and others should be proactive in instigating and supporting the use of narrative fiction when campaigning on law reform. they should seek out sympathetic writers and producers, and remain open to the possibility of a drama, such as a radio soap, being a valuable and creative forum to disseminate feminist knowledge, thus helping to cultivate a more favourable legal environment for the enforcement of the law. * reader in law, westminster law school, university of westminster, uk. email � hyperlink "mailto:h.samuels@westminster.ac.uk" �h.samuels@westminster.ac.uk� the author is grateful to danny nicol, esther raffell and the anonymous referees for their feedback on earlier versions of this work. � british broadcasting corporation (bbc) radio 4, the archers <� hyperlink "https://www.bbc.co.uk/programmes/b006qpgr" �https://www.bbc.co.uk/programmes/b006qpgr�> accessed 8 february 2020 � gillian reynolds, ‘the archers’ defence of “coercive control” gets its day in court’ the sunday times (london 4 march 2018) <� hyperlink "http://www.thetimes.co.uk/article/the-archers-defence-of-coercive-control-gets-its-day-in-court-cmp9wkr7k" �www.thetimes.co.uk/article/the-archers-defence-of-coercive-control-gets-its-day-in-court-cmp9wkr7k�> accessed 8 february 2020 � kathryn c. montgomery, target prime time: advocacy groups and the struggle over entertainment television (oxford university press 1989) � see sarah projansky, watching rape: film and television in postfeminist culture (new york university press 2001) � sean o’ connor, ‘hiddleston, hitchcock and the archers’ crime readers’ association, 23 april 2019 <� hyperlink "https://thecra.co.uk/hiddleston-hitchcock-archers-sean-oconnor/" �https://thecra.co.uk/hiddleston-hitchcock-archers-sean-oconnor/�> accessed 5 february 2019. � carol smart, feminism and the power of law (routledge 1989) � rosemary hunter, domestic violence law reform and women’s experience in court: the implementation of feminist reforms in civil proceedings (cambria press 2008) � smart (n 6); rosemary hunter, ‘narratives of domestic violence’ (2006) 28 (4) sydney law review 733 � ruth fletcher, ‘#repealed the 8th::translating travesty, global conversation and the irish abortion referendum’ (2018) 26 (3) feminist legal studies 223 � for a definition of popular culture see lawrence m. friedman, ‘law, lawyers, and popular culture’ (1989) 98 (8) yale law journal 1579 � paul kerley and clare bates, ‘the archers: what effect has the rob and helen story had?’ bbc news magazine (london 5 april 2016) <� hyperlink "https://www.bbc.co.uk/news/magazine-35961057" �https://www.bbc.co.uk/news/magazine-35961057�> accessed 8 february 2020 � heidi noel nariman, soap operas for social change: toward a methodology for entertainment-education television (praeger 1993) � see generally l.j. shrum, the psychology of entertainment media: blurring the lines between entertainment and persuasion (routledge 2012). consider, for example, the impact of the bbc drama cathy come home on housing law and policy. suzanne fitzpatrick and hal pawson, ‘fifty years since cathy come home: critical reflections on the uk homelessness safety net’ (2016) 16 (4) international journal of housing policy 543 � shrum (n 13) 19 � miguel sabido, ‘the origins of entertainment-education’ in arvind singhal, michael j. cody, everett m. rogers and miguel sabido (eds), entertainment-education and social change: history, research and practice (lawrence erlbaum associates 2004) 61-74, 73 � michael j. cody, sangeeta fernandes and holly wilkin, ‘entertainment-education programs of the bbc and bbc world service trust’ in singhal, cody, rogers and sabido (eds) (n 15) 244-259 � vanessa whitburn, the official inside story of the archers: the changing face of radio’s longest running drama (virgin publishing 1997) 10 � john reith was the ‘founder’ of the bbc and was its first director general. for a history of the bbc see jean seaton, pinkoes and traitors: the bbc and the nation, 1974-1987 (profile books 2015) � lesley henderson, social issues in television fiction (edinburgh university press 2007) 6 � helen daly, ‘coronation street’s geoff and yasmeen abuse plot might just be its most important ever’ radio times (london 16 january 2020) <� hyperlink "https://www.radiotimes.com/news/soaps/coronation-street/2020-01-16/geoff-metcalfe-yasmeen-nazir-abuse-plot/" �https://www.radiotimes.com/news/soaps/coronation-street/2020-01-16/geoff-metcalfe-yasmeen-nazir-abuse-plot/�> accessed 13 february 2020 � ‘history of the bbc’, bbc website <� hyperlink "https://www.bbc.co.uk/programmes/p0168wd7" �https://www.bbc.co.uk/programmes/p0168wd7�> accessed 8 february 2020 � ‘history of the bbc’, bbc website <� hyperlink "https://www.bbc.co.uk/programmes/p05dpy20" �https://www.bbc.co.uk/programmes/p05dpy20�> accessed 8 february 2020 � for an account of the helen/rob story see bbc radio 4: the archers website, ‘helen and rob: the full story’ <� hyperlink "https://www.bbc.co.uk/programmes/articles/kvl2b9gbzsj8xfkzsgqrcj/helen-and-rob-the-full-story" �https://www.bbc.co.uk/programmes/articles/kvl2b9gbzsj8xfkzsgqrcj/helen-and-rob-the-full-story�> accessed 8 february 2020 � for biographies of the fictional characters see bbc radio 4 the archers website <� hyperlink "https://www.bbc.co.uk/programmes/profiles/3vlg6mxxfqpkxf2chky4fmh/characters" �https://www.bbc.co.uk/programmes/profiles/3vlg6mxxfqpkxf2chky4fmh/characters�> accessed 8 february 2020 � lyn thomas, ‘the archers and its listeners in the twenty first century: drama, nostalgia and the rural everyday’ in cara courage, nicola headlam and peter matthews (eds), the archers in fact and fiction: academic analyses of life in rural borsetshire (peter lang 2017) 5-19, 16 � women’s aid, annual review 2015-16 (2016) 6 <� hyperlink "https://1q7dqy2unor827bqjls0c4rn-wpengine.netdna-ssl.com/wp-content/uploads/2015/11/annual-review-2015-2016-final-no-pm.pdf" �https://1q7dqy2unor827bqjls0c4rn-wpengine.netdna-ssl.com/wp-content/uploads/2015/11/annual-review-2015-2016-final-no-pm.pdf�> accessed 11 february 2020 � rebecca pow (conservative) mp, hc deb 8 december 2016, col 421. � kate holman, ‘eastenders’ sean o’ connor: “they’re more than characters, they’re your mates”’ (royal television society 21 march 2017) <� hyperlink "https://rts.org.uk/article/eastenders-sean-oconnor" �https://rts.org.uk/article/eastenders-sean-oconnor�> accessed 8 february 2020 � o’connor in reynolds (n 2). for more detail see the discussion below ‘planting feminist seeds: intervening in the public conversation’ � refuge, ‘the archers and refuge’ <� hyperlink "https://www.refuge.org.uk/our-work/campaigns/more-refuge-campaigns/the-archers-and-refuge/" �https://www.refuge.org.uk/our-work/campaigns/more-refuge-campaigns/the-archers-and-refuge/�> accessed 8 february 2020 � serious crime act s 76 (1). see also the statutory guidance issued under s 77 serious crime act 2015: home office, controlling or coercive behaviour in an intimate or family relationship, statutory guidance (december 2015) <� hyperlink "https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/482528/controlling_or_coercive_behaviour_-_statutory_guidance.pdf" �https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/482528/controlling_or_coercive_behaviour_-_statutory_guidance.pdf�> accessed 12 february 2020 � home office, strengthening the law on domestic abuse consultation, 20th august 2014. <� hyperlink "https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/344674/strengthening_the_law_on_domestic_abuse_-_a_consultation_web.pdf" �https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/344674/strengthening_the_law_on_domestic_abuse_-_a_consultation_web.pdf�> accessed 29 october 2019. on implementing the law see cassandra weiner, ‘seeing what is “invisible in plain sight”: policing coercive control’ (2017) 56 howard journal of crime and justice 500 � see further nicola padfield, ‘controlling or coercive behaviour in an intimate or family relationship’ (2016) 12 (3) criminal law review 149; vanessa bettinson, ‘criminalising coercive control in domestic violence cases: should scotland follow the path of england and wales?’ (2016) 12 (3) criminal law review 166. � serious crime act 2015 s 76 (1) (2) and (3) � ibid s 76 (1) and (5) � ibid s 76 (4) � ibid s 76 (8)-(10) � domestic abuse bill 2019-21 clause 1 � home office, transforming the response to domestic abuse: consultation response and draft bill (cp15, 2019) � r v challen [2019] ewca crim 916 � vanessa bettinson, ‘sally challen: what quashing of murder conviction means for similar cases alleging coercive control’ the conversation (4 march 2019) <� hyperlink "https://theconversation.com/sally-challen-what-quashing-of-murder-conviction-means-for-similar-cases-alleging-coercive-control-112739" ��https://theconversation.com/sally-challen-what-quashing-of-murder-conviction-means-for-similar-cases-alleging-coercive-control-112739�> accessed 17 october 2019 � jamie doward, ‘justice system smeared our mother, say sally challen’s sons’ the guardian (london 8 june 2019) <� hyperlink "https://www.theguardian.com/law/2019/jun/08/sally-challen-sons-justice-system-smeared-our-mother" �https://www.theguardian.com/law/2019/jun/08/sally-challen-sons-justice-system-smeared-our-mother�> accessed 11 february 2020 � reynolds (n 2) � jon robins, ‘coercive behaviour in the spotlight’ criminal law and justice weekly (17 march 2018) 182 � david brown, ‘sally challen mounts first “coercive control” appeal against murder conviction’ the times (london, 27 february 2019) <� hyperlink "https://www.thetimes.co.uk/article/killer-wife-mounts-coercive-control-appeal-qt7n820zv" �https://www.thetimes.co.uk/article/killer-wife-mounts-coercive-control-appeal-qt7n820zv�> accessed 8 february 2020 � sarah bell, ‘the archers made me realise i was a victim of domestic abuse’ bbc news (7 march 2018) <� hyperlink "https://www.bbc.co.uk/news/entertainment-arts-43317137" �https://www.bbc.co.uk/news/entertainment-arts-43317137�> accessed 2 february 2020; helen walmsley-johnson, look what you made me do (picador 2019) � smart (n 6) 164 � ibid 165 � ibid 5 � ibid 165 � rosemary auchmuty and karin van marle, ‘special issue: carol smart’s feminism and the power of law’ (2012) 20 feminist legal studies 65 � carol smart, ‘reflection’ (2012) 20 feminist legal studies 161 � stacey young, changing the wor(l)d: discourse, politics and the feminist movement. (routledge 1997) � ibid � hunter (n 7) 20-24 � ibid 25-31 � ibid 31-37 � michelle lloyd and shula ramon, ‘smoke and mirrors: uk newspaper representations of intimate partner domestic violence’ (2017) 23 (1) violence against women 1, 19 � jh v mf [2020] ewhc 86 [fam] � ibid para 59 � ‘family courts “not safe space” for domestic abuse survivors’ bbc news (24 january 2020) <� hyperlink "https://www.bbc.co.uk/news/uk-51237285" �https://www.bbc.co.uk/news/uk-51237285�> accessed 11 february 2020 � see goffman’s seminal text: erving goffman, frame analysis: an essay on the organisation of experience (harper and row 1974). for an overview of framing see robert d. benford and david a. snow, framing processes and social movements: an overview and assessment (2000) 26 annual review of sociology 611 � for a discussion of framing in relation to vaw see shazia choudhry, ‘towards a transformative conceptualisation of violence against women: a critical frame analysis of council of europe discourse on violence against women’ (2016) 79 (3) modern law review 406. � david a. snow, ‘framing processes, ideology and discursive fields’ in david a. snow, sarah a. soule and hanspeter kriesi (eds), the blackwell companion to social movements (blackwell publishing 2004) 385 � seyla benhabib, ‘claiming rights across borders: international human rights and democratic sovereignty’ (2009) 103 (4) american political science review 697. � ibid 701 � seyla benhabib, ‘the legitimacy of human rights’ (2008) 137 (3) daedalus 94, 101. � peggy levitt and sally merry, ‘vernacularisation on the ground: local uses of global women’s rights in peru, china, india and the united states’ (2009) 9 global networks 441. � ibid 448 � ibid 447-448 � ibid 549 � david hendy, life on air: a history of radio four (oxford university press 2007) 1. � lyn thomas, fans, feminisms and ‘quality’ media (routledge 2002) 31 � david hendy, radio in the global age (polity press 2000) 119 � thomas (n 73) 136 � cara courage and nicola headlam, ‘in conversation with alison hindell’ in cara courage and nicola headlam (eds), gender, sex and gossip in ambridge: women in the archers (emerald publishing 2019) 11-20, 16. � yemshaw v hounslow lbc [2011] uksc 3; simon hattenstone, ‘lady hale “’my desert island judgments? number one would probably be the prorogation case’” the guardian (london 11 january 2020) <� hyperlink "https://www.theguardian.com/law/2020/jan/11/lady-hale-desert-island-judgments-prorogation-case-simon-hattenstone" �https://www.theguardian.com/law/2020/jan/11/lady-hale-desert-island-judgments-prorogation-case-simon-hattenstone�> accessed 12 february 2020 � an internet search elicits dozens of blogs on the website of solicitors’ firms discussing the rob/helen story. a typical example is tamara glanville, ‘family relationships in bbc’s the archers’ family law blog, woolley and co solicitors (1 january 2015) <� hyperlink "https://www.family-lawfirm.co.uk/blog/bbc-4s-the-archers-adultery-coercion-and-family-relationships/" �https://www.family-lawfirm.co.uk/blog/bbc-4s-the-archers-adultery-coercion-and-family-relationships/�> accessed 8 february 2020 � see for example elizabeth fletcher, ‘what the archers can teach us about grandparents’ rights’ (2016) 160 (22) solicitors journal 5; felicity kaganas, ‘the archers: law on child contact arrangements means helen titchener’s ordeal is not yet over’ the independent (16 september 2016) <� hyperlink "https://www.independent.co.uk/life-style/health-and-families/the-archers-law-on-child-contact-arrangements-means-helen-titchener-s-ordeal-is-not-yet-over-a7309301.html" �https://www.independent.co.uk/life-style/health-and-families/the-archers-law-on-child-contact-arrangements-means-helen-titchener-s-ordeal-is-not-yet-over-a7309301.html�> accessed 14 february 2020 � most of the legal commentary was positive but there was the occasional dissenting voice. for example, one article quoted a former chair of the criminal law committee of the law society who criticised the over-emphasis of the role of helen’s barrister at the expense of her solicitor as being misleading. see luke heighton, ‘solicitors slam the archers for creating “unrealistic” expectations of the british legal system’ the telegraph (london 10 september 2016) <� hyperlink "https://www.telegraph.co.uk/news/2016/09/10/solicitors-slam-the-archers-for-creating-unreaslistic-expections/" �https://www.telegraph.co.uk/news/2016/09/10/solicitors-slam-the-archers-for-creating-unreaslistic-expections/�> accessed 11 february 2020 � laura richards, ‘a breakthrough victory for the domestic violence law reform campaign’ the blog, huffington post uk (london, 23 december 2014) <� hyperlink "https://www.huffingtonpost.co.uk/laurarichards/a-breakthrough-victory-fo_b_6371840.html" �https://www.huffingtonpost.co.uk/laurarichards/a-breakthrough-victory-fo_b_6371840.html�> accessed 11 february 2020 � benhabib (n 65) 701 � these tweets are reproduced in kirsty marrows, ‘five lessons from refuge and the helen titchener fund’ third sector (5 april 2016) <� hyperlink "https://www.thirdsector.co.uk/five-lessons-refuge-helen-titchener-fund/digital/article/1390124" �https://www.thirdsector.co.uk/five-lessons-refuge-helen-titchener-fund/digital/article/1390124�> accessed 9 february 2020 � women’s aid (n 26) � refuge, annual report and financial statements 2016-17 (2017) 37 <� hyperlink "https://www.refuge.org.uk/wp-content/uploads/2018/04/refuge-annual-report-and-financial-accounts-2016-17.pdf" �https://www.refuge.org.uk/wp-content/uploads/2018/04/refuge-annual-report-and-financial-accounts-2016-17.pdf�> accessed 11 february 2020 � refuge, ‘the archers and refuge’<� hyperlink "https://www.refuge.org.uk/our-work/campaigns/more-refuge-campaigns/the-archers-and-refuge/" �https://www.refuge.org.uk/our-work/campaigns/more-refuge-campaigns/the-archers-and-refuge/�> accessed 11 february 2020 � refuge, ‘refuge responds to the archers “not guilty” verdict’ (11 september 2016) <� hyperlink "https://dev.refuge.org.uk/refuge-responds-to-the-archers-not-guilty-verdict/" �https://dev.refuge.org.uk/refuge-responds-to-the-archers-not-guilty-verdict/� > accessed 12 february 2020 � refuge (n 86) � polly neate, ‘the archer’s domestic abuse plot should end in tragedy-that’s the reality’ the telegraph (london 18 march 2016) <� hyperlink "https://www.telegraph.co.uk/women/life/the-archers-domestic-abuse-plot-should-end-in-tragedy---thats-th/" �https://www.telegraph.co.uk/women/life/the-archers-domestic-abuse-plot-should-end-in-tragedy---thats-th/�> accessed 11 february 2020; ‘anyone could be vulnerable to a man like rob’ bbc radio 4 woman’s hour (29 march 2016) <� hyperlink "https://www.bbc.co.uk/programmes/p03pcy7b " �https://www.bbc.co.uk/programmes/p03pcy7b �> accessed 9 february 2020 � polly neate, ‘helen decides not to press charges against rob: our response’ (21 october 2016) <� hyperlink "https://www.womensaid.org.uk/helen-decides-not-press-charges-rob-response/" �https://www.womensaid.org.uk/helen-decides-not-press-charges-rob-response/�> accessed 9 february 2020 � refuge, refuge for women and children against domestic violence: annual report 2015-16 (2016) 35 � see nicola slawson, ‘helen titchener trial verdict in the archers lights up social media’ the guardian (london 11 september 2016) <� hyperlink "https://www.theguardian.com/tv-and-radio/2016/sep/11/the-archers-verdict-on-helen-titchener-lights-up-social-media" �https://www.theguardian.com/tv-and-radio/2016/sep/11/the-archers-verdict-on-helen-titchener-lights-up-social-media� > accessed 11 february 2020 �women’s aid, @womensaid, ‘“he seemed so devoted” this can be a sign of coercive control’ (6 april 2016 <� hyperlink "https://twitter.com/womensaid/status/717775794874003462?ref_src" �https://twitter.com/womensaid/status/717775794874003462?ref_src� > accessed 9 february 2020 � ‘why people are showing solidari-tea for helen and real life women in similar situations by tweeting #free helen’ bbc radio 4 (september 2016) <� hyperlink "https://www.bbc.co.uk/programmes/articles/1jhvrcgp8skcscm7thdnbvq/why-people-are-showing-solidari-tea-for-helen-and-real-life-women-in-similar-situations-by-tweeting-freehelen" �https://www.bbc.co.uk/programmes/articles/1jhvrcgp8skcscm7thdnbvq/why-people-are-showing-solidari-tea-for-helen-and-real-life-women-in-similar-situations-by-tweeting-freehelen�> accessed 30 january 2020 � for a discussion of hashtag feminism see gina masullo chen, paromita pain and briana barner,‘“hashtag feminism”: activism or slacktivism?’ in dustin harp, jaime loke, and ingrid bachmann (eds), feminist approaches to media theory and research, (palgrave macmillan 2018) 197-218 � polly neate, @pollyn1 (9 september 2016) <� hyperlink "https://twitter.com/pollyn1/status/774310131412656128" �https://twitter.com/pollyn1/status/774310131412656128�> accessed 3 february 2020 � this tweet is quoted in jess denham, ‘the archers: “realisti”’ domestic abuse storyline praised by charities as helen titchener fund donations flood in’ the independent (4 april 2016) <� hyperlink "https://www.independent.co.uk/arts-entertainment/tv/news/the-archers-realistic-domestic-abuse-storyline-wins-praise-from-charities-as-donations-flood-in-a6967801.html" �https://www.independent.co.uk/arts-entertainment/tv/news/the-archers-realistic-domestic-abuse-storyline-wins-praise-from-charities-as-donations-flood-in-a6967801.html�> accessed 29 october 2019 � rosemary clark, ‘“hope in a hashtag”: the discursive activism of #why i stayed’ (2016) 5 feminist media studies 788 � ibid 789 � aristea fotopoulou, feminist activism and digital networks: between empowerment and vulnerability (palgrave macmillan 2019) � clark (n 98) 800 � ibid 797 � suzie marwood, ‘women’s aid and the archers: the drama of domestic abuse’ (6 april 2016) <� hyperlink "https://www.womensaid.org.uk/the-drama-of-domestic-abuse-womens-aid-the-archers/" �https://www.womensaid.org.uk/the-drama-of-domestic-abuse-womens-aid-the-archers/�> accessed 9 february 2020 � hunter (n 7) 19-37 � mary ellen brown, soap opera and women’s talk: the pleasure of resistance (sage publications 1994) � see the comments from a ‘survivor ambassador’ from women’s aid, mandy thomas, ‘domestic abuse “i am a real life helen” mumsnetguestposts (4 april 2016) <� hyperlink "https://www.mumsnet.com/talk/guest_posts/2607008-guest-post-domestic-abuse-i-am-a-real-life-helen-warning-upsetting-content?messages=100&pg=1" �https://www.mumsnet.com/talk/guest_posts/2607008-guest-post-domestic-abuse-i-am-a-real-life-helen-warning-upsetting-content?messages=100&pg=1�> accessed 12 february 2020 � fletcher (n 9) � thomas ( n 25) 11 � ‘amaka okafor on playing kaz’ the archers bbc radio 4 <� hyperlink "https://www.bbc.co.uk/programmes/articles/5r8c6f3tdzvyhbnjqhhzbhl/amaka-okafor-on-playing-kaz" �https://www.bbc.co.uk/programmes/articles/5r8c6f3tdzvyhbnjqhhzbhl/amaka-okafor-on-playing-kaz�> accessed 9 february 2020 � lieve gies, ‘explaining the absence of the media in stories of law and legal consciousness’ (2003) 2 (1) entertainment law review 19, 49 � henderson (n 19) 73 � ibid 4 � sean o’connor ‘from clytemnestra to villanelle: why are we fascinated by women who kill?’ the guardian (london 20 july 2019) <� hyperlink "https://www.theguardian.com/books/2019/jul/20/women-who-kill-female-murderers-killing-eve" �https://www.theguardian.com/books/2019/jul/20/women-who-kill-female-murderers-killing-eve� > accessed 12 february 2020 � reynolds (n 2) � david challen@david challen (21 july 2019) � hyperlink "https://twitter.com/david_challen/status/1152842305574965248?lang=en" �<https://twitter.com/david_challen/status/1152842305574965248?lang=en�> accessed 12 february 2020 � william smethurst, the archers: the true story (michael o mara books 1996). see also thomas (n 73) 43 � claire fox, ‘an abuse of the archers: why is everyone reacting to the helen and rob storyline as though they were real people?’ the spectator (london 17 september 2016) � gies (n 110) 49 � women’s aid, ‘as “the archers trial week” begins, refuges in england and wales are in crisis’ (5 september 2016) <� hyperlink "https://www.womensaid.org.uk/archers-trial-week-begins-67-refuges-england-69-refuges-wales-face-closure/" �https://www.womensaid.org.uk/archers-trial-week-begins-67-refuges-england-69-refuges-wales-face-closure/�> accessed 11 february 2020 � ‘the moment when kirsty becomes our hero’ bbc radio 4 (5 september 2016) <� hyperlink "https://www.bbc.co.uk/programmes/p046x4bt" �https://www.bbc.co.uk/programmes/p046x4bt�> accessed 8 february 2020 ___________________________________________________________________________ 30 ___________________________________________________________________________ 29 swaine conflict-related violence against women __________________________________________________________________________________ feminists@law vol 9, no 1 (2019) __________________________________________________________________________________ re-shaping how political settlements engage with conflict-related violence against women aisling swaine[footnoteref:1]* [1: * associate professor, department of gender studies, london school of economics and political science, uk. email a.swaine@lse.ac.uk. the guidance, support and inputs of catherine o’rourke and christine bell throughout the political settlements research programme (prsp) have been invaluable to the development of this paper. thanks also to fionnuala ní aoláin and brandon hamber for inputs to earlier iterations of this paper. the article is an output of the political settlements research programme (psrp), funded by uk aid from the uk department for international development (dfid) for the benefit of developing countries. the information and views set out in this paper are those of the author. nothing herein constitutes the view of the department, or has been subject to input by the department. ] abstract the exceptionalism attributed to acts of sexualised violence in war has reinforced the idea that what happens in war is different from that occurring outside of war. this counters long-standing feminist scholarship which has argued that violence against women (vaw) in conflict is a reflection of the everyday, mundane ways that women experience violence in their everyday lives. the paper presents a new ‘pre, duringand post-conflict framework’ to map, on the basis of theory and empirics, the inter-relationship between vaw within and outside conflict. applied to the case study of timor-leste, the paper finds that common across time and space are the sustained presence of gendered harms, and that vaw is ambulant in nature and responsive to context, identifying connections and distinctions in vaw across conflict-time and peace-time. through analysis of the timor-leste truth commission’s outcomes, the paper argues that an understanding of this complexity to vaw is essential to advancing gender-inclusive political settlements. the findings underline that sustaining an approach to conflict-time violence out of sync with how women experience violence within political processes means sustaining the structural inequalities that cause that violence, regardless of whether it is during or outside of armed conflict. key words: conflict-related violence against women; conflict-related sexual violence; continuums; gender; feminist legal theory; strategic rape; timor-leste; truth commission. introduction the question of whether the violence that occurs during war is exceptional in respect of the violent act and thereby ‘different’ from the violence that occurs outside of war remains under debate, not least in relation to conflict-related violence against women (crvaw).[footnoteref:2] recent scholarship has estimated that the ‘innovations in sexual brutality that we observe on the part of some armed organisations (e.g. rape with guns, sexual mutilation etc.), [are] innovations that would appear to have little precedent in peacetime’ (wood, 2014). global law and policy on conflict-related sexual violence (crsv)[footnoteref:3] has evolved as a result of and has propagated this same perceived exceptionalism, shaped around the idea of specific forms of armed and politically motivated ‘strategic rape’ (eriksson baaz and stern, 2013). while legal capture of crsv has been critical to making those harms visible (engle, 2005), accountability has also broadly served to address strategic sexualised violence distinct from wider forms of crvaw, and in ways that gendered violence outside of armed conflict has simply not achieved at global levels. while critical to advancing visibility and accountability for those harms, these developments have prompted an increasingly dichotomous approach to addressing the violence in women’s lives, entrenching the idea of difference between what happens within and outside of conflict, and that each requires a differential response and understanding. [2: i use the term conflict-related violence against women (crvaw) throughout the article to refer to all forms of physical, sexual, economic, psychological, emotional harms and abuse that may be directly or indirectly related to a conflict, may be enacted by armed and non-armed/civilian actors and take place in the context of a conflict setting.] [3: i use the term conflict-related sexual violence (crsv) to refer to forms of sexualised harms that may be directly or indirectly related to a conflict, may be enacted by armed and non-armed/civilian actors and take place in the context of a conflict setting.] feminist scholars have long espoused a counter idea: that what happens in war is in fact a reflection of the everyday, mundane and persistent ways that women experience sexualised and other forms of gendered harm in their everyday lives. the perceived extraordinary eruption of sexualised violence during war is instead understood as an outcome of ongoing and pervasive gendered harms across all societies, whether those societies are engaged in armed conflict or not (ibeanu, 2001). feminists argue that the focus on strategic crsv over broader ranging forms of crvaw, and the dichotomy created between the two, have ‘produced a range of omissions that are contrary to the inclusive, thick account of conflict that many feminist scholars and practitioners aimed to produce’ (buss, 2014, 14). women’s own articulation of the violence in their lives is negated, and its historical prevalence and gendered basis across differing contexts is occluded. while a ‘narrow focus on bodily violation can obscure the wider social context in which abuse occurs’ (ní aoláin, 2009, 240), a focus on ‘thick’ descriptions of physical violence against women (vaw) that also pays attention to their contextual conditioning will deepen understanding of the manifestation of those harms across time and space. tensions between these two different approaches raise critical and as yet unanswered questions. is conflict-time violence different and separate from the ordinary human practice of violence prior to and outside of conflict? can violence be exceptional in prevalence and form in armed conflict, while at the same time be related to the mundane ways of violence outside of conflict? it remains unclear whether this is an either/or scenario. rather, these questions point to the need for further scrutiny of the political, legal and conceptual boundaries that are imposed between conflict and peacetime violence, as well as the special place that is reserved for crsv in the body of knowledge and policy responses to patterns of vaw globally. these questions nudge us towards acknowledging that when we argue that something is exceptional or distinctive, we also need to consider what the context of that comparison is. the temptation to make assumptions about the uniqueness of conflict-time harms when egregious harms take place all around us all the time, just in ways that are hidden or are perceived as normative, must be engaged with. a deeper analysis of the patterns of vaw across inter-related contexts will identify the varying sites, sources and manifestations of violence in women’s lives. it will reveal, as i later argue in this article through analysis of the case study of timor-leste, that there is mutation in forms of vaw across inter-related pre-, duringand post-conflict contexts that are responsive to differing contextual factors and actors present in each period. the inter-relationship between forms of violence within and outside of conflict is therefore more complex than is immediately apparent or assumed. in the context of the political settlements research programme (prsp)[footnoteref:4] under which the research for this paper has advanced, understanding that complexity becomes starkly relevant. this paper responds to a key motivation of the prsp which is to contribute to more rigorous, gender-inclusive post-conflict processes and rule of law institutions. where vaw limits women’s safety, freedom and autonomy, it also inhibits any authority or participation in decision-making (manjoo, 2011), directly relevant to achieving a gender-inclusive settlement. while the prevalence of armed violence is the very reason a political settlement is instigated (ní aoláin, 2016), selectivity in addressing gender and violence has characterised those processes (o’rourke, 2017). feminist scholarship has shown that where vaw has appeared in peace agreements for example, it has done so in ‘oblique’ ways and focused on specific aspects of ‘political’ violence (bell, 2015a, 15). gender analysis based on deeper research and understanding of crvaw is therefore critical to advancing gender-inclusive settlements. how crvaw is researched and documented therefore matters. within the realm of mechanisms that make up political settlements, justice and accountability mechanisms have now become ‘the most productive, recent sites’ (buss, 2009, 146) for the documentation of women’s experiences of conflict. in particular, the reports of truth commissions have become a key determinant of what becomes known about crvaw in a given conflict. while these processes may produce an abundance of descriptive detail, there is growing acknowledgment of the inherent silences within them, not only in the absence of women’s voices, but also in the focus on reductive typologies of violence (ross, 2003; rooney, 2006). given that the documentation process will determine the analysis that shapes what we come to know and understand about crvaw, which in turn shapes the political settlement, how crvaw is engaged with during post-conflict transitions requires more scrutiny. while the truth commission in timor-leste is a positive example in adopting a gendered approach, it is examined in this paper in respect of the complexity of crvaw that the paper identifies, with key learning and shortfalls identified. [4: see: http://www.politicalsettlements.org. for more on gender research from the prsp see o’rourke (2019). ] it is this paper’s contention that neither vaw in conflict, nor in peacetime, can be understood without reference to the other. further, the paper works on the assumption that an inclusive political settlement cannot be achieved without fully addressing the complexity of the violence that women experience. while ‘conflict’ is the pivotal point around which the examination of vaw is framed, the paper explores the relationship between the violence of the everyday and that which is termed the political violence of conflict, i.e. the organised use of violence by armed groups to achieve political objectives. the paper contributes to continuing feminist work of expanding understanding of crvaw. it does so by presenting a new framework for researching the relationship between conflict and peacetime vaw. it uses a case study of timor-leste to demonstrate the utility of the research framework and to evidence the complexity of crvaw and why truth processes require more attention to that complexity. the paper begins by engaging with prevailing critical debate to identify the productive tensions in approaches to understanding the irregular nature of crsv. the paper next introduces a ‘pre-, duringand post-conflict framework’ as a new way to document, analyse, and produce qualitative, evidence-based analysis of the complexity of the inter-relationship between conflict and non-conflict gendered harms. through the case-study analysis, the paper identifies that a more fulsome way to understand crvaw is to identify the connections as well as distinctions in vaw across time and space. the paper discusses those findings in relation to the truth commission in timor-leste to illustrate the prevailing gaps even where efforts are made at designing gender inclusive processes. exceptions and continuums: productive tensions in the in-between in the endeavour to uncover women’s experiences of the violence of warfare, feminist scholarship has argued that the sexualised violence that is so publicly evident and now legally and politically acknowledged during warfare, cannot be understood as distant from the violence women experience in their own homes and communities (copelon, 2000; nordstrom, 1997). the concept of a ‘gendered continuum of violence’ and a ‘continuum of sexual violence’ has made visible the constancy of violence in women’s lives from public to private, and from non-conflict to conflict settings (cockburn, 2004; moser, 2001; kelly, 1998; kelly and radford, 1996). this understanding of vaw is deepened by scholarship demonstrating the relevance of ‘interactional contexts’ to how vaw takes place in different ways across differing situations (dobash and dobash, 1998; dobash and dobash, 1983). the targeting of women for sexualised violence during conflicts was identified by feminists as materially and theoretically grounded in structural gendered inequalities existing across societies (card, 1996; copelon, 1992). the overarching structural condition in which women experience violence was identified as ‘giv[ing] a man power over her – even before he perpetrates direct violence against her’ (cockburn, 2001,16) and providing the scaffolding for ever-present harms in their lives. these bodies of work advanced understanding that broad forms of physical, emotional, economic and psychological crvaw are a multi-causal and context-responsive phenomenon embedded in the inequalities that frame women’s lives (moser, 2001). since this body of thinking initially emerged, scholarship and policy have pivoted towards a focus on specific forms of crsv, most prominently strategic rape. while this move lends a plurality of theoretical inquiry and political response to the issue, the ‘hypervisibility’ (buss, 2009, 153) of crsv as a ‘securitised’ concern has become predominant (meger, 2016, 149). these developments have propagated the idea that crsv only appears as strategic rape and that women only experience war in this way (mertens and pardy, 2017; eriksson baaz and stern, 2013). with this has come an ‘unwarranted confidence’ and an assumption that this is all there is to be known about this issue (mertens and pardy, 2017, 957). strategic rape by armed groups is unquestionably significant and may be prominent in many women’s experiences of conflict, and there is arguably a need to regulate wartime actors and their actions through legally accountable means. the elevation of the issue to exceptional status however and the resulting draw of political actors to strategic rape alone, discounts the possibility that other forms of vaw may be present in a conflict, or could be related to harms occurring outside of that conflict. recent scholarship has found that vaw occurs in variant ways directly and indirectly related to a conflict for political as well as private ends, and by a range of armed and non-armed actors (swaine, 2015a; gray, 2019; usta et al., 2008). there is growing evidence that not only is private-space vaw highly prevalent during conflicts, but that these forms of harm might exceed those purported to be ‘strategic’ (cpc, 2009; erikson and rastog, 2015). intimate partner violence (ipv) has been found to be more prevalent in south sudan, the drc and côte d’ivoire than crsv by combatants for example (peterman et al., 2011; harvard humanitarian initiative, 2010; murphy et al., 2017; hossain et al., 2014). research is pointing to the need for ‘increased recognition of intimate partners and caregivers as perpetrators of violence in conflict–affected settings’ (stark et al., 2017, 203). the ‘extraction of everyday forms’ of vaw has, however, expelled the relevance of gender or broader social factors as causal to conflict violence (gray, 2019, 190). the idea of gendered continuums of violence or the potential for co-occurring forms of vaw within one conflict is absent from global approaches to addressing crsv (gray, 2019; kirby and shepherd, 2016), while forms of violence such as ipv have disappeared altogether (gray, 2019). the ‘ordinary lives of the bodies in war who are involved in an intimate relationship with the “everyday” ’ (parashar, 2013, 619) are disappeared, as are the connections between forms of violence that they encounter (kelly and radford, 1996). reductive and universalising categorisations of vaw have implications. they influence what forms of violence receive attention and what forms of violence may be legitimately claimed as a harm and are eligible for accountability post-conflict. this holds particular relevance for whether post-conflict justice processes contribute, or not, to making known the full experience of crvaw. problematically, political settlement mechanisms have operated on the assumption that a preceding armed conflict and its transition are gender neutral phenomena (puechguirbal, 2012; strickland and duvvury, 2003). as a result, they miss new realities of violence and the presence of multiple forms of violence in one armed conflict, over-emphasise the centrality of statist paradigms of violence and lack recognition of the multi-causal and multi-purpose violence taking place in conflicts, including criminal and private violence directed at women (bell, 2015b; swaine, 2018). a gender-inclusive political settlement not only recognises the gendered nature of conflict and political transitions, it also responds to the multifarious ways vaw has featured previous to, as well as during the events of a conflict and recognises that these violences are an outcome of historic and ongoing gender injustices in women’s lives that are ‘intimately connected to gender norms that exclude and devalue women’s participation in public life’ (o’rourke, 2019; doyle and mcwilliams, 2019). addressing crvaw becomes about not only addressing the fact of the harm and its impact, but also about identifying and upending the conditions that allow those harms and that directly and indirectly inhibit women’s full freedoms. deconstructing the false dichotomies between conflict and non-conflict vaw, so that the pretext to and tolerance for vaw across any context are disabled becomes an imperative for feminist scholarship. methods of gender analysis are critically important to this work (o’rourke, 2017). how (and whether) gender analysis is done and how it is used matter as its employment will influence whether and how the conditions beyond the act of harm itself are made visible and thereby available to procuring a gendered political settlement. in a context such as timor-leste, where women experienced a variant range of vaw directly and indirectly linked to the conflict, the documentation process, based on and producing a sound gender analysis, should present a fulsome picture of the range, nature and characteristics of that violence across the whole of the timorese conflict and non-conflict context. where the documentation processes employed by truth mechanisms set the context for onward peacebuilding dispensations, this is a pressing need. it would ensure that a comprehensive understanding of gendered harms informs how the interests of women are addressed through the political settlement process and its outcomes. in sum, the multi-faceted complexity of the issue of crvaw has become polarised between distinct legal and political parameters – it is either a specific arsenal of armed political violence, or something not quite as delimited, and thereby normalised and not ‘conflict-related’. there are thus prevailing gaps in both research and accountability. there is potential to address those gaps in the space between the tensions that arise between the two bodies of thinking and to move us towards more creative approaches to understanding crvaw. it rests in the critiques of each. while continuums theory offers a comprehensive way to understand the wholesale nature of violence in women’s lives, it also has the capacity to flatten or equalise acts of vaw (urban walker, 2009). in that vein, it reduces space for the ‘discontinuity’ in the ways that crsv may take place and thereby does not provide enough visibility for the egregious ways that political outcomes may prompt differing forms of vaw (urban walker, 2009; o’rourke, 2013), or indeed some of the innovations in violence (wood, 2014). in effect, only ‘understanding sexual violence along a continuum does not say anything about the gravity of the violence or even how it might be experienced’ (boesten, 2017, 513). is there space and need for recognition of an exceptionalism attributed to some forms of vaw? theory focused on crsv identifies that there are practices and patterns to how militarised actors use sexual violence, a critical insight in any attempt to understand crvaw (wood, 2014; cohen and nordås, 2014). while the theory and policy addressing what has become ‘exceptionalised’ crsv acknowledges that women are targeted because they are women, it ‘fails to address what makes such violence possible’ (boesten, 2017, 2) or effective, namely the structural condition to that violence. in all, it may be argued that the ‘persistence in the continuum of sexual violence against women that supersedes the categories of war and peace’ (boesten, 2017, 2) requires recognition, and at the same time, so too do the ways that during a conflict, new forms of violence may be introduced or experienced as ‘new’ by women and feel different from the normative violence in their lives. creating space for interactions between pluralist theoretical approaches to the issue of vaw may make visible and enable a more fulsome understanding of the complexities underpinning crvaw, including how different women may experience different forms of violence within the one setting of conflict. a gender analysis approach that considers what went before (the gendered subjugation of women through endemic gendered violence) and a contextual approach that acknowledges that violence responds to conditional factors (including the introduction of armed conflict) provides a means to assess how vaw before and outside of conflict may be linked to what happens during conflict, and further, whether and how some forms of vaw may be distinctive to the conflict period. a framework for analysing pre-, during and post-conflict violence against women in the interests of building on the productive interactions between the concepts of exceptionalisms and continuums in crvaw, a ‘pre-, during and post-conflict framework’ is proposed here as a means to develop a more comprehensive theoretical and empirical analysis of the inter-relationship between conflict and peacetime vaw. the framework facilitates collation of all empirical evidence of vaw in a given context and can be used to advance a two-fold analysis. first, evidence of vaw is compiled and organised within each phase of pre-, during and post-conflict on a disaggregated basis. second, that disaggregated evidence is used to advance an aggregated qualitative analysis of vaw across each phase and across time. the initial disaggregated approach allows for an in-depth, drill-down examination of prevalence and forms of vaw in each distinct phase along the (so-called) peace to conflict to peace continuum. it ensures that any analysis of vaw across the conflict to peace phases is based on exhaustive documentation for each distinctive phase. the aggregated analysis ensures that understanding of the relationship between conflict and peacetime vaw is not just focused on the violent act itself. rather, the structural conditions that underpin pluralities of harm are made relevant to advancing analysis beyond the siloed documentation of harms implied by the framework and to ensure analysis is not confined to restrictive legal or policy definitions of violations. by drawing lines and taking a disaggregated approach the framework enables examination of the distinctive characteristics of violence in each phase; while at the same time, those lines are erased through a complementary aggregated assessment that identifies patterns and connections across the phases. in proposing this framework, it is acknowledged that demarcating conflict and non-conflict imposes artificial and arbitrary boundaries on temporal phases that do not necessarily have clear stop-and-start moments and that conflict dynamics are fluid and often sporadic in coverage and outbreak (zarkov and cockburn, 2002). such an approach of course risks reinforcing the dichotomies of vaw that have just been critiqued, countering private sphere vaw as political and the peace context as a space of political struggle for women. challenging such boundaries has been the essence of feminist theorising which has pointed to the prevention of violence in women’s lives as reliant on eradiating such boundaries (boesten, 2017). taken in its strictest sense, the limitations of this framework are evident: a pre-, during-, and post-conflict composition will not provide a true picture of the conflict–violence nexus, nor the gender-conflict nexus. by no means perfect or the solution to theoretical or evidentiary gaps, this approach does however enable the identification of commonalities and contrasts in vaw across the three temporal phases for a given context. a dual disaggregated and aggregated approach will go some way to counter the invisibility of social context to the perpetration of physical harms and the meanings ascribed to them. the pre-, during-, and post-conflict framework is presented here as a means to develop a descriptive, experiential and analytical picture of vaw for a given context from which differing bodies of theory and policy can draw. application of the framework: ambulant violence against women in timor-leste here, the framework is applied to a case study of timor-leste. the collation of data on crvaw within this framework is centred around the indonesian occupation of timor-leste from 1975-1999, inclusive of the period of timorese inter-party contestation in 1974/75. from the outset, the indonesian regime employed aggressive tactics to quash the timorese resistance including wide-scale aerial bombardment, ground attacks on villages, mass violence and killing, detention, engagement of timorese auxiliaries/militia and the stationing of troops in barracks across the country in efforts to quell the armed and diplomatic/clandestine timorese resistance. overall, it is estimated that between 102,800 and 183,000 people died during the 1974–99 period (cavr, 2006a). the disaggregated assessment of vaw in timor-leste is first mapped across each temporal phase. this is followed by an aggregated analytical discussion of the trends revealed by the disaggregated mapping. disaggregated analysis: violence against women across pre-, duringand post-conflict timor-leste the data here is drawn from a combination of resources in english and tetum. this includes archival and secondary sources such as testimonies and reports of the commission for reception, truth and reconciliation (cavr) established in the transition period in timor-leste, academic studies, reports of ngos and primary data gathered by the author from qualitative interviews with service providers and through extended periods of working on vaw in timor-leste. the data cited here represent a summary of available evidence for the purposes of this article only and are not meant to be exhaustive or wholly representative of all data on vaw for this setting. pre-conflict the presence and pervasiveness of violence and discrimination in the lives of women before the indonesian period (1975-1999) is substantiated and confirmed through a compilation of available evidence. before outlining that evidence, it is important to note the limitations to the data. like many settings globally, studies on vaw prior to the contemporary era are not immediately available for timor-leste. by the end of the conflict (1999), available data was limited to conflict actors (robertson, 2005). not only will investment or attention to issues like women’s rights be inhibited during conflicts (mcwilliams and ní aioláin, 2013), moves by the united nations to standardise states’ data collection on vaw are very recent (united nations, 2014). further, domestic political and legal responses to vaw in timor-leste were established after the indonesian period and therefore any materials prior to this will be influenced by what was categorised and ‘known’ as vaw in that time. in addition, it is important to acknowledge that using internationalised definitions of vaw erases how women themselves might articulate the harms in their lives (charlesworth and chinkin, 1993; charlesworth and chinkin, 2000). it removes from analysis the reality ‘that location, and the particular, matter centrally’ to how violence is understood for any context (epstein, 2014, 295). significant to assessing data is how historical colonial presences and the mixing of external and existing patriarchies through such presences will influence how vaw has taken place and how it was and is understood, and this should inform the mapping of violence made in the proposed framework here. while there is limited data on patterns of vaw during portuguese colonisation (1500s to 1975) (at least that are accessible in english), women have spoken of fear and the need for protection in respect of portuguese military bases across the country. ‘prostitution’ and ‘relationships’ between portuguese men and timorese women were understood as exploitative due to differentials in cultural mores, socio-economic, ethno-national and political statuses. women were left with little support for children born of either abuses or consensual relationships with portuguese men (interviews; fernandes alves et al., 2009; thatcher, 1988). there is some evidence of the trafficking of women from other portuguese colonies to brothels in dili (alola foundation, 2004). research elsewhere demonstrates that collusion between elite colonial and indigenous males may eradicate any standing women may have originally held in pre-colonial societies (niner, 2011 citing pettman, 1995; behrendt, 2000). in the timor-leste case, the portuguese are estimated to have done little to advance the status of women, solidifying their role in the home (franks, 1996) and the attendant arrival of the catholic church brought further conservatism in respect of confirming women’s role in domesticity and child rearing. the portuguese have also been accused of handing timorese women over to japanese forces that occupied timor-leste during world war ii (february 1942 september 1945) in order to protect european women from their abuses (jolliffe, 2001 ). sexualised violence was an organised feature of the japanese occupation (chinkin, 2001). it is estimated that 700 timorese women and girls were held by the japanese for the purposes of forced labour during the day and violent rape at night. women have stated that their sexualised violation was understood as a mode of protection for their families and community from the japanese forces (assosiasaun hak, 2010; alola foundation, 2004). outside of colonial and militarised actors, the most common forms of vaw documented during this time were by men known to women and occurred in their homes and communities. ipv, including physical, sexual, and psychological abuse, as well as economic deprivation, was normalised within marital relationships through its characterisation as the natural clash between the fork and spoon on the plate in the daily meal (unfpa, 2001). important to document here is the pre-conflict status of women and its relevance to gendered violence: there is an underlying set of systemic inequalities which position women as legally, economically and politically inferior in respect of men’s legal and socio-culturally ascribed entitlements and have direct bearing on this violence. animist belief systems (‘lulik’) structure hierarchies between men and women, confirmed by the adage ‘feto hakat klot; mane hakat luan (a woman is born for narrow steps while a man is born for wide steps)’ (niner, 2011, 417; ospina and hohe, 2001). women experienced discrimination in the spheres of public employment, property ownership and girls were disfavoured in preference for boys attaining education (unesco, 2004). the practice of ‘barlaque’ which varies in form across ethno-linguistic groups, re-termed as a ‘bride-price’ in the contemporary era, is an important basis for the exchange of fertility and harmony between families through marriage. for some women in timor-leste, barlaque is understood as situating women as chattel in exchanges of fertility between men. for others, the practice symbolises the value of women within the broader and much valued kinship system. women’s child bearing directly influences her level of social power and standing in families and communities. activists in timor-leste often blame barlaque for the abuse that women experienced (and continue to experience) in timor-leste (alldén, 2007; unesco, 2004; robertson, 2005; fokupers, 2001; niner, 2012). violence within the home was considered a disruption to the harmony that a marital agreement brings about between two families and was resolved through customary justice forums, which more often than not attributed blame for the violence to women for failing to comply with behavioural expectations (unfpa, 2001; swaine, 2003). ‘traditional’ practices known as ‘soft-pillow’ gifted young girls to visiting dignitaries for overnight stays in the community (fernandes alves et al., 2009). evident here is the inferior positioning of women in respect of men’s sexual entitlements and power, and the resulting presence of variant forms of vaw pre-conflict. this is the pre-conflict status of women and prevalence of vaw upon which armed conflict violence erupts. during conflict data on during-conflict violence is still emerging as time and distance from those events offer more space for women to articulate the harms that they experienced. a wide array of academic studies document crvaw, as do reports of ngos and the un, while the report of the cavr is a critical resource and is heavily cited here. the majority of sources focus on the actions of the indonesian regime and its proxies, mainly for the purposes of legal accountability and political advocacy. it is important to note however that in the period leading up to the indonesian occupation (1975-1999), conflict between timorese political parties involved the sexual assault of women. violence by members of the udt, apodeti and fretilin/falintil political parties included cross-party vaw (cavr, 2006c). vaw by falintil members during the indonesian period has also been documented, including against women who were suspected of being indonesian spies (cavr, 2006c, 8). the cavr collected 853 reports of crsv and estimated that its prevalence constituted the ‘systematic’ use of sexualised vaw by the indonesian regime (cavr, 2006c). it found that ‘there was a widely accepted practice for members of the security forces to rape and sexually torture women while on official duty, in military installations and other official buildings. these practices were covered by almost total impunity’ (cavr, 2006c, 3). pro-indonesia militia also used these tactics to harass, intimidate and punish civilians (unifem, 2005). rape by indonesian forces was the most commonly reported incident at 46.1 percent of the total reports, followed by sexual harassment and other acts of sexualised violence at 27.1 percent, and sexual slavery at 26.8 percent. a 2002 study (two years after the indonesian exit) found that 1 in every 4 women had experienced violence by a perpetrator outside their family during the crisis in 1999 (92 percent involved a weapon, 95.8 percent involved sexual harassment) (hynes et al., 2004). galuh wandita et al. have identified three broad categories of women targeted for abuses by indonesian forces: women who were active members of the resistance; women married or related to men in the resistance; and women with no connection to the resistance but who were victimised through large scale offensive operations (wandita et al., 2006). a further category of women who were assaulted on an opportunistic basis by members of the indonesian military and their proxy militia groups is also identifiable, all of which are now outlined. women mobilised in the clandestine and armed wings of the timorese resistance and were directly targeted by indonesian forces. ‘every night one [opmt member[footnoteref:5]] would be taken by the troops and raped, sometimes as many as three rapes a night. we children had to watch this’ (aditjondro, 1997). rape and sexual violence also featured heavily as part of torture techniques used on women who were detained, including forced sex between timorese detainees (aditjondro, 1997), stripping, electrocution of genitals and breasts, burning of skin, beatings, and other forms of physical torture, verbal abuse and threats and water submersion. it is estimated that almost 10 percent of timorese women detained by the indonesian military were raped (cavr, 2006c; stanley, 2009). [5: organização popular mulher timorense (popular organisation of timorese women or opmt) ] women related to members of the resistance were targeted for sexualised violence by the indonesian military as retribution and to force falintil members out of hiding (unifem, 2005). women were summoned to military barracks to provide sexual entertainment to soldiers on an ongoing basis. others were forced to ‘marry’ indonesian soldiers who either came to women’s homes on a daily basis to rape them and/or lived in the home. in some cases soldiers passed these women on to incoming soldiers during military rotations (cavr, 2006c). similar to the japanese occupation, it was understood that if a woman did not accept an indonesian ‘husband,’ she was putting her family and community in danger, and risking the cover needed by nearby falintil forces. centres for sexualised violence and slavery were established in some hotels (cavr, 2006c). the indonesian military forced women into their military operations to assist in rooting out the falinitil and/or they were targeted for assault during military offensives (cavr, 2006c). gang rape was common during armed attacks on communities and falintil outposts in early stages. many women died as a consequence of the violence and viciousness of the sexualised abuses (cavr, 2006c). in one offensive, the indonesian military gathered all of the women of the hamlet, and forced them to do agricultural labour naked, again similar to the tactics used by the japanese occupiers (taylor, 1999). sexualised violence was used at an increased rate in the lead up to the popular consultation (cavr, 2006c; unifem, 2005; coomaraswamy, 1999; human rights watch, 1999; wandita et al., 2015). opportunistic sexualised assault also featured as a result of the conflict. some women were randomly subject to violence by soldiers and militia for their own entertainment (aditjondro, 1997). militia ‘drank and were drunk and went out into the streets’ and frequently sexually assaulted women (interviews). many women took extreme measures to avoid being ‘selected,’ including looking dirty and dressing down (franks, 1996; aditjondro, 1997). women’s reproductive capacities were also specifically targeted as well as generally affected by the indonesian regime. its ‘family planning programme’ involved the coerced, forced and covert sterilisation of some women and girls (cavr, 2005; sissons, 1997). women were given injected birth control as part of forced vaccination campaigns without information and consent (taylor, 1999), girls were targeted in schools for obligatory ‘vaccinations’ which sterilised them, while others were involuntarily sterilised during periods of hospital stay for completely unrelated illnesses (cavr, 2005). these strategies moved control of women’s bodies and reproduction from timorese practices into the hands of the occupying forces (franks, 1996) and was used to stem the number of timorese births. it often resulted in complications during pregnancy, such as defects and there is evidence of unsafe abortions and of women giving birth while in detention (cavr, 2005; rimmer, 2007). in addition, there were incidents of women who had foetuses removed as part of assaults and murder (unifem, 2005). many women had children and experienced forced maternity as a result of systematic and opportunistic rape. in some instances, those children were taken away from women, and on a wider scale, the cavr estimates that 4000 children were taken from their families and sent to indonesia between 1975 to 1999, some of whom experienced further abuses (wandita et al., 2015). many had children in the context of forced ‘relationships’ which they remained in with the perpetrator for years at a time, becoming economically dependent on the perpetrators of violence due to ostracisation from wider family and community (cavr, 2006c). the majority of officers returned to indonesia, leaving women without support for these children and to face severe social stigma from their communities. some women were forced to abandon children as a result (coomaraswamy, 1999), and others had their children taken from them, while children remaining with their mothers faced challenges of associated stigma (faludi et al., 2017). there is evidence that throughout the conflict, women continued to endure violence in their familial and community spaces from family and community members. research during this time found that ‘a wife would be dealt with severely if she did not carry out her domestic chores satisfactorily’ (thatcher, 1988, 76). women were expected to be virgins on marriage and to fulfil reproductive roles; any infertility issues were blamed on women, allowing a man to re-marry to procure children with another wife (thatcher, 1988). marital practices favoured men as the central and only actors who could initiate and end a marriage. there is some evidence of broader gendered harms including sexualised assault outside the home for which women and girls were blamed as they were expected to avoid making themselves vulnerable to such harms (thatcher, 1988). prostitution and trafficking were also documented during this period associated with the presence of the indonesian military. gender inequalities and discrimination impacting women’s social, economic and political status were largely sustained during this period, with the exigencies of the conflict placing women at even greater risk of violence. in sum, it is evident that, during the conflict, various forms of multipurpose violence existed within and outside women’s homes. sources of violence expanded to include not just spouses, family and community members, but also the new military actors who enacted violence for both political/militarised, as well as personalised ends, which the majority of the documentation of that time has focused on. post-conflict the source of strategic political violence described in the previous section, the indonesian regime, left timor-leste at the end of the conflict. no longer present, those actors no longer posed a physical threat. the presence of the ex-militia and ex-resistance fighters (falintil) continued however, with some associated violence, as well as ongoing endemic forms of vaw. violence in the immediate and longer-term aftermath requires further disaggregation to be made visible. in the immediate aftermath of the exit of the indonesian regime in 1999, two major sources of harm are identifiable. women who fled to west timor and were residing there as refugees in camps ‘were sexually abused, sexually violated . . . the places they slept were not secure, and the washing facilities were also not secure’ (interviews; cavr, 2006c). women were also held as sexual slaves and as ‘war trophies’ by soldiers and militia in those camps (agence france-presse, 2000; farsetta, 2001). in timor, ex-falintil fighters were reported to have returned home expecting women to be in the same roles they had left 25 years previously, with ipv cited as a means of reasserting their roles in their homes (o'kane, 2001; charlesworth and wood, 2001). in 2000, four women were hacked to death with machetes by male family members and several women were attacked for wearing what were perceived to be unacceptable westernised clothing in public spaces (o'kane, 2001). further, women were forced to live in proximity to ex-militia who had enacted abuses on them, some returning to villages some years after the indonesian withdrawal (burgess, 2004). in the longer-term aftermath, vaw in familial and community spaces emerged as the most urgent issue for women. the cavr report observed that victims/survivors of conflict-time vaw were now experiencing ipv in their homes and noted that (some) male survivors of detention and torture admitted they had ‘fallen into a pattern of violent behavior’ (cavr, 2006c, 12). the un reported in 2002 that ipv represented approximately 45-50 percent of all reports to agencies, the highest percentage of all crimes (unifem, 2005). a study in 2002 found that 51 percent of women surveyed had felt unsafe in their relationship with their husband in the last 12 months. the most common forms of violence reported were physical abuse, such as being hit, kicked, punched, slapped, twisting of arm or hair pulled (21 percent) and psychological abuse such as threats to children or the woman’s possessions, the husband stopping the wife from making her own decisions or degrading her, and 4 percent had had their lives threatened by their husband (hynes et al., 2004). a 2010 demographic and health survey (dhs) found that 36 percent of married women had experienced ipv, and 3 percent had experienced sexual violence (national statistics directorate timor-leste, 2010). a 2016 study by the asia foundation found that 59 percent of ever-partnered women between the ages of 15 and 49 had experienced physical and/or sexual violence in relationships, while 47 percent had experienced one of these forms of violence by a partner in the previous 12 months (asia foundation, 2016). for many women, ‘abandonment’, whereby a husband or partner leaves them without support for children, is experienced as a violation and is among the highest types of cases that the ministry for social services in timor-leste deals with (swaine, 2015b). sexual abuse of minors has been increasingly reported in the post-conflict context (ospina, 2006). research on vaw has also identified sexual abuse of women and children by family members, as well as those in positions of social and economic power within the community, including members of the church, police officers, teachers and ngos (hayati, 2012). in addition, mobility has been limited for many women and like the preand during conflict phases, some have to ask permission to travel distances beyond the domestic and community locale (grenfell et al., 2015). for many women, social freedoms, mobility and interactions with family and friends are controlled by their husbands (national statistics directorate timor-leste, 2010). women and girls have expressed concern for personal safety outside the home, feeling unsafe to go out at night due to risks of sexual harassment from male community members (grenfell et al., 2008). the killing of women for ‘witchcraft’ has also become visible in some communities (strating and edmondson, 2015). the arrival of new actors, including the staff of international organisations working in timor-leste, introduced new forms of violence to the post-conflict context. sexually exploitative relationships and sexualised abuse, including incidents of rape and child abuse rings by un peacekeepers, have characterised post-conflict timor-leste (robertson, 2005; murdoch, 2006; koyama and myrttinen, 2007). the phrase ‘un babies’ emerged in response to the numbers of children ‘abandoned’ by departed peacekeepers (ospina, 2006; swaine, 2010). trafficking also became evident in timor-leste after the indonesian period, with its large population of well-paid international staff making it a destination country once again. similar to the refugee camps, women displaced within timor-leste during its 2006 crisis experienced sexual harassment linked to shared toileting facilities (interviews). while there are changes to formal legal equality provisions for women in the post-conflict phase, the presence of ongoing gender harms is but one indicator of the lack of substantive equality. ‘despite the raft of progressive gender policies adopted in timor-leste since independence, the lives of most timorese women remain dominated by the expectations of marriage and traditional attitudes underlying a resilient gender order restricting women to the private sphere and a domestic role’ (o’keefe, 2017, 64). while ‘traditional’ roles for women are sustained across time and re-asserted post-conflict, these must be understood with respect to preceding influences such as colonialism, the catholic church and differing armed forces (niner, 2011). in the post-conflict context a quarter of girls are married by age 18, 14 percent of girls give birth by age 18, and half by 22 years of age (pappa et al., 2013). practices of customary justice remain the primary site of help-seeking for women looking to resolve ipv and these practices remain predicated on blaming women for drawing violence onto themselves (swaine, 2003; kovar and harrington, 2013). academic studies demonstrate that belief systems continue to ‘reinforce male dominance and female subjugation within the family’ (o’keefe, 2017, 64) and that these systems, present before conflict, have not dissipated during or following the conflict (grenfell et al., 2015). vaw related to the conflict (by ex-armed actors and newly arrived peacekeeping actors), as well enduring violence in familial and community spaces, continues. aggregated analysis: identifying connections and distinctions in vaw in timor-leste the parsing out of data across the tri-partite temporal framework demonstrates that there is a constancy of violence in women’s lives and it appears in different ways across time and space. vaw predominantly by known men is ever-present across the phases (e.g. ipv and sexual abuse in the family) with some changes in response to the presence, absence or return of those men; vaw linked to political and militarised occupations (e.g. sexualised violence with both militarised and personalised aims) erupts and recedes with the arrival and exit of known and not-known men but is nonetheless present in each phase (e.g. portuguese, japanese, indonesian, timorese militia). even where strategic sexualised violence is taking place, women are still experiencing ipv and practices that curtail their freedoms that inform and occur alongside that violence. there are concurrent forms of vaw taking place by different actors and in different spaces. the ‘volume’ of the violence must be acknowledged in this assessment, as must the consistent presence of gendered structural norms that disadvantage women socio-culturally, politically, economically and otherwise. the pre-, during-, and post-conflict framework reveals that the prevalence, form, sites and sources of vaw and its motivations fluctuate in different ways and to different degrees in response to contextual factors, particularly the introduction of new actors (or absence of some actors). this mutation and fluctuation in violence means that women are experiencing harms across all phases that are normative (e.g. ipv), while also experiencing forms of violence that are ‘new’ or non-normative, enacted by new actors and thereby not normative to their roles and positioning in timorese societies (e.g. sexual slavery by military actors). these patterns of violence prompt a number of critical observations in relation to the political and conceptual boundaries that are imposed between conflict and peacetime vaw. first, the disaggregated data evidences that there are connections in vaw across pre-, duringand post-conflict contexts. connections, materially, empirically, practically, are evident in the continuities of specific forms of violence, such as ipv, which is evident across all temporal phases, and in sexualised violence, which consistently features in the violence directed at women, whether performed by known or unknown/militarised actors and in familial or state institutions (see also kelly, 1998). connections, conceptually, structurally, practically, arising from a social order that positions women as inferior in economic, political and socio-cultural terms across time and space, are also evident. these identifiable connections in vaw are broadly embedded in pre-conflict and enduring gender norms that generate specific vulnerabilities to violence for women, whether by men known to them or by unknown/militarised actors. as found in continuums theory, gender is a ‘link’ between forms of vaw (cockburn, 2004). critically these gendered norms inculcate a social tolerance of certain forms and levels of gendered harm. as a result, women will expect and accept certain levels of violence as normative and some men’s control of them as ‘protective’ (urban walker, 2009), a critical dynamic when it comes to understanding what kinds of violence may be considered as ‘exceptional’ and what violence may be considered ‘ordinary’ to women and their societies. the gendered normativity to continuities in vaw is evidenced in timor-leste in women’s own beliefs that the domestic sphere is not a place of secondary power, rather ‘it is a woman’s role and right to be tied to the private domain’, that women are men’s property upon marriage and must be ‘submissive’ to them and their families, and that men’s gendered power is automatically attributed to them while women’s must be proven through child bearing (thatcher, 1988, 73, 156-7). further, the normativity of vaw is demonstrated in women’s acceptance of some forms of violence. research has found that 86 percent of timorese women believe that a husband is justified in beating his wife where she neglects child care or household duties; 47 per cent believe that men cannot control their sexual behaviour (national statistics directorate timor-leste, 2010), noted elsewhere as ‘a proxy for justifying sexual violence’; while many believe that a husband has the right to require sex from his wife (grenfell et al., 2015, 31). second, the disaggregated data evidences that there are distinctions in violence across and within the temporal phases. distinctions can be identified between normative violence that is expected (as above) and violence that is not normative and outside of expected practices. in this context (which may differ elsewhere), what becomes distinctive is violence that is enacted by external or unexpected actors, extends beyond acceptable/expected thresholds and/or which may be linked to political/militarised motivations, such as mass rape during military operations, or forced sexual access to women outside of normative and permitted regulation. distinctive manifestations of vaw are simultaneously enabled and limited by formal (e.g. law) and informal (e.g. socio-cultural norms) practices (ayers counts et al., 1992). as noted before, pre-conflict gendered oppression and violence were delimited by a modicum of ‘respect’ and ‘protection’ for women determined by modes of normative restraint. while some of that violence is performed with political, social and sometimes legal sanction, it is however ‘the backdrop against which sexual violence in conflict must be understood’ (jefferson, 2004, 3). where violence becomes ‘disengaged from the larger structure of social norms that limit and channel gender domination within normative boundaries’ (urban walker, 2009, 31), unsanctioned violence by unsanctioned actors appears and becomes distinctive in function, form and outcome from prevailing and continuing normative gendered violence. the mass killings, rape in military offensives, sexual enslavement, forced marriages, forced sexualised labour and sexualised torture in detention are all distinct from what had been previously normative. for example, harms such as forced marriage directly contested and disrupted the normative systemic ordering of male ‘gatekeeping’ authority over the negotiated sexual/marital access to women, a practice also normative for women. research has identified that prior to the indonesian period, ‘it was rare for women to be forced into marriage against her will’ (thatcher, 1988, 74). this changed utterly when soldiers forced women into ‘marriage’ and sexual slavery. timorese males could do little but surrender their normative authority over these women to men who took over that authority. more powerful males were now deciding who had access to these women and how, a different dynamic conceptually and practically for timorese men and women. these acts are distinctive because they result from the breaking of social mores about access to women and of course, in terms of violence, many acts go beyond expected normative thresholds. pre-conflict norms that limit violence mutate and shift, operating in new ways, led by actors and resulting in violence that may extend beyond what is normatively expected. third, the disaggregated data evidences that what is distinctive is also still connected to earlier iterations of forms of vaw, and to broader social tolerance of men’s abuse of women. while i have argued above that forms of vaw such as sexual slavery may be distinctive in form and function, it must be acknowledged that at the same time, their distinctiveness does not altogether make that violence detached from the social context in which it occurs and/or practices that are normative to the actors of that violence (for example, imported patriarchies of colonising and militarised actors). there is a gendered normativity omnipresent and inherent to the varying contexts and motivations to and the resulting forms of vaw across time and space, even where some forms may be understood and experienced empirically as ‘distinctive.’ this can be seen in two ways: in the first instance, the previous example of the distinctiveness of forced marriage was outlined. however, notable within that phenomenon is its clear conceptual and practical connection to practices of sexual access to women prior to conflict. familial and community-based regulation of marital/sexual access to women illuminates the tension evident in what are continuums and exceptionalisms in vaw. while discriminatory in respect of western/internationalised ideas of gender equality, men’s regulation of sexual access to women through marriage practices nonetheless upholds women’s standing through marriage and secures women’s positioning within socio-cultural and socio-economic systems in which marriage finds gendered function. research in the sierra leone conflict for example, found that forced marriages, sexual slavery and servitude of women within armed groups mimicked men’s expectation of the roles women held before the conflict, where agreed marriages and free female labour were common (jefferson, 2004). existing (pre-conflict) societal attitudes and practices that generate structural gender inequalities and vaw underpin politically targeted and opportunistic forms of crvaw. the meaning of that violence derives from women’s gendered positioning. forced marriage in this case, for example not only satisfies personal motivations for access to women on the part of armed actors, it also ‘gets at’ the men of that community and upends their normative authority, and in the same way, is a direct communication to absent fighters of their inability to protect women from non-normative violence, earlier iterations of which they themselves might sanction. sexualised abuse of women finds connective meaning across different settings because of hierarchical gender orders in which that violence originally finds relevance. in other words, it is what is normative about vaw in peacetime that provides a basis for mutated and exceptionalised versions of that same normative violence during conflict. similarly, control of women’s reproduction is empirically visible across all temporal phases in the framework through the same practices governing marriage/sexual access to women. however, for some women and arguably for society as a whole, control of women’s reproductive capacities was taken over by external actors (the indonesian regime) in the during-conflict phase, and became a target for violence and abuse by those actors. control of fertility and reproduction reverts back to timorese patriarchal customary practices post-conflict. while the reproductive harms of the indonesian regime are distinctive and egregious in how they take place, they are simultaneously rooted in the normative control of women’s reproduction by male leaders, mirrored by masculinised state political and legal systems that restrict women’s control over their own bodies. in the second instance, it is notable that there are connections in how distinctive forms of crsv appear across all iterations of political contestation in timor-leste. even in the midst and turmoil of colonial domination and militarised occupation, the gendered norms of the sexualised and physically abusive domination and control of women endure across and within each temporal phase and determine women’s experiences of those events. variant forms of sexualised violence are enacted by the indonesian regime, practices of sexual abuse and exploitation appear under portuguese colonisation and by un peacekeepers post-conflict, and sexual slavery and forced and sexualised labour appear during the japanese occupation. while not an historical, inherited or institutional practice within one militarised entity, and while enacted in somewhat different ways and to different degrees by differing sets of political/armed actors, there is a common connective thread of the sexualised abuse of women by all political/ military instalments across time in the timor-leste setting. a further connective thread is related back to the omnipresence of the gendered normative basis to that violence the enduring requirement that women exchange access to and use of their bodies for what is perceived to be political protection for their families and communities. rather than only seeing ‘distinctive’ forms of violence as ‘irregular,’ crvaw can be understood as remaining rooted in the normative sexualised abuse of women by men. drawing these observations together, it is clear that a comprehensive way to understand crvaw is to acknowledge the simultaneous connections and distinctions in violence, with all forms of vaw rooted in the normative gendered subordination of women across time and context. rather than an either/or scenario, wherein conflict-time violence is either similar to what went before, or solely exceptional or distinctive, crvaw may possess characteristics that make it both (i) connected to pre-conflict structural norms and forms of vaw and (ii) distinctive in form, function and empirical experience for those subject to it, while at the same time, arising from and holding meaning because of its original gendered structural basis. gendered violations, such as forced sexual access to women without normative sanction is distinctive not only to individual women subject to assault, but also to society more broadly, giving power to the attribution of stigma to women for perceived transgression of normative sexual practices. the analysis available through this frameworks uniquely demonstrates that some forms of crvaw, while experienced as distinctive, are mutated forms of ordinary violence and oppressive practices existing prior to conflict, now used to personal or political ends by militarised actors. understanding vaw and the norms that regulate it as pliant and responsive to context illuminates its ambulant nature and how it mutates in form and function across context and temporal phase. understanding violence as ambulant captures the changing sites and sources of violence, its responsiveness to contextual factors, including gender norms or the introduction of armed conflict, and also creates space for recognition of where its distinctive manifestation is still grounded in the foregoing oppression of women. implications of the framework and its findings the findings of the disaggregated and aggregated analysis of vaw for timor-leste are briefly considered here in respect of how political settlements could be enhanced through the more rigorous analysis that the framework offers and, most importantly, how such analysis could be used to enhance the gender-inclusivity of post-conflict processes. as discussed earlier, women’s exclusion from formalised institutions, including post-conflict political institutions, ‘is caused and exacerbated by discrimination, harmful stereotypes and gender-based violence’ (šimonović, 2018, 5). where vaw acts as a barrier to women’s participation, there is further cause for the complexity of crvaw to be fully understood as a prerequisite for a fulsome, comprehensive and inclusive political settlement to be achieved. the complexity to crvaw in timor-leste was identified in the relationships between enduring discriminatory normative gendered beliefs and practices and the appearance of variant gendered harms evident within and across each phase of the framework. whether and how post-conflict mechanisms, such as justice processes identify and address those conditional complexities is testament to the degree of gender analysis achieved and further, the degree to which a political settlement could then, potentially, be shaped by a fulsome gendered analysis of vaw. the timor-leste cavr is lightly examined here in this regard. the cavr was arguably successful in facilitating dialogue and advancing reconciliation among the timorese population. it has also been recognised for making great strides in advancing gendered approaches to understanding women’s experiences of that conflict (ictj, 2006). there are evidentiary gaps in that work however that fall short of achieving the kind of comprehensive understanding of crvaw that would illuminate the connections and distinctions in violence that require attention if gender-inclusive settlements are to be advanced. the two major outputs of the cavr were its community reconciliation procedures (crp) and its broad documentation process which produced its reporting/narratives of the conflict, which i briefly discuss here. in the crps, which were community-level ceremonies based on customary practices that facilitated dialogue between ‘perpetrators’ (who volunteered their participation) and ‘victims’ of transgressions (larke, 2009), important efforts were made to overcome the ‘practical, cultural and political barriers to women’s participation’ (cavr, 2006b, 26; wandita et al., 2006). women were allotted a range of roles, including quotas for numbers of commissioners of the hearings and testimony giving roles in the hearings. nonetheless, women appointed as commissioners experienced discrimination from the perceived ‘true’ holders of authority, i.e. male leaders of local justice forums. for example, the male authority figures (‘lian nain’ or local law-holders) overseeing the crps were not entirely comfortable with women’s presence and commented that ‘in the past you would have been in the kitchen cooking (jsmp, 2004, 39). women were largely under-represented among those giving testimony (larke, 2009; jsmp, 2004), and where they did do so, they also experienced discriminations. for example, in a crp hearing in 2003, the husband of a woman who was the ‘victim’ in the hearing spoke on her behalf and repeatedly asked the ‘perpetrator’ why, during the conflict, he had called his wife down to the nearby barracks every evening. the respondent avoided the question, offering excuses and the conversation went back and forth between both men. the woman remained mute. implied in the accusation is the alleged intent behind the demand for her presence at the barracks – sexualised harassment, entertainment and abuse which was a common feature of the conflict as described in the framework. in effect the process became a conversation between two men about authority over sexual access to the woman in question. the cavr’s research and documentation process, while progressive, also fell short of fully addressing the roots of discrimination and violence in women’s lives. through its research process, the cavr made a significant effort to ensure women were represented and when they were not initially coming forward, it adapted its process to increase participation (ictj, 2006). the final report made very clear recommendations that going forward, specific steps should be taken to address ipv and stated that ‘the elimination of violence against women, in both the public and private domains, is essential to break the cycle of violence and fear that characterises the lives of many women and girls’, and identified the need to address discrimination as a contributory factor to that violence (cavr, 2006a, 2585). the findings of this paper underline the need for just such an approach. however, the chapter of the cavr report dealing with women’s experiences of violence in the conflict and the overall focus of its research became ‘sexual violence’ – clearly implying that women’s experiences of the conflict were largely about sexual violence attached to the conflict, and that these were the harms that merit attention by a truth process, extracted from other harms such as ipv. while the cavr process made significant efforts to contribute to a gender-inclusive and responsive political settlement for timor-leste, there is learning still to be done for how women’s inclusion and the need to address the complexity of crvaw can be advanced. there remains the assumption in this and other justice processes elsewhere that ‘women’s inequality is removed once women participate equally in decision-making fora . ..[which] . . ignores the underlying structures and power relations that contribute to the oppression of women’ (charlesworth and chinkin, 2000, 231). as identified in the analytical framework proposed in this paper, according to custom, women may never hold positions of authority or decisionmaking in local law forums. while women were accepted onto the panels of the cavr hearings, ‘true’ holders of the law in these communities understood this as a development imposed from the outside and one which would have to be tolerated. research in 2009, four years after the closure of the cavr, showed that 58 percent of respondents disapproved of the idea of allowing women to speak within local law forums, demonstrating little effect of these measures (everett, 2009). women’s inclusion in the cavr, whether in leadership or participant roles, remained challenged. in its documentation of crvaw, the cavr also failed to engage with the structural basis of gendered harms. the focus on sexualised violence by conflict actors, without attention to its social, gendered and normative context and relationship to pre-conflict norms of both timorese societies and of incoming militarised actors, demonstrated as critical to that violence in the foregoing section, did little to ensure those gender norms and vaw were not a critical barrier to women’s participation in public life. under its mandate to establish the truth regarding ‘less serious’ human rights violations occurring in timor-leste between 1974 and october 1999, there was ample room for the research process to pivot from strategic sexualised violence to include the documentation of multi-purpose, co-occurring broader harms, and their inter-relationship. also, because crimes of a ‘serious’ nature were passed from the cavr to the accompanying criminal hybrid court-led process which failed to fully prosecute those crimes, they largely fell through the accountability gap between these two mechanisms. the message that sends to communities matters, not only in signalling the seriousness of all gendered harms, but in establishing a basis for addressing such harms after conflict. as a result of these dynamics it is estimated that ‘the crp may have played a role in restoring the ‘natural order of things’ in the communities within which it operated’ (larke, 2009, 671). this is the natural or normative order identified previously around which societies situate ‘community-based hierarchies of power’ (larke, 2009, 671). by reinforcing this normative mechanism of timorese societies after the conflict, the crp did little to challenge the restoration of structural power claimed by men, enabling their control of women, through violence or otherwise. conclusion this paper has responded to the over-emphasis on the ‘during conflict’ sexualised violence that has emerged in scholarship and policy over the last three decades. it presented a new framework using empirical analysis to deepen existing scholarship on crvaw. the framework encourages the grounding of analysis of crvaw within its broader contextual positioning, including the book-ends of preand post-conflict dynamics, but also and importantly, the socio-cultural, political and economic contextual factors that contribute to the appearance of differing kinds of vaw within and across different temporal phases. while the concepts of continuums and exceptionalisms in crvaw have contributed substantial and existing bodies of knowledge, the paper’s proposed pre-, during and post-conflict analytical framework affirms the importance and relevance of each body of work. it finds that common across time and space is the sustained presence of gendered harms, and at times of political contestation, harms that may be experienced as distinctive and require understanding in and of themselves, as well as in respect to their enduring relationship to existing and mutating gender norms. the findings underline that sustaining an approach to conflict-time violence out of sync with how women experience violence within political settlement processes means sustaining the structural inequalities that cause that violence, regardless of whether it is during or outside of armed conflict. as was evidenced, even where crvaw has been included in a strong truth process such as that in timor-leste, the same dichotomous trend outlined before is evident, and a clipped version, largely confined to strategic sexualised violence features in documentation outcomes. the proposed framework demonstrates the utility of qualitative assessments and gender analysis of violence and their relevance to ensuring that a fulsome understanding of conflict-violence, and its structural basis, is identified. empirical and ‘thick’ descriptions of violence have potential to be aligned with victim/survivor centred approaches and allowing women’s voices to be heard, to describe their own experiences in their own words, and to catch all of the variation to that violence. it is important that the framework would be adapted for application to different contexts. the dynamics of the conflict may make a difference. a context such as liberia will differ greatly from timor-leste in terms of analytical outcomes. for example, in liberia, because many of the armed actors responsible for the distinctive forms of crvaw are from there, many returned to their communities in the post-conflict period, influencing a differing set of data and outcomes for vaw post-conflict, compared to the timor-leste context where the main protagonists of violence left at the end of the occupation. analysing that kind of conflict will provide different empirical data and analysis on the inter-relationship between vaw within and outside of conflict. further, the analytical framework could be used for comparative analysis between and across differing conflict contexts, producing broader, generalisable and unique findings on patterns and trends in crvaw (see, e.g. swaine, 2018). lest the paper paint a picture of women’s victimhood, the role of women in the resistance and in rebuilding timor-leste is essential in a deeper analysis than the one presented here. while analysis of the advantages of changing gender norms for women has been identified elsewhere, a further advancement of this framework would be to map women’s changing roles, their resistance to reversion to traditional gender roles post-conflict, and to interweave that with the violence documented here so that the inter-dynamic between agency and victimhood are more deeply assessed. by demarcating conflict and non-conflict vaw as different things, scholarship and global policy have failed to address the complex roots and relationships between the harms that women experience across conflict and non-conflict spaces. how crvaw could instead be understood as holding potency because it represents the continuing historic practice of the brutalisation of women’s bodies during warfare over time, as well as being a continuation of the gendered harms that women ordinarily experience outside of and before war, remains a critical gap in current knowledge and how we respond to that violence. global legal and policy approaches focused on strategic rape miss addressing the comprehensive volume of violence in women’s lives and ensuring that processes focused on addressing crvaw do so in ways that tackle its fundamental structural basis linking it all together. much stronger consideration is needed than is currently given to how pre-conflict norms regulating women’s sexual and reproductive autonomy play a role in the manifestation of certain forms of gendered violence during conflict, and how exchanges of power between men will influence the violence that women experience. for political settlements to be shaped towards being more inclusive in process and outcome, gendered analysis of the events of 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(eds.) the postwar moment: militaries, masculinities and international peacekeeping. london: lawrence and wishart ltd. __________________________________________________________________________________ 20 __________________________________________________________________________________ 21 gillian calder special issue review _____________________________________________________________________________________ feminists@law vol 11, no 1 (2022) _____________________________________________________________________________________ review: the “granular and quotidian, dispersed and tentacular”: critical reflections on canadian journal of law and society (2020) 35(2) special issue – on the margins of trans legal change gillian calder[footnoteref:1]* [1: * faculty of law, university of victoria, canada; email gcalder@uvic.ca. thank you to sharon cowan for a close read and suggested revisions in the most collaborative of ways, and to jenny lee for research assistance and her editorial eye. huge thanks to the centre for feminist legal studies writing group for inspiration, connection and the space to write.] introduction: transparency toutefois, en réduisant l’existence trans à cette expérience de harcèlement, de discrimination et de violence et en reliant la transitude à un processus identitaire plutôt que matériel, ce modèle fixe le sujet trans dans sa marginalité et fait obstacle à son émancipation.[footnoteref:2] [2: florence ashley, “l’in/visibilité constitutive du sujet trans : l’exemple du droit québécois” (2020) 35(2) canadian journal of law and society 317-340 at 338 [ashley]. ] by reducing trans existence to such experience of harassment, discrimination and violence and by linking transitude to an identarian process instead of a material one, the model affixes the trans subject to its marginality and raises barriers to its emancipation.[footnoteref:3] [3: florence ashley, “the constitutive in/visibility of the trans legal subject: a case study” (2021) 28(1) ucla women’s l.j. forthcoming at 36 (draft on file with author). see also vivian namaste, sex change, social change: reflections on identity, institutions and imperialism, 2nd ed. (toronto: women’s press, 2011) at 15-41 and dean spade, normal life (brooklyn: south end press, 2011) [spade].] this volume[footnoteref:4] arrives at a moment where issues facing transgender peoples in canada, and in many ways globally, are more visible in the public realm than at other moments in recent history. some of this is positive – shifts in human rights laws[footnoteref:5] and in other formal legal venues,[footnoteref:6] recognitions in popular culture,[footnoteref:7] and increased scholarship[footnoteref:8] – and some of it is breathtakingly difficult – rise in violence[footnoteref:9] and in particular violence experienced by black, indigenous and peoples of colour (bipoc) communities,[footnoteref:10] debates on social media,[footnoteref:11] divides in feminist communities,[footnoteref:12] and regressive policy rollback in the uk and elsewhere.[footnoteref:13] and, as are many others, transgender people are negotiating the impact of a global pandemic with its isolation and its severe economic consequences. [4: the complete volume is available online: https://www.cambridge.org/core/journals/canadian-journal-of-law-and-society-la-revue-canadienne-droit-et-societe/issue/04c432962b4fc19d091f7dc3548d1794.] [5: see for example, an act to amend the canadian human rights act and the criminal code, sc 2017, c. 13 [bill c-16] and affirming sexual orientation and gender identity act, so 2015, c. 18 [bill 77].] [6: in december 2020 the bc provincial and supreme courts gave notice to the profession of a change in forms of address for parties and lawyers in court, asking people to state their name, title and pronouns to be used in the proceedings. see: https://www.provincialcourt.bc.ca/enews/enews-16-12-2020 and https://www.bccourts.ca/supreme_court/practice_and_procedure/practice_directions/civil/pd-59_forms_of_address_for_parties_and_counsel_in_proceedings.pdf.] [7: recent stories in north american pop culture include actor elliot page coming out as trans and non-binary: https://www.instagram.com/p/ciq1qfbhnfg/?utm_source=ig_web_copy_link; the career of laverne cox: https://time.com/magazine/us/135460/june-9th-2014-vol-183-no-22-u-s/; and the high profile transition of caitlyn jenner: https://www.vanityfair.com/hollywood/2015/06/caitlyn-jenner-bruce-cover-annie-leibovitz.] [8: see for example the work of the chair in transgender studies at the university of victoria: https://www.uvic.ca/research/transchair/about/index.php; and recent dedicated volumes in the uk context on trans temporalities: https://www.euppublishing.com/toc/soma/7/1 and on gender decertification: https://journals.kent.ac.uk/index.php/feministsatlaw/issue/view/45.] [9: see for example, erin donaghue, “‘horrific spike’ in fatal violence against transgender community” (july 2020), cbs news: https://www.cbsnews.com/news/transgender-community-fatal-violence-spike/. ] [10: see for example, human rights campaign, “fatal violence against the transgender and gender non-conforming community in 2020” (2020): https://www.hrc.org/resources/violence-against-the-trans-and-gender-non-conforming-community-in-2020.] [11: jackson bird, “harry potter helped me come out as trans, but j.k. rowling disappointed me” (december 2019), the new york times: https://www.nytimes.com/2019/12/21/opinion/jk-rowling-twitter-trans.html. ] [12: see for example, https://www.insidehighered.com/news/2019/07/19/divide-over-scholarly-debate-over-gender-identity-rages on the derogatorily entitled “terf” debates; and similar long-standing debates in canada: https://www.theglobeandmail.com/opinion/article-the-targeting-of-other-women-shows-meghan-murphy-is-no-feminist/. see also this interview with judith butler for a critique of the equation of “terfs” and mainstream feminists: https://www.newstatesman.com/international/2020/09/judith-butler-culture-wars-jk-rowling-and-living-anti-intellectual-times.] [13: for a discussion of non-action as a “missed opportunity” in the uk see simon murphy and libby brooks, “uk government drops gender self-identification plan for trans people” (september 2020), the guardian: https://www.theguardian.com/society/2020/sep/22/uk-government-drops-gender-self-identification-plan-for-trans-people.] canadians, in particular, sit at a unique historical legal moment that for the most part is wrapped in formal equality. in june 2017 bill c-16 added “gender expression” and “gender identity” to the list of prohibited grounds of discrimination in the canadian human rights act, formalizing the parameters of anti-discrimination law at the federal level, and bringing the national legislative regime in line with what had already happened in all the provincial and territorial human rights regimes.[footnoteref:14] hard fought for, this change is the starting point for many of the papers in this volume, a recognition that ensuring protections for canadians facing discrimination for the ways that they self-identify or live their gendered lives, is positive indeed. and, at the same time, the volume also launches off this moment with forward looking critiques of litigating through human rights regimes, demonstrating the limits of rights-based claims,[footnoteref:15] particularly for lives lived at the margins.[footnoteref:16] [14: bill c-16, supra note 4. bill c-16 also amended the criminal code of canada to add provisions dealing with hate propaganda, incitement to genocide and aggravating factors in sentencing. the amendments were necessary to provide explicit protection for transgender and gender-diverse people and to do so in clear language that would articulate in federal law that “transgender and other gender-diverse persons have a right to live free from discrimination, hate propaganda, and hate crime”: https://www.justice.gc.ca/eng/csj-sjc/pl/identity-identite/faq.html. ] [15: see for example, william hébert, “trans rights as risks: on the ambivalent implementation of canada’s groundbreaking trans prison reform” (2020) 35(2) canadian journal of law and society 221-244 [hébert]. see also, sharon cowan “sex/gender equality: taking a break from the legal to transform the social” in d. cowan and d. wincott (eds), exploring the ‘legal’ in socio-legal studies (london: palgrave macmillan, 2016) 115-134.] [16: see samuel singer and ido katri, “foreword” (2020) 35(2) canadian journal of law and society 147-151 [singer and katri]. for an argument on how change and progress are not linear for queer folx, notwithstanding strong policy initiatives, see matson lawrence and yvette taylor, “the uk government lgbt action plan: discourses of progress, enduring stasis, and lgbtqi+ lives ‘getting better’” (2020) 40(4) critical social policy 586-607 at 589. thank you to sharon cowan for this reference. see also spade, supra note 2.] it is a slightly unusual scholarly endeavour – the review of a journal volume. i leap into this review, however, with anticipation and determination. it is a moment to hold up the work of these diverse emerging and prominent scholars, some of it autoethnographic, and to interrogate the themes and tensions that arise in their work. transgender and non-binary communities are facing shifting challenges on many fronts, including from feminist communities, and that was captured at the conference from which this collection springs. having this work in one collection, and with the articles sitting next to each other in conversation, as they are, creates another opportunity, which is to examine their contributions to the broader question of the connections and dissonances between trans legal studies and other areas of critical legal inquiry. for scholars who are looking to do research on any particular legal issue affecting trans and non-binary folk, there are a range of subjects covered here: activism,[footnoteref:17] institutional memory,[footnoteref:18] employment law,[footnoteref:19] prison reform,[footnoteref:20] school board regulation,[footnoteref:21] accommodations at universities and colleges,[footnoteref:22] family law,[footnoteref:23] identity documents,[footnoteref:24] social benefit law,[footnoteref:25] conversion therapies,[footnoteref:26] and end-of-life care,[footnoteref:27] to name but a few. and for scholars interested in thinking carefully about the transgender legal subject, there are some attempts to connect the themes across these contributions[footnoteref:28] as well as focused deep dives into the question.[footnoteref:29] it is a rich resource, a diverse yet euphonious set of voices. but most importantly, it is a volume dedicated to interrogating the power that law holds to exclude in ways that “go far beyond the scope of gender identities and experiences.”[footnoteref:30] the complexity of issues taken up in this volume are in no way, shape or form, homogenous; what may be colloquially seen as the “trans legal movement” is explored as a diverse set of movements with issues that cut across all areas of legal practice, study and experience. as cossman and leckey say in their introduction, the volume collectively offers themes that are, “granular and quotidian, dispersed and tentacular;”[footnoteref:31] and it is the uniqueness of these themes that i aim here to explore. [17: becki ross, “obituary for jamie lee hamilton” (2020) 35(2) canadian journal of law and society, 157 [ross]. ] [18: viviane namaste and dalia tourki, “trans justice and the law: from then to now, from there to here: a conversation between dr. viviane namaste and dalia tourki” (2020) 35(2) canadian journal of law and society 159-196 [namaste and tourki]. ] [19: dan irving and nathan hoo, “doing trans-economic justice: a critique of anti-discrimination laws and inclusive employment policies” (2020) 35(2) canadian journal of law and society 197-220 [irving and hoo]. ] [20: hébert, supra note 14. ] [21: kyle kirkup, lee airton, allison mcmillan and jacob desrochers, “the aftermath of human rights protections: gender identity, gender expression, and the socio-legal regulation of school boards” (2020) 35(2) canadian journal of law and society 245-268 [kirkup et al]. ] [22: leon laidlaw, “trans university students’ access to facilities: the limits of accommodation” (2020) 35(2) canadian journal of law and society 269-291 [laidlaw]. ] [23: samuel singer, “trans rights are not just human rights: legal strategies for trans justice” (2020) 35(2) canadian journal of law and society 293-315 [singer]. ] [24: ibid. ] [25: ibid.] [26: jake pyne, “‘building a person’: legal and clinical personhood for autistic and trans children in ontario” (2020) 35(2) canadian journal of law and society 341-365 [pyne]. ] [27: alexandre baril, marjorie silverman, marie-claire gauthier, and maude lévesque, “forgotten wishes: end-of-life documents for trans people with dementia at the margins of legal change” (2020) 35(2) canadian journal of law and society 367-390 [baril et al].] [28: singer and katri, supra note 15; brenda cossman and robert leckey, “introduction” (2020) 35(2) canadian journal of law and society 153-156 [cossman and leckey].] [29: ashley, supra note 1.] [30: singer and katri, supra note 15 at 151.] [31: cossman and leckey, supra note 27 at 155.] my aim, in this review, is to take up the challenge posed by singer and katri in their foreword – to turn a critical, legal and emotional gaze towards trans people at the margins,[footnoteref:32] and tease out of these articles, diverse as they are, some common threads and themes. i take as the starting point, as most of the authors do, that it is a common good that the law has changed in canada, to include trans and non-binary peoples in its articulation of who is worthy of human rights protection. and i follow them, as they invite all readers to do as well, to see how this protection is limited and formal, and how the important material and affective changes that should flow, in many spaces and places, are slow to happen.[footnoteref:33] [32: singer and katri, supra note 15 at 149.] [33: cossman and leckey, supra note 27 at 153.] i have divided the review into four sections: the granular, the quotidian, the dispersed and the tentacular. and i look at the contributions these 22 scholars make in mapping out the contours of the trans legal imaginary, as they were asked to do in the three day symposium in may 2019, when they were able to, and did, gather. the themes, questions and tensions that animate their works are extensive. my aim here is to tease out some of the connecting threads in a way that will bring readers into the volume for a deeper discovery of its richness for trans legal studies and beyond. the granular: the grainy and the gritty as libby adler argues, a focus on distributive justice shifts our “gaze away from grand aspiration and principled vindication and redirect[s] it downward, toward the gritty, low-profile rules, doctrines, and practices that condition daily life on the margins.”[footnoteref:34] [34: singer, supra note 22 at 314 citing libby adler, gay priori: a queer critical legal studies approach to law reform (durham: duke university press, 2018) at 15.] at the heart of any discipline or area of law are its most important aspects or practical details, what is both essential and basic. in this sense, the volume offers two such themes, cross-cutting offerings that permeate all of the articles with a contiguous thread. the first, is the definitional strides this volume as a whole takes to lay out the fluid boundaries of a trans legal studies movement. it shows what the discipline of trans legal studies can and could be. the second, is how, in that work to map the terrain of the field, each contribution shows what differentiates trans legal studies from its most frequent comparator and ally, queer legal studies, and from a sole focus on human rights law. there are many areas of similarity in the work, and the lives, of trans and queer scholar, many places for allies, and many intersecting peoples and questions. but quite profoundly, this volume demonstrates the insights to be drawn from trans legal studies for people living at the margins. and in doing the work, it also shows the significance and granularity of lived experience as essential methodology.[footnoteref:35] [35: singer and katri, supra note 15 at 149.] in the transcript of the keynote to the may 2019 conference, viviane namaste and dalia tourki are in conversation about the current challenges faced by trans legal scholars, activists and people, setting it against the history of the movement for trans legal recognition. they look to the civil rights movement, more that the gay liberation movement for parallels,[footnoteref:36] and offer that at the heart of the “gay movement” was a “fight to love freely.”[footnoteref:37] in their view and experience, the heart of the trans movement has been the “right to be loved.”[footnoteref:38] and while the movements share roots in questions of liberation, where there is divergence is in the move for state recognition, from about the 1990s on. in their view, equality before the law is absolutely essential, but the question of who remains left out, or othered, is the more critical and fundamental question.[footnoteref:39] [36: namaste and tourki situate their arguments in relation to the broader issues of the civil rights movement, as an influence on marginalized communities, and subsequent actions for recognition and redistribution, supra note 17 at 163. ] [37: ibid. ] [38: ibid.] [39: ibid. at 164. ] this notion – that the trans legal movement is at its heart a movement demanding attention to the margins -connects all the contributions in this volume. as samuel singer argues, human rights law is important, but not sufficient for trans justice, broadly cast;[footnoteref:40] and there is an “agility and creativity” needed to do legal advocacy on the margins.[footnoteref:41] this is similarly the starting place for dan irving and nathan hoo in their examination of the unand underemployment of trans peoples, and the limits of human rights laws to address unspoken and unconscious discrimination. they argue that while formal legal recognition remains important, “how can scholars, trans legal advocates, and employment policy advocates account for the disparities between anti-discrimination and employment laws recognizing gender identity and gender expression as protected grounds and trans people’s lived experiences of being marginalized within, or barred from the workplace?”[footnoteref:42] and, they continue, this is particularly so for trans women and bipoc. [40: singer, supra note 22 at 293.] [41: ibid. ] [42: irving and hoo, supra note 18 at 198. questions of how marginalization in workplaces may differ on the basis of gender for trans folk is investigated by kristen schilt and matthew wiswall in their 2008 study, “before and after: gender transitions, human capital, and workplace experiences” (2008) 8(1) the b.e. journal of economic analysis & policy 1-26 at 18-19. they argue that male privilege in respect of earnings does not carry over post-transition for the workers in their study. ] these two intersecting and foundational themes, that of the limits of human rights law and the significance of lives lived at the margins to trans legal studies as a discipline, are woven through all of the articles. kyle kirkup, lee airton, allison mcmillan and jacob desrochers, for example, examine how meaning-making – particularly with respect to the generally undefined legal terms of “gender expression” and “gender identity” – happens outside of formal court and tribunal settings. in the context of their work, such meanings are produced within school board policies in ontario. while continuing to ask questions about the margins and the marginalized, they assert that human rights law also has an educative function, signalling to trans peoples that there are avenues for legal recourse in the context of discrimination.[footnoteref:43] they do this, however, while making visible that human rights law, amongst other drawbacks, still obscures the complexity of the systemic, and is more easily accessed by those with economic and other forms of privilege.[footnoteref:44] [43: kirkup et al., supra note 20 at 250.] [44: ibid at 252.] this latter critique, that of the limits of rights-based instruments to address structural oppression, is taken up by leon laidlaw in his[footnoteref:45] investigation into the institutional cisgenderism in public institutions, in this case, universities. his study of the inclusivity of washrooms, changing rooms and on-campus housing offers three models of accommodation: binary inclusion, alternative accommodation and degendering.[footnoteref:46] in weighing the perils and possibilities of each solution he argues that notwithstanding efforts at the university level to be rights-compliant, it is evident that “dominant relations of power” continue to condition the lived realities of trans and non-binary students.[footnoteref:47] more reimagining and redesigning will be necessary to address the roots of structural oppression and violence, and to resolve the intersectional barriers to inclusion in university environments.[footnoteref:48] [45: for the first time i have turned my mind to how i use the pronouns of the authors that i cite in an academic work. for the authors in the volume i draw on the information that was provided at the conference, in their bios and on their websites for their pronouns. thank you to samuel singer who gracefully provided me with links and other information that i had not found. for all others i have done my best to access current information, while recognizing the importance of this ongoing citational practice. ] [46: laidlaw, supra note 21 at 273. ] [47: ibid at 287. the argument here is that heteronormativity and cisgenderism runs deep in the university context.] [48: ibid at 286. contextually, many questions about inclusion in the university context have arisen around bathrooms; and here meaningful inclusion requires attention to nuanced understandings of the needs of genderqueer students, alongside survivors of violence, students of faith, and others. laidlaw calls for attention to what is often cast as rights in conflict, that the sexism of our society be addressed in tandem with degendering facilities and to distinguish claims that arise from discriminatory stereotypes.] all the authors use as a touchstone that the inclusion of the lived experience of trans people within a human rights context is essential. there is no question that trans rights are human rights.[footnoteref:49] but, each of the authors also critiques and moves beyond the human rights framework, to cast their arguments in regimes beyond human rights law, and in contexts in which the issue is not so much about recognition as it is about survival. samuel singer asserts: [49: as a hashtag, meme or gif, this adage has become so common as to perhaps lose its meaning. it is also challenging that this historical moment necessitates stating what to this author is obvious, that the pursuit of inclusion for trans people necessitates a reminder of their humanity. in a legal context, the question of trans rights as human rights also requires a careful interrogation of human rights legislation and the structures of anti-discrimination provisions, many of which do not explicitly include gender identity or expression. for a good discussion of this phraseology see: https://www.openglobalrights.org/the-limits-and-the-promise-of-trans-rights-as-human-rights-claims/.] there is much more work to do to identify legal priorities that centre distributive justice and trans survival. trans jurisprudence and trans legal needs assessments provide us with starting points. trans justice is guided by the pressing needs of marginalized trans people. it goes beyond legal recognition through explicit human rights grounds and turns to the substantive work of helping marginalized trans people survive—by increasing access to low-cost housing and social benefits, decriminalizing sex work and drug use, fighting against racial profiling, supporting trans parents and trans youth, and through other projects that increase trans people’s life chances.[footnoteref:50] [50: singer, supra note 22 at 315.] the tension that is manifested in these narratives is one between trailblazing and survival.[footnoteref:51] there is evocative work here, both in trans communities by those advocating for material changes in their lives, and in this volume – by scholars and activists working to support those very calls for change.[footnoteref:52] and there is at the same time a recognition that “declaring marginalized people equal under the law does little to improve their daily lives.”[footnoteref:53] [51: singer and katri, supra note 15 at 149.] [52: the work of this volume stands on some important shoulders. see for example, spade, supra note 2. ] [53: singer and katri, supra note 15 at 149. see also sharon cowan, “the best place on the planet to be trans? transgender equality and legal consciousness in scotland” in s. raj and p. dunne (eds), the queer outside in law: recognising lgbtiq people in the united kingdom (london: palgrave macmillan, 2021) 187-232 at 190.] the quotidian: the ordinary and the every day a mentor and mama to generations of queer, two spirit, trans, and indigenous youth, jamie lee [hamilton] was respected for her kindness, mentorship, tenacity, and generosity of spirit. her appetite for mac cosmetics, chinese cuisine, fish & chips, glamorous fashion, community building, and radical social justice was epic.[footnoteref:54] [54: ross, supra note 16 at 257.] the scholarship in this volume, while addressing the fundamental issues of human rights, of lives lived on the margins, of recognition and survival, also addresses the ordinary, the achingly human, and the every day.[footnoteref:55] and while that might not sound like the subject of exhilarating and compelling scholarship, what this volume points to are the places where trans lives matter. things that might ordinarily be taken for granted, like a safe place to change before going swimming with your family, or having your gender identity recognized in dorm room assignments, can look very different through a trans and non-binary lens. in other words, it is important to acknowledge that, as in critical disability studies, difference is not deficit;[footnoteref:56] at the same time there is an inherent violence in cisnormativity[footnoteref:57] that is often invisible within that which is otherwise taken for granted. [55: i have taken this definition of “quotidian” from an online source: https://www.lexico.com/definition/quotidian.] [56: pyne, supra note 25 at 345.] [57: cisnormativity is the assumption that having a gender identity that aligns with your sex assigned at birth is the norm and is rightfully privileged over other forms of gender identity. see for example: https://www.lgbtqprimaryhub.com/heteronormativity-cisnormativity.] first and foremost, there is a compelling sense, throughout the volume, of the lives of trans people as dignified and worthy of respect. notwithstanding that trans lives tend to have more justiciable legal problems than those of other canadians[footnoteref:58] there is underlying all this “brave and brilliant”[footnoteref:59] scholarship, a call for people to be able to just be who they are. becki ross’ brief obituary of jamie lee hamilton captures these tensions fully – trans, two-spirit, metis and cree, hamilton is remembered for dedicating her life to advocating for indigenous peoples, sex workers, lgbtq+ and low income folk in vancouver’s poorest neighbourhood, the downtown eastside.[footnoteref:60] hamilton was also celebrated in the keynote for, amongst other things, an action she staged in 1998, leaving 67 pairs of stilettos on the steps of vancouver city hall, in an attempt to bring attention to missing indigenous women and sex workers, to an apathetic city.[footnoteref:61] her later testimony in front of the inquiry into murdered and missing indigenous women and girls in 2018, showed how the diverse communities of her neighbourhood were seen as disposable; and at the same time “how solidarities between communities happen and how expansive and intersectional activism and advocacy can be.”[footnoteref:62] the work of jamie lee hamilton is an important reminder of the ways that feminist activism is enhanced by trans-inclusive practice. [58: baril et al., supra note 26 at 370.] [59: cossman and leckey, supra note 27 at 156. ] [60: ross, supra note 16 at 157.] [61: namaste and tourki, supra note 17 at 160.] [62: ibid at 162.] captured best, at this moment in the canadian legal landscape, in the theme of “access to justice,” this volume is also very effective in setting out numerous legal strategies, ideas, and innovations, to address trans and non-binary peoples as a population in canada that experiences systemic barriers to obtaining legal advice and representation.[footnoteref:63] and, in particular, attention is given to communities seeking access to justice even further at the margins – stories of trans and non-binary peoples in prison,[footnoteref:64] trans elders living with dementia,[footnoteref:65] and trans youth subjected to conversion therapies.[footnoteref:66] for example. william hébert’s contribution looks carefully at policies put in place in federal prisons in canada in response to bill c-16, progressive initiatives aimed at assessing trans prisoners’ accommodation through the development of individualized protocols.[footnoteref:67] his examination makes evident that the new policy did not radically change the fact that prisons are fundamentally not safe places for trans prisoners, nor indeed anyone.[footnoteref:68] the twin driving principles of the new policies included a commitment to ensuring a safe, inclusive and respectful environment with the duty to accommodate on the basis of gender expression and gender identity.[footnoteref:69] the outcome however was that the rights ideal sat quite uncomfortably for administrators, staff and prisoners, in a gendered context of risks. hébert argues that in “everyday encounters, the truth of people’s sex is not determined by their genitalia, but through a process of intersubjective social recognition contingent upon their capacity to achieve the normative look expected for their identity – a look that requires a harmonious alignment between physical appearance and embodied gendered performance.”[footnoteref:70] the special treatment of the post-bill c-16 policies had the unintended consequence, according to trans interviewees and staff, of bringing with it more intensive scrutiny and surveillance, situations of attenuated risk.[footnoteref:71] [63: there is a good discussion of what we mean when we talk about “access to justice” in these 2018 remarks given by the right honourable richard wagner pc, chief justice of the supreme court of canada: https://www.scc-csc.ca/judges-juges/spe-dis/rw-2018-10-04-eng.aspx?pedisable=true.] [64: hébert, supra note 14. ] [65: baril et al., supra note 26. ] [66: pyne, supra note 25.] [67: hébert, supra note 14 at 228.] [68: ibid at 236.] [69: ibid at 227.] [70: ibid at 238.] [71: ibid. at 239.] similarly, attention to accommodating the needs of trans people living with dementia (tplwd) can also lead to unanticipated consequences. in the baril, silverman, gauthier and lévesque study, the issue of tplwd losing their capacity to instruct their chosen, substitute decision-maker about their end-of-life care was guided by two unproblematized assumptions, that gender expression and gender identity are stable concepts; and that the self pre-dementia is better suited to making decisions than the self experiencing dementia.[footnoteref:72] yet, by paying attention to the harms of cisnormativity and cognonormativity[footnoteref:73] the authors are able to make visible the potential violence of leaving the assumptions unchallenged. freezing the gender of a person at the moment of dementia risks also freezing the notion that people adhere to a stable gender identity throughout their life.[footnoteref:74] and coming to the conclusion that people with cognitive disabilities are unable to make choices, devalues all people living with dementia.[footnoteref:75] in quite a subversive and supportive argument, the authors are able to centre trans people with dementia and their voices, ensuring an environment where all sorts of gender expression are valued, and that pays attention to the multiplicity of ways that people with cognitive disabilities might express their choices for their care.[footnoteref:76] [72: baril et al., supra note 26 at 370.] [73: andrew king coined the term “cognonormativity” to problematize the norms regarding cognitive abilities in societies that marginalize people with intellectual disabilities, including people living with dementia: “queer(y)ing dementia – bringing queer theory and studies of dementia into dialogue” in s. westwood and e. price (eds), lesbian, gay, bisexual, and trans individuals living with dementia. concepts, practice and rights (abingdon: routledge, 2016) 51-64 at 59.] [74: baril et al., supra note 26 at 377.] [75: ibid at 378.] [76: ibid at 382.] there is poignancy in sitting with the trans legal narrative of an elder with dementia, who forgets every now and then that they transitioned 40 years earlier. we readers are asked by these authors to pause and understand in an unsettling way what normativity in these every day moments demands. is the violence in being denied chosen pronoun use on those days of fluctuating cognition, or is the violence in not respecting the stable gender identity lived before dementia? this same argument, that “people with disabilities of all ages have a history of being pathologized and denied voice and choice when it comes to decisions regarding health, housing, sexuality and so forth”[footnoteref:77] holds true for both trans people living with dementia, and trans youth who were subject to a lovaas study at ucla in the 1960s and 1970s.[footnoteref:78] in june of 2015 ontario passed bill 77, designed to ensure the protection and rights of ontario’s lesbian, gay, bisexual and transgender communities by banning conversion therapy.[footnoteref:79] this trans depathologization[footnoteref:80] is without question, an important and necessary good, but what it opens up for interrogation is how, as jake pyne argues, “the affirmation of personhood for some can rely on the disaffirmation of others.”[footnoteref:81] the protections from harm in this bill, designed to protect trans youth, do not extend to autistic trans youth, prompting questions on both the role that ableism plays in trans identity and personhood claims, and at whose expense a “right-bearing trans person has been built.”[footnoteref:82] while conversion therapy for trans youth is banned, what pyne argues is a similar therapy of dehumanizing behaviour modification, in this case applied behavioural analysis or aba for autistic youth, is not only government funded, but in many places legally mandated as a treatment for autism.[footnoteref:83] interrogating the changes embedded in bill 77 for trans youth, opens up a way to see the ableism embedded in what is otherwise an unqualified good, particularly when situated against a view of aba as a form of cultural annihilation.[footnoteref:84] this offers us a powerful way into the juxtaposition of difference and deficit. [77: ibid at 381, citing eli clare, exile & pride: disability, queerness and liberation, 2nd ed. (new york: south end press, 2009).] [78: pyne, supra note 25 at 341.] [79: bill 77, supra note 4.] [80: for a discussion of the depathologization movement, and a reimagination of the human rights framework within the work of vulnerability, see chris dietz and ruth pearce, “depathologising gender: vulnerability in trans health law” in c. dietz, m. travis and m. thomson (eds), a jurisprudence of the body (london: palgrave macmillan, 2020), 179-203. ] [81: pyne, supra note 25 at 343.] [82: ibid. ] [83: ibid. at 342.] [84: ibid at 358.] the dispersed: different directions, different understandings just as queer theory took longer to insinuate itself into legal scholarship than it did in the humanities, trans studies have perhaps moved further in other areas than in the legal academy. its arrival in law is kinetic and transformational. trans legal studies may be informed by the insights of critical legal movements that have gone ahead, but it is asking new sets of questions, unearthing long naturalized assumptions, and demanding that we look at law anew.[footnoteref:85] [85: cossman and leckey, supra note 27 at 155.] the third modality i have chosen to explore is dispersion – the way that trans legal narrators take the systemic and the everyday in different directions and to different destinations.[footnoteref:86] one of the main contributions of this volume beyond its rigour, is the treasure trove of unsettling surprises. this collection is a model for what careful legal analysis can offer, particularly to those whose lives and experiences often sit outside the normative legal gaze. this is most evident in the many unsettling assumptions these authors unearth. problematizing what may otherwise be unquestioned is a model for those working within the fields here – those of employment, prisons, social benefit delivery, for example – but also for areas of law and practice beyond these fields. as such, these articles are not just of value to those working to understand the trans legal subject, but to those seeking to question the embedded assumptions within law that give it the power to exclude, across disciplines, jurisdictions, and imaginaries. [86: i have taken this definition of dispersed from an online source: https://www.vocabulary.com/dictionary/disperse.] i explore four assumptions highlighted by the contributors here: the first, that human rights law offers the trans legal subject an unquestioned good; the second, that discrimination law is appropriately focused on the experience of the marginalized; the third, that the gender binary is an unquestioned core of human existence; and finally, that the issues of trans youth are at the heart of this new and emerging area of study. one benign assumption is that employment law would be an area of law most positively impacted by bill c-16, and in particular, the notion that discrimination on the basis of gender expression is expressly prohibited would benefit trans people in addressing unemployment or underemployment concerns. what irving and hoo demonstrate, however, is that prohibitions against direct discrimination were already a core component of employment law in canada; and in fact the all too frequent indirect, adverse, and the systemic forms of discrimination are much harder claims to prove, even with the change in the law.[footnoteref:87] but more importantly their study shows that the “existing sex/gender binary system shapes dominant approaches to employability”[footnoteref:88] and as a result, human rights law cannot in and of itself correct the inequities of underemployment flowing from unconscious demands for fit, for bodies that produce affective labour, and for the sensate experiences of marginalization and exclusion that workplace denials incur.[footnoteref:89] the study of trans unand underemployability makes visible that changes in human rights law cannot rectify the unspoken demand for certain bodies in the workplace.[footnoteref:90] [87: irving and hoo, supra note 18 at 204.] [88: ibid at 211.] [89: ibid at 209.] [90: ibid at 219.] the authors do, however, point to numerous places where the change in human rights law has been significant, for symbolic, educative and operational reasons. in their study of the places and spaces where the concepts of “gender expression” and “gender identity” are inscribed with meaning, kirkup, et al. quote patricia williams on the promise of human rights protections, particularly for people of colour. she argues, “for the historically disempowered, the conferring of rights is symbolic of all the denied aspects of humanity: rights imply a respect which places one within the referential range of self and others, which elevates one’s status from human body to social being.”[footnoteref:91] the signal of naming gender expression and gender identity in canadian human rights law should not be underestimated or downplayed. [91: kirkup at al., supra note 20 at 250, citing patricia j. williams, “alchemical notes: reconstructing ideals from deconstructed rights” (1987) 22 harv. civ. rts. civ. liberties l. rev. 401 [williams]. ] kirkup et al., are also effective in showing that sometimes it is necessary to move outside of the formal spaces of law, courts and tribunals, for example, to understand the way that meaning is constructed in these terms. in their study of school board policies, for example, they are able to show that “gender identity” and “gender expression” are given more expansive and inclusive meanings in school board contexts, definitions that allow people to do gender in a broader variety of ways.[footnoteref:92] importantly they point to several policy definitions with an explicit commitment to “gender expression” and “gender identity” as universalizing constructs “applying to all members of the school community, regardless of whether or not they identify as transgender and/or non-binary.”[footnoteref:93] drawing on the work of florence ashley, kirkup et al. argue that looking outside of courts and tribunals for an understanding of the ways to delineate understandings of gender, particularly in an education setting, enables more plural and contradictory understandings of these terms.[footnoteref:94] [92: for ways in which forms of government regulation can be harmful in this context, see: https://www.theguardian.com/education/2020/sep/25/government-issues-gender-identity-guidance-for-teachers-in-england.] [93: for example, the greater essex county district school board’s 2016 supporting gender identity policy defines “gender expression” as “the various ways that we communicate our gender identity to others, for example, social roles, clothing, body language, hair styles, speech patterns, and voice pitch, given name, etcetera. often this communication is ascribed to us at a young age and imposed on us through social norms and values.” kirkup et al., supra note 20 at 264-265. ] [94: ibid at 266.] the question of the gender binary, and the tension that exists within trans legal studies between those who have fought hard for a gendered position within the gender binary and those who see gender as fluid or position themselves outside the binary, are also explored in this volume with care and with rigour.[footnoteref:95] in laidlaw’s analysis of differing accommodation models for trans students at university seeking housing, even the most progressive attempts to seek inclusive solutions risk non-inclusion of those whose gender is fluid, and for whom the increased cost and isolation of rooming alone is problematic too.[footnoteref:96] [95: namaste and tourki, supra note 17 at 166-167.] [96: laidlaw, supra note 21 at 279, 282.] florence ashley shines a direct spotlight on the gender binary in their autoethnographic examination of the trans legal subject, situating their analysis in both the law and the language of quebec. ashley takes a careful look at two models for inclusion – medical and minoritizing models – and shows that both render the trans body invisible, by creating bodies in need of correction against a cisgender ideal on the one hand, and by creating quintessentially marginalized subjects on the other.[footnoteref:97] in their view we readers should replace the concept of gender identity with “gender modality” within anti-discrimination law, to fight the myth that gender identity is the province of trans people, and simultaneously remove “sex” as a juridical and administrative category.[footnoteref:98] [97: ashley, supra note 1 at 333, 335.] [98: ibid at 339. see the discussion of the uk future of legal gender project (the flag project), exploring the consequences for us all if the state steps back from recording, confirming, recognizing or standing behind sex or gender as formally attributed aspects of personhood: davina cooper, emily grabham, and flora renz, “introduction to the special issue on the future of legal gender: exploring the feminist politics of decertification” (2020) 10(2) feminists@law: https://journals.kent.ac.uk/index.php/feministsatlaw/article/download/937/1797?inline=1.] and finally here, the volume looks at issues of trans people across ages from the important work of banning conversion therapy for youth, through the issues faced by trans people living with dementia facing end of life questions about care and identity. in the keynote, however, namaste and tourki raise the issue of the focus on trans youth. they assert: unfortunately, it’s only when trans youth are in the picture that people tend to become invested in a debate or a conversation about trans people. in that debate, on the one hand, you have trans people and allies who fervently advocate for ‘saving the child’ by supporting and affirming trans youth’s identities and journeys. on the other hand, you have anti-trans people who also want to ‘save the child,’ but to save them from trans people and from the so-called ‘trans agenda.’ what the two sides agree on is that the child needs to be saved. the questions that i ask are: where were all the supporters and the allies when the child was out of the picture? where were that allyship and solidarity before trans youth became the face of the trans movement? trans history tells us that there have been—and still are—other faces to trans existence. for a long time, trans sex workers were the face of the movement. other times, although stereotypically and in an effort by the media to ridicule trans women, trans women who don’t pass have been the face of the trans existence. however, it seems to me that allyship and solidarity from cis people did not happen until— unless?—trans youth became centred.[footnoteref:99] [99: namaste and tourki, supra note 17 at 168.] the question that namaste and tourki pose is a good one, notwithstanding that the issues of trans youth, and in particular racialized, indigenous, immigrant and poor trans youth, are important areas of study. they query what it could look like if researchers were to “zoom out” and consider “trans issues that don’t begin with [youth] as an object of study. what might that produce?”[footnoteref:100] in so many ways, that is what the authors of this volume do, even in the context of the one article more focused on the issues of youth, jake pyne’s study, complicating what it means to look at trans youth without focused attention on ableism and the pathologizing of disability. [100: ibid.] the tentacular: far-reaching and (in)dependent speaking from experience, a lot of people will come to the organization where i work seeking legal help, but unfortunately, the law, even though it protects our communities, is still not accessible. we need to ask, to whom is it accessible? who can actually get a lawyer and who actually has the strength and the endurance to go to court and stand up for their rights? that, too, needs to be thought about, especially with the increasing number of trans people who go to community organizations trying to find that legal help and who, unfortunately, can’t respond or fight back—sometimes because of a lack of expertise and sometimes due to a lack of capacity. a big question to tackle is how to make the law accessible to people and not only on a theoretical level but also in daily life experiences.[footnoteref:101] [101: ibid at 175.] my final turn in this review is to the tentacular, the far-reaching and the (in)dependent. to the ways that these articles are both dependent and independent, and as is often the case with the tentacular, those long autonomous threads are difficult to manage, difficult to understand and on occasion difficult to bring together.[footnoteref:102] to conclude i offer a few questions, with an eye to future work, and study, and to the ways that this volume can be of critical use across diverse disciplines and modes of study. and, as i started, i want to offer a counter-narrative to some of the downsides of this political moment, where the understanding of what it means to be a trans person in the world is homogenized, and where the risks of isolation and violence are both great and downplayed. [102: this is my own definition of what tentacular means.] and it is here that i start with a call for ensuring that alongside issues of gender diversity, the questions of trans peoples are situated firmly within other dimensions of diversity, inclusion, anti-racism and anti-colonialism. the articles in this volume, without exception, situate their subject matters with respect to marginalization, and the analysis deepens as a result. the volume begins with the life story of jamie lee hamilton, a trans woman whose life embodied the very issues to which she dedicated her energies and activism.[footnoteref:103] irving and hoo also take a very focused look at the role that whiteness plays for trans people seeking employment. but in places issues of race, and in particular of what it means to be indigenous and trans in canada today, are only minimally taken up and considered. the boundaries of privilege and what it means in a context where the demands of affective labour are subliminal, is an apposite set of questions across areas of law.[footnoteref:104] how is the trans legal subject understood beyond the issues of gender identity and gender expression? [103: ross, supra note 16; namaste and tourki, supra note 17. ] [104: irving and hoo, supra note 18 at 215.] in addition, the volume is rigorous and the quality of scholarship, study and innovation is excellent. but in places it is inaccessible, particularly in the use of deeply theoretical nomenclature and terminology. heuristics and normativity, epistemologies and cisgenderism, are all critical concepts for scholars working carefully to advance this area of study. but it does mean that for many working on the day-to-day aspects of these very issues, on the ground, in offices and at the dinner table, some of these arguments operate using language that could make them less likely to be consumed, debated and understood. this is the lived experience of praxis: ensuring rigorous and innovative scholarship in a field of study inhabited by marginalized peoples for whom systemic change is elusive, and material change is life-threatening. there is also an important critique in the keynote, raised by namaste and tourki, that there is an imbalance that they see in the work on trans issues in recent years, across a variety of settings, cultural production, policy and scholarship. in their view, the vast majority of it is enacted by trans men.[footnoteref:105] they query whether that is also the case in academia, and if so, what might be done to intervene. and my reflection here is that this seems to be reflected even within the published authors in this volume. and it takes me back, in some ways, to where this review started, that this moment is rife with binaries and with dissension. understanding those disagreements matters, but so also does holding up exceptional work, and doing the kind of collaborative, collective, inspiring that this volume asks of its subjects, its readers and each other. [105: namaste and tourki, supra note 17 at 172.] conclusion: transformational telling some of trans people’s legal stories also helps render visible the trans legal subject, which, albeit constituted within the narrative constraints of the legal system, brings us closer to centring trans people as legal actors.[footnoteref:106] [106: singer, supra note 22 at 302.] the aim of this review is embodied by singer’s words, to effect transformation in the societal view of the issues faced by trans and non-binary peoples as exclusively an issue of recognition; to challenge the reader to deepen their understanding by entering this volume and its collected works. at the same time, it is my hope that encouraging readers to read this volume will play a role in countering the narrative, held by some, that feminist and trans legal activism sit in inexorable tension to each other. the articles here all demonstrate carefully and critically that the issues faced by trans and non-binary legal actors cross legal barriers, jurisdictions, theoretical constructs and imaginaries. and while none of them make the primary focus of their analysis the current political positioning of people who advocate anti-trans ideologies under the banner of feminism, all of them are situated in a world in which the lives of trans and non-binaries peoples are facing extensive and continued marginalization. at the end of the day, the ostracization of people who have historically faced discrimination on the basis of gender is what makes this special volume of the canadian journal of law and society[footnoteref:107] of importance to everyone working in law today, and in particular to people with a deep commitment to feminism. the volume pauses, amidst the whirlwind that we find ourselves in at this moment,[footnoteref:108] and pays attention to the diverse stories of trans and non-binary peoples, many of whom are living in the margins of canadian society, to shine an inclusive light on the plurality of their issues, stories, and lived experiences. collectively, this work offers up tensions as a means to revitalize advocacy, to offer more ways into understanding, alliance and change.[footnoteref:109] the volume is a powerful contribution to deepen necessary conversations on one of the most important sets of questions of our time. [107: for another review of this excellent volume see kim brooks, “a lively conversation on trans legal change”, jotwell (january 25, 2021: https://equality.jotwell.com/a-lively-conversation-on-trans-legal-change/.] [108: this phraseology is drawn from the work of elizabeth f. emens, looking at a similar debate with respect to monogamy, polyamory and polygamy: “monogamy’s law: compulsory monogamy and polyamorous existence” (2004) 29 n.y.u. rev. of law and social change 277-376 at 278.] [109: for a similar reframing, see cowan, supra note 52 at 188. ] _____________________________________________________________________________________ 20 _____________________________________________________________________________________ 1 flora renz the challenge of same-sex provision _____________________________________________________________________________________________________ feminists@law vol 10, no 2 (2020) _____________________________________________________________________________________________________ the challenge of same-sex provision: how many girls does a girls’ school need? flora renz[footnoteref:1]* [1: * lecturer in law, kent law school, university of kent, uk. email: f.renz@kent.ac.uk this article is based on research conducted as part of the esrc funded project, “the future of legal gender”, award number es/p008968/1. i am very grateful to avi boukli, davina cooper, emily grabham, robyn emerton, kate malleson, elizabeth peel and the two anonymous reviewers for their comments. this article in its various iterations also benefitted enormously from comments made during its discussion at the university of victoria, canada, mcmaster and manchester universiies. with particular thanks to christine quinan and jennifer fraser for their incisive commentary on this article.] abstract can a girls’ school include a boy and remain a single-sex school? is there something intrinsic to being a girls’ school that exists separately to pure demographic issues? does single-sex education, and specifically female single-sex education, have an inherent value that is different to that of mixed sex education? to address these questions, this paper draws on some initial findings from a wider research project on the future of legal gender. specifically, this paper will consider the implications for single-sex services if legal gender status were to be reformed. especially, what would the consequences be for reform options which (re)allocate authority to organisations or individuals to determine gender criteria and individual status in terms of eligibility to receive or access services? the article uses the example of single sex schools to consider two key questions regarding potential reforms in this area. firstly, what aims is gender differentiation currently trying to achieve? and secondly, how do service providers, including secondary education providers, currently engage with challenges to their differentiation criteria? introduction in 2018 channel 4 premiered the show “derry girls” set in 1990s northern ireland and centered around a group of students attending a catholic girls’ secondary school. the show starts with the arrival of james, a cousin of one of the girls, who is about to become a new addition to their community (von cohen, 2019). although a boy, he joins the girls at their all-girls’ school, supposedly because the local boys’ school would not be safe for him as an english person during the troubles. during the first few episodes james is frequently treated as a girl or presumed to be one, although maybe an “odd” looking one. at the same time this is never read as a serious issue for a girls’ school, which does not have male student bathrooms, and in fact the school makes no accommodations for this new student. although james repeatedly protests that he is not in fact a girl, generally for comedic effect, the second series concludes with him triumphantly declaring that he is in fact a “derry girl”.[footnoteref:2] this moment is portrayed to the audience as a happy and even serious and triumphant ending. this is clearly not perceived as a reconceptualisation of james’ literal gender but rather as him embracing a specific ethos, primarily of a “found” family conceived around care for each other in opposition to a hostile outside environment. of course the show is primarily intended as a comedic examination of coming of age in a specific time period and in the context of wider social unrest, rather than a serious examination of gender norms in secondary schools. nevertheless it raises a number of interesting points. does single-sex education, and specifically female single-sex education, have an inherent value that is different to that of mixed sex education? can a girls’ school include boys and remain a single-sex school? is there something intrinsic to being a girls’ school that exists separately to pure demographic issues? [2: which does in fact match real-life practices in at least one existing girls’ school (blake, 2014).] to address the above questions, in this paper i will draw on some initial findings from the wider esrc funded research project the future of legal gender (flag). as addressed in the introduction to this special issue, flag is a prefigurative law reform project that asks whether legal gender status still matters, in what circumstances, and for whom. by asking a law reform question that is not yet on the table, namely, what value does the current status quo have (if any), this project seeks to explore the consequences and impact of more fundamental changes to legal gender status. flag critically considers what would happen if gender were to be decertified, in the sense that sex would no longer be certified by the state at birth, while at the same time gender-based inequality remains subject to state attention and intervention through, for instance, anti-discrimination law or affirmative action.[footnoteref:3] specifically, this part of the project considers what the implications for single-sex services are, if legal gender status were to be reformed. in particular, what would the consequences be for reform options that (re)allocate authority to organisations or individuals to determine gender criteria and individual status in terms of eligibility to receive or access services (for a more detailed discussion of this see cooper and renz, 2016)? the materials drawn on in this paper have emerged from documentary material as well as semi-structured interviews conducted between 2018-2020 with three education policy experts and seven current members of school leadership teams from secondary schools across england. although this is a relatively small sample size, it offers valuable qualitative data around these issues and seems to reflect wider public debate happening in this area. [3: for a full discussion of our approach to decertification see cooper and emerton (this issue).] for the purposes of this paper, i will use the example of single-sex schools[footnoteref:4] to consider two key questions regarding potential reforms in this area. firstly, what aims is gender[footnoteref:5] differentiation currently trying to achieve? and secondly, how do service providers, including secondary education providers, currently engage with challenges to their differentiation criteria? the focus of this research is on the effects a potential change to the existing legal framework for assigning and recognising legal gender would have on everyone in england and wales, not just trans and non-binary people and not just trans[footnoteref:6] or non-binary students. however, it should be noted that considering the ways single-sex services and more specifically schools have handled trans inclusion can provide some insight regarding the potential flashpoints and tensions that may emerge in this area,[footnoteref:7] if wider changes were to be made. indeed over the last two years there has been a notable increase in news stories about the ways schools have made efforts to include trans or non-binary pupils (see, e.g. ross, 2017; ferguson, 2017). although the increased media attention may be a fairly recent development, as will be discussed further below, such efforts at inclusion have proliferated for a number of years since the introduction of the equality act 2010, but are only now receiving wider public attention. [4: although most schools could more accurately be described as “single-gender”, in the sense that they often prioritise students’ gender identity over their legal sex as registered on their birth certificate, i am using the term “single-sex” as this is the terminology primarily used by educators and policy experts in this area, although school policies tend to refer to “gender”.] [5: terminology around “sex” and “gender” is currently somewhat contested. gender, here, is used to refer to a process that is socially manifested and which often includes “sex”, especially as the legal terminology around this uses both “sex” and “gender” inconsistently and at times interchangeably.] [6: i am using “trans” rather than “transgender” or “transsexual” to accommodate a variety of identity categories that may not necessarily align with a binary understanding of sex and gender, encompassing identities such as genderqueer and agender more readily than the medically defined “transsexual”.] [7: peel and newman (this issue) set out some of these flashpoints regarding public attitudes to single-sex provision.] justifying separate education for girls while single-sex schools may be the most notable example of separate educational provision, they are not the only instance in which educational institutions limit access based on a specific characteristic. in fact in the context of the us, higher education institutions have long offered separate provision based on sex/gender, as well as ethnicity. unsurprisingly, many women’s colleges in the us are currently also grappling with the question of whether, and how, trans students should or should not be included (kraschel, 2012). while these debates most frequently focus on the inclusion of trans women, the inclusion of trans men within these female spaces is generally less contested despite seeming more at odds with the idea of a “women’s” college. overall within these spaces there seem to be moves towards self-identification being seen as a sufficient requirement for entry. this has raised particular challenges for institutions that were set up explicitly to address the exclusion of women from higher education, with some arguing that this will make it harder to address the legacies of sustained and systemic inequality in the context of education (brymer, 2011). similar tensions between a move towards greater inclusion on the one hand and a need to address systemic inequalities affecting specific groups on the other hand are also played out in the context of contemporary debates about the need to maintain single-sex spaces in secondary education in britain (paechter, 2020). historically the proliferation of girls’ secondary schools in england and wales dates back to the early to mid-19th century and the education act 1902. generally contemporary single-sex schools justify their exclusion of either boys or girls, by referring to what they perceive as the benefits of single-sex or single-gender education.[footnoteref:8] particularly in the context of girls’ schools this is often framed around an explicit or implicit narrative about the oppression and discrimination women and girls face in education and the wider society. as such girls’ schools often advocate a specific type of feminism focused around academic achievement (leonard, 1995: 25).[footnoteref:9] in this sense girls’ schools can be read as a social or educational, rather than a primarily law-based, attempt to compensate for or alleviate gender based harm and oppression (cf. cooper and emerton, this issue). [8: the equality act specifically addresses the issue of single-sex schools in schedule 11, para. 1 and states that single-sex schools are not in breach of the act’s prohibition on sex discrimination. ] [9: while this is less common now, this emphasis on academic achievement has often been at odds with the implicit aim of many girls’ schools to also instill traditional values around both gender and class-based behaviour, which becomes particularly explicit around uniforms and codes of conduct for students (heyward, 1995; delamont, 1989; okely, 1987). ] indeed, existing research suggests that even when students are rated the same in terms of their abilities, female students are given less attention and instructions than male students in classroom settings (see, e.g. leroux and ho, 1993).[footnoteref:10] one key argument then for explicitly “female” spaces within education is that it allows girls some limited escape from an education system still based around patriarchal values and male domination (gonick et al., 2006; connell, 1985). as such girls’ schools are often seen as providing a positive educational space as they encourage girls to take more stereotypically ‘male’ subjects, particularly stem subjects, as well as encouraging specific types of personality development, such as confidence, assertiveness and independence, which are seen as being more difficult to achieve for girls within mixed educational environments. therefore it is perhaps unsurprising that the falling numbers of girls’ schools in present-day britain have led to concerns that this will negatively affect the educational experiences of girls who will increasingly be attending mixed-sex schools (burgess, 1990; shaw, 1980). [10: this type of differential treatment has been observed in almost all aspects of the education system and generally seems to act to the detriment of girls, or those perceived as such (lindroos, 1995; tsolidis and dobson, 2006).] beyond empirical arguments about students’ achievement in single-sex educational environments, a wider argument for the existence of girls’ schools seems to be focused on the kind of space they provide for prioritising different types of experiences and ways of being. notably, this in many instances focuses more an overarching ethos than the actual gender(s) of the people involved. for instance, gonick et al. (2006: 144) note that within their collective’s attempt to create a “girl-defined” space within a secondary education setting, they did not actually prevent boys from being part of the space, but rather sought to centre female experiences and agency. meem (1991: 23) similarly suggests that rather than focusing on rules of exclusion/inclusion a feminist approach to teaching, and particularly to teaching within single-sex spaces, should prioritise a specific ethos, what she defines as “feminist values”, including a more group rather than individualistic approach to learning and working, as well as “respect for women, female strength and power” to enable both individual success but also success as a group. hayward (1995) further suggests that girls’ schools can help to shift the way in which characteristics that are viewed as more “male”, such as authority, assertiveness, and physical achievement, are valued higher than those perceived as more “female”, such as caring, empathy and cooperation.[footnoteref:11] however, it should be noted that while it would of course be difficult to empirically prove this, it seems plausible that in order for a single-sex educational space to function in such a way, there needs to be a clear intent on behalf of educators to facilitate this.[footnoteref:12] [11: while gendered behaviours and values have been analysed and discussed in some detail, “femininity” or “female” as an ethos or intrinsic value in and of itself, particularly as distinct from a feminist ethos, seems less thoroughly theorised and therefore more slippery to pin down (see, e.g. paechter, 2018).] [12: see, for instance, the discussion by kruse (1992) of an experimental approach to single-sex education within the otherwise co-educational danish school system and by warrington and younger (2003) of a similar initiative in english comprehensive schools.] somewhat playfully, burgess (1990) argues that single-sex spaces within education actually offer students the “freedom not to behave as a woman”. while burgess’ statement is aimed primarily at the potential for single-sex spaces to allow inhabitants to escape gender-stereotypes, it may also be important to consider to what extent single-sex spaces allow simultaneously for both particularly intense instances of gender policing[footnoteref:13] as well as radical challenges to sex/gender paradigms. this is not to say that single-sex educational spaces inherently challenge gender norms or boundaries, in many instances they may actually re-enforce them.[footnoteref:14] more broadly, others have argued that single-sex schools can normalise gender stereotypes (heyward, 1995) and an outdated understanding of sex and gender as “natural” and purely binary concepts (jackson, 2010).[footnoteref:15] there is clearly a risk that “femininity”, particularly in single-sex spaces, becomes primarily defined as an other to or abnegation of “masculinity” (paechter, 2006) or in comparison to other ways of being female centred less around academic or professional achievement. at the same time there is also the potential within the context of single-sex schools for both concepts to be reconceptualised and delinked from a notion of biological essentialism or potentially to become irrelevant entirely if single-sex spaces are understood as encouraging a specific way of being in the world, rather than specific individual identities or signifiers. [13: with the women’s bathroom being perhaps the most easily identifiable instance of such gender policing (rasmussen, 2009; browne, 2004; halberstam, 1998).] [14: see, for instance, allan (2009) for a discussion of how female gender norms are played out and entrenched in a single-sex primary school.] [15: beyond ‘merely’ instilling pupils with a sense of appropriately gendered behavior, such implicit teaching of gender norms may also serve to further entrench a sense of being a gendered consumer within a neoliberal, capitalist society (davies and saltmarsh, 2007), as contemporary understandings of what it means to be ‘male’ or ‘female’ are often closely linked to specific consumerist behavior.] girls’ school frequently present themselves as a “safe space” or even as having a “cloistered ethos” (goodman, 2005),[footnoteref:16] which primarily means that girls do not have to compete against boys, are presumed not to be subject to harmful gender stereotypes and are therefore empowered to be confident and assertive about their academic abilities. for instance, one interviewee who had experience of working in both mixed-sex and single-sex schools explicitly highlighted this perceived advantage: “you do get a disproportionate number of girls, compared to co-ed schools, who study physics and maths, who want to go on and read engineering. and by the time they leave us and get into those environments, they are self-assured.” prevailing arguments about the benefits of single-sex education are supported by at least some of the available education research, which indicates that girls in general benefit from single-sex education, although this effect may be less significant than is sometimes claimed (see, e.g. malacova, 2007; tsolidis and dobson, 2006). interestingly the equality act already makes it explicit that a school’s single-sex status should not be affected by admitting a small number of pupils of the opposite sex.[footnoteref:17] this is likely primarily aimed at single-sex schools that admit pupils of the “opposite” sex during the final years of secondary education or that cooperate with other schools in order to offer a wider range of course choices (burgess, 1990). nevertheless, it clearly suggests that from the outset “single-sex” is not a term that implies complete coherence or correspondence in terms of students’ gender. [16: although many girls’ schools no longer subscribe to a religious ethos, they nevertheless provide an important resource for those whose religious beliefs mandate an element of gender-based segregation in everyday life (halstead, 1991).] [17: see schedule 11 and s.1(3) equality act 2010.] the state of the law to shed light on recent debates around challenges to gender-based rules, it is worth considering the prevailing legal requirements and duties on the basis of which these decisions are being made. the existence of single-sex schools, while of course de facto discrimination against one sex, is expressly permitted under the equality act.[footnoteref:18] in contrast, mixed-sex schools that segregate pupils by sex entirely, rather than only for specific activities like p.e.,[footnoteref:19] are in violation of the equality act’s prohibition against sex discrimination.[footnoteref:20] overall, the equality act does not prevent single-sex schools from making accommodations for the inclusion of trans and non-binary pupils, regardless of whether their sex at birth aligns with a school’s single-sex status. specifically, s.7 of the equality act protects people from discrimination if they have the protected characteristic of “gender reassignment”, and therefore it effectively prohibits discrimination against trans people and arguably also non-binary people.[footnoteref:21] section 7 is framed significantly wider than the gender recognition act 2004 (gra), which allows for a formal change of a person’s legal gender status.[footnoteref:22] this is because s.7 covers all trans people regardless of their legal status (whereas the gra at present requires a medical diagnosis), particularly when read in combination with the official explanatory notes to the equality act. this means that in principle students who want to use a new name, wear differently gendered clothes or ask for a new pronoun to be used are protected from discrimination under the equality act, regardless of whether they have, or want to have, any medical treatment or legal change to their gender. this does not mean that single-sex schools have to automatically include trans or non-binary pupils. schedule 3 para. 28 expressly allows the exclusion of people who have undergone, are undergoing or want to undergo gender reassignment from single-sex services and accommodation. any single-sex school seeking to rely on this provision would have to show that this is a proportionate means of achieving a legitimate aim, which may be difficult, yet possible, in practice. further, state schools must also take account of individuals with the characteristic of “gender reassignment” when considering their responsibilities under the public sector equality duty contained in s.149 of the equality act. this duty asks schools to “have due regard to” equality by thinking about their practice and possibly changing it in relation to the characteristics protected by the equality act (fredman, 2011). [18: see schedule 11 para. 1 equality act 2010.] [19: see s.195 equality act 2010.] [20: see hm chief inspector of education, children’s services and skills v the interim executive board of al-hijrah school [2017] ewca civ 1426. ] [21: a recent employment tribunal case found that non-binary and gender-fluid people are also covered by the protected characteristic of gender reassignment in the equality act (bowcott, 2020) although this is not a binding decision.] [22: the gender recognition act only has very limited relevance in the context of secondary education as only those over 18 can change their legal sex as recorded on their birth certificate. this is further complicated by the medical evidence required for an application under the gender recognition act (renz, 2017), which in practice will make it near impossible for anyone to legally change their sex while still in secondary education. ] although the legal position of trans and non-binary pupils in single-sex schools is not entirely clear cut and has been subject to some contestation, given the increasing prevalence of students identifying as trans or non-binary at an early age it should perhaps not be surprising that schools are increasingly making efforts to better include trans, non-binary and gender non-conforming pupils (paechter, 2020; powys maurice, 2019). part of the challenge of a prefigurative law reform project is that its objective is not to carry out a socio-legal analysis of what is happening right now with regard to specific legal provisions; rather, it is to discuss what might be the case if the law were to change in a way that removes individuals’ legal gender status. based on current legal, policy and social developments one might assume that any future changes to legal gender status would make little difference to current moves toward a more diverse understanding of what it means to be a single-sex school through the inclusion of trans and non-binary pupils. however, these current developments raise important questions regarding the role of values and principles in making changes to school rules and policies. namely, what kinds of educational, moral and normative principles come to the fore when school leaders have to decide whether and how to accommodate trans and non-binary students, for instance are decisions made on the basis of ensuring consistency or an ideal of inclusivity? on what basis are changes made or rejected? what are the effects of such changes on the character or role of single-sex schools? in concrete terms, attempts to include trans and non-binary pupils, generally initiated by headteachers or students, often focus on practical changes. for instance, a number of schools have changed their uniform policies, which often serve to most visibly police students’ gender expression (carlile, 2018), to allow students to wear traditionally gendered items like skirts or trousers regardless of their legal gender status. similarly, many schools allow students to go by their preferred name and pronouns, which may or may not match their legal documentation. in fact both these changes are now formally recommended by the national education union (2019).[footnoteref:23] beyond this, schools also increasingly allow students to access changing rooms and bathrooms in line with their gender even when this does not correspond to their sex as registered on their birth certificate. as one interviewee noted, it was possible for girls’ schools to accommodate pupils who do not identify as female: [23: the national education union is the largest union for secondary and further education teachers in the uk.] “but it's to do with what provision can be made. our toilets are all cubicles, so i wouldn't actually see that as an issue. but obviously we have also got male toilets. in fact, we are creating more [male toilets], because of the partnership work that we are doing. from a facility point of view, that is not an issue.” however, other types of administrative changes, like changing a student’s name on official documentation, especially for exam results, are often more complex and slower to be implemented, if they are possible at all. in fact one interviewee expressed significant regret at their inability to change a student’s name and title on final exam results, which they perceived as having had a significant negative impact on the student when they moved on to a higher education setting. this difficulty is at least partially due to the centralised nature of many school exams, with schools having limited discretion on how to handle such issues. schools also have limited capacity to help students navigate more formal changes. as the interviewee mentioned, “if there are things that we have to do to support individuals, and individuals are moving their identity in a way that was legally [recognised] or related to legal official documents, that would be very difficult to manage, i think”. as such, while some schools may seek to be inclusive of students with different gender identities, external legal and policy frameworks may limit these efforts, not least when students transition out of the school environment. it should also be noted that there might overall still be a greater tendency to introduce changes that tend towards male as a “default” option or define gender neutrality in male terms. for instance, there seems to be a more frequent emphasis on treating trousers as a gender-neutral clothing option than skirts. some emerging reporting suggests that, even if changes are made to allow the wearing of a diverse range of gendered clothing, the uptake for feminine clothing tends to be low (see, e.g. ferguson, 2017). as such, gender-neutral uniform policies may be subject to similar critiques as other formal equality type policies more broadly (see, e.g. conaghan, 2013: 77-80), in that they may mask rather than alleviate systemic inequality. this raises the question of whether such changes actually challenge wider gender norms or whether they simply reify wider power structures (for a more detailed discussion of this concern see cooper, this issue). further, the introduction of such changes is generally aimed solely or primarily at accommodating trans pupils rather than benefiting all students, effectively limiting the potential of such changes for a more radical transformation of school-based gender rules and norms. while most of the existing inclusion efforts have been made on an individual school basis, more recently there has been an emergence of wider policy-level changes at national level. as of summer 2020 the ehrc is in the process of preparing new guidance for schools that focuses specifically on trans inclusion. the currently available draft guidance only covers scotland, but is likely to be followed in due course by matching guidance for england and wales (equality and human rights commission, 2019). the guidance notes that making accommodations for trans pupils can help to combat “gender stereotypes” while also characterising gender primarily as a matter of one’s “sense of self” (equality and human rights commission, 2019: 4), rather than, for instance, as a set of social norms, something that has a relational dimension or part of an uneven distribution of power and resources within society.[footnoteref:24] on a practical level the guidance highlights that trans pupils should be treated according to their self-identified gender rather than their sex assigned at birth, including in contexts such as school sports (equality and human rights commission, 2019: 10). regarding single-sex schools the guidance specifically notes that under the equality act trans pupils who are applying to a new school cannot be prevented from attending a single-sex school that does not align with their sex assigned at birth due to their transition, while at the same time single-sex schools cannot exclude a student who transitions after being admitted on the basis of their transition (equality and human rights commission, 2019: 32). this would suggest that the exemption under the equality act that allows single-sex services to exclude people with the protected characteristic of “gender reassignment” under this guidance is not envisaged to cover single-sex schools and therefore a trans girl should not be prevented from attending a girls’ school on the basis that she is trans, although of course other types of admissions criteria, such as grades or religious affiliation, are still permissible. consequently a number of lobby groups (women and girls in scotland, 2019; transgender trend, 2019) have expressed strong opposition to the draft ehrc guidance, particularly in the context of single-sex schools and single-sex spaces within mixed schools. they have also lobbied against the use of other types of trans-inclusion programmes that have been funded by the department for education, including educate & celebrate (2019) and stonewall resources for lgbt inclusion in schools (2019). this opposition is framed primarily around the concept of “safeguarding” girls (a term that here seems to exclude young trans people) who are perceived to be at risk due to trans inclusion efforts (see, e.g. transgender trend, 2019: 10-11).[footnoteref:25] [24: for a discussion of sex and gender in other policy contexts see also cooper (this issue).] [25: clashes around this particular issue are by no means limited to the uk, but rather seem to be playing out in a number of countries along similar lines of division (herriot et al., 2018; cumming-potvin and martino, 2018).] at their core some of these disputes about trans inclusion within schools are about differing and often conflicting understandings of gender as a concept. while some policies, including the new ehrc guidance, portray gender primarily as a form of self-expression that should be accommodated and protected where possible, others see gender primarily as a set of oppressive norms targeting women in particular (cooper, 2019). while overall there seems to be a trend towards the inclusion of trans and non-binary pupils, it seems likely that existing disputes are not going to be resolved any time soon and may even intensify should gender no longer be legally certified. how then do schools negotiate and justify inclusion efforts while navigating this contested terrain? community values in tackling questions of how to accommodate pupils who may identify as trans or non-binary some common values and decision making processes come to the fore in relation to how schools create or change their policies in this area. firstly, what becomes apparent in speaking to people in charge of setting school policies around gender or those involved in reform efforts is the crucial role the concept of a school “community” plays in setting these policies. as one current headteacher highlighted: “my values are to work pastorally with everybody who becomes a part of my community, to secure the best for them as an individual. and once they have come in through my door, the rest doesn't matter, really, it’s all part of community behaviours and it's all part of about how we can support you and what we can do for you. it isn't really anything to do with … i don't know … it’s certainly very open and inclusive.” as the quote above illustrates, it certainly is not straightforward for those involved in decision-making processes to always articulate precisely what they have in mind when centring the idea of a “community”. discussions around “community” often focused on the idea of prioritising the need to create a cohesive, but also diverse, community or a community that could provide a positive environment for students to be in. while there is potential for “community” as a concept to be exclusionary as it can reify homogeneity and prioritise dominant norms (westheimer and kahne, 1993), for some schools at least “community” seems to frequently link to an ethos of inclusivity.[footnoteref:26] [26: what emerged perhaps less clearly from these interviews is the issue highlighted by quinan (this issue), of whether trans and non-binary students themselves actually felt part of these communities.] although interviewees emphasised the importance of maintaining a cohesive community with ideally minimal conflict between students, this was not equated to allowing the existing community to determine rules of inclusion/exclusion. for instance one interviewee recounted how she had dealt with a student transitioning: “the most powerful thing … because i was working very closely with the head of the other school at the time … was to say, ‘this is something that we can't pretend this doesn't happen. we can't pretend that this is something that … you know, we can't just ignore it, because actually, in terms of mental health and wellbeing of individuals, if we profess to be a welcoming, diverse, supportive community, we can't just pretend that this isn't part of it’. so that is how we dealt with that. and we did have kick-back from some families. i did have a couple of representations from families who were very unhappy about the fact that they had not been communicated with about this individual.” instead of using dissent from parents and caregivers as a reason to reject an application from a trans student who wanted to join the school, those crossing gender boundaries in this instance are perceived as being an inherent part of the community, even as new students, and therefore are accorded the same rights and privileges as other community members. as such the decision is approached from the point of view of the individual who then in turn is part of the wider community. this was echoed by another interviewee who noted that even if a student transitions to a gender that technically does not align with a school’s single-sex ethos, they continue to belong to the school community. as such an overall policy or consensus on this issue seems to be somewhat less important than ensuring students felt valued within their school environment/ community. this appeal to “community” seems to have some precedent in previous efforts to broaden the pupil base of schools. russell (1993) notes a similar use of “community” as a reason for inclusion rather than exclusion in the context of schools that changed from single-sex to mixed-sex in the 1990s. however, this seems to be taking place against a background of wider moves towards harsher forms of sanctions, up to and including exclusion from school, that constrain who is seen as a member of a school in ways that may (re-)enforce dominant classist and racist frameworks (see, e.g. carlile, 2012). although more research is needed on this (see, paechter, 2020) it seems likely that the experiences of trans and non-binary pupils in secondary education also intersect in both positive and negative ways with existing structural relations of power that underpin the working of measures intended to shape school discipline and community (carlile, 2018). in their decisions around who should form part of a school community, schools are of course bound both by the legal requirements of the equality act, as well as the policies produced by the department for education and by regulatory bodies like ofsted. beyond these official frameworks, there seems to be some resistance to creating internal policies that provide a clear statement of how the school defines its single-sex status, e.g. whether this includes only cisgender students or also includes trans or non-binary students, or to providing general guidelines on the inclusion or accommodation (or the decision not to offer either) of trans and non-binary pupils. schools often create their own equalities policies, however. in contrast to legal documents, these are framed in fairly loose terms and include less boundary setting than one would find in an equivalent legal document, where key terms are often defined as precisely as possible. for instance, camden school for girls in north london, which was founded in 1871 and is now a girls’ comprehensive school, has a detailed equalities policy that covers all aspects of school governance both inside and outside the classroom.[footnoteref:27] while this policy addresses both gender equality more broadly and the inclusion of trans staff and students (the camden school for girls, 2017: 11), the policy never addresses how its various categories are defined and constructed. the reasoning behind this gap is often that schools would rather make decisions on a case-by-case or informal basis, partly in an effort to align with the importance placed on inclusivity and community. as expressed by one interviewee from a different single-sex school: “[…] rather than a policy, i think policies can be one size fits all and that's dangerous … so we had … it was more of a statement of intent”. this in turn allows for a greater degree of creativity and personalisation that is rarely possible within a formal legal or policy framework. [27: the materials referred to here are publicly available via the school’s website and have been chosen for illustrative purposes of a wider trend, rather than to indicate that this school was included in the fieldwork carried out for this project.] a desire for individual discretion and an avoidance of more formal “law-like” structures may also be related to a wider view of law as something that imposes additional demands and can be overly constraining (cooper, 1995: 512). however, this also means that it is easy for de facto unwritten policies to exist alongside both official legal requirements and internal school policies. this may of course be beneficial in the sense that it allows for creativity and discretion, but also raises concerns about transparency, accountability and consistency (maynard-moody and musheno, 2000). as maynard-moody and musheno (2000) suggest in their study of street-level decision making, decisions that are made at a lower level tend to be made based on beliefs and norms regarding fairness. such beliefs and norms are “shadowy, never fully articulated, and often inconsistent”. this is not to say that decisions made on such a basis are not “reasonable and defensible” (maynard-moody and musheno, 2000: 333) or indeed that decision making on the basis of a formalised, written policy is inherently more beneficial than one that is based on norms, but rather that in such instances the decision making process becomes harder to trace and account for. however, it may be possible to account for some of these norms by asking about the decisions that were made in practice, rather than the policies on which they are based (maynard-moody and musheno, 2012). on a further level, these decisions are of course still shaped by the base line equality framework set out in the equality act, which although not necessarily explicitly referenced, does shape and constrain the scope of individual discretion available in each case, which all interviewees referenced at some point. as a result even the interviewee who argued that specific equalities policies could be “dangerous” due to the limitations they impose acknowledged that their decision-making was at least partially informed by some of the available official guidance, even if this generally functioned as a minimum standard rather than as a standard schools were striving to achieve. proliferating genders and proliferating modes of recognition a key point that directly emerges from the issue of various layers of policy, both written and unwritten and co-existing at the same time, relates to the question to what extent the existence of institutional policies can be read as a form of legal pluralism. while the schools involved in this research project rely on the existing legal framework as they understand it and require certain types of legal documents like birth certificates for admission in the first place, it seems that once a student becomes part of the school community, the schools’ own formal and informal policies are likely to carry greater regulatory value and relevance than external legal rules. in this sense then, schools may function as a separate “jurisdiction” in mariana valverde’s sense (2009), in that they are sites for potential struggle and conflict over authority and governance. this becomes particularly apparent in instances where there are conflicts over a school’s decision to define its individual character or ethos through admissions criteria. although there have yet to be legal disputes about a school’s admissions criteria regarding gender, there have been disputes about definitions of other identity characteristics such as religion (see, e.g. the discussion of the jfs case in cooper and renz, 2016: 498-499). it may be that if gender becomes more like religion, i.e. a characteristic that is protected by law but not legally “certified” through the granting of a formal legal status to individuals, there will be an emergence of more acute boundary disputes. in principle even if legal gender status were to become decertified this would not seem to affect the operation of the equality act as it currently stands in the context of single-sex services. this is because while the equality act uses the term “sex” this is not explicitly linked to one’s formal legal status and no formal legal documentation of this status has ever been required to bring a case under this provision. therefore it would be possible that if sex were to be decertified the protected characteristic of “sex” under the equality act would rely solely on self-identification, similar to some other protected characteristics under the equality act like ethnicity and sexual orientation. as such, decertification may lead to an increase of appeals to the courts to intervene in disputes about sex/gender-based admissions criteria used by organisations like single-sex schools or women’s services. although there have been relatively few legal challenges based on other self-identified categories under the equality act, this may be due to the fact that unlike gender, ethnicity and sexuality are less commonly used to govern access to specific resources like schooling. currently schools’ institutional policies, both informal and formal, often exceed legal requirements, for instance some girls’ schools already accommodate trans boys, trans girls and non-binary students without seeing this as a challenge to their ethos of being a (cis) girls’ school. this suggests a far more flexible and situational reading of sex/gender than is currently being accommodated in law. however, it also seems to be important here to be attentive to the foundational role of both class and ethnicity in the english schooling system, and particularly in the context of single-sex education (goodman, 2005; ali, 2003), and the ways in which some types of schools, perhaps due to the student body they attract, may be or appear to be more or less encouraging of different types of gender expression or student autonomy in regard to gender rules. as such, schools that see themselves as serving a primarily middleor upper-class student (and parent) body may be more likely to take up a neoliberal, rights-based understanding of gender as primarily an individual identity that should be recognised and protected (cooper, 2019), in line with what they perceive as the predominant values of their students. this seems to be supported by at least anecdotal evidence (powys maurice, 2019) that suggests that schools with a more affluent student body, which are disproportionally private schools, are increasingly open about their efforts to include trans and non-binary pupils. [footnoteref:28] such inclusion efforts may in these instances serve as an additional marker of what constitutes a “good” or “elite” school and thereby distinguish them from other schools which implicitly are portrayed as less progressive. in contrast, schools which do not perceive such an approach as being in line with the beliefs of the majority of their students or their parents may be more hesitant to exceed the base-line standards set out by the equality act.[footnoteref:29] as such, “inclusion” may serve a similar function to the “civilising” discourse of lgbt rights, which is now increasingly used by some western states to distinguish themselves from, and establish superiority over, supposedly less “civilised” others (duggan, 2003; puar, 2013; 2007). [28: although fee-paying schools are not subject to the public sector equality duty, they are nevertheless bound by anti-discrimination provisions in the equality act in the same way as other schools (equality and human rights commission, 2012).] [29: the recent controversy about lgbt education at a school in birmingham (parveen, 2019) may provide a particularly stark illustration of what happens when there is a mismatch between the values advocated by a school and those of at least a significant proportion of parents.] of course this may mean that students will concurrently or at a later date be confronted with other, more law-based regulatory frameworks. in particular, many higher education institutions still highlight the fact that law defines sex as purely binary and have limited capacity for allowing students (and staff) to use different pronouns or names (see, e.g. storrie and rohleder, 2018).[footnoteref:30] although this is generally an issue of individual institutional policies rather than any potential limitations of the existing legal framework,,[footnoteref:31] there seems to be a greater willingness on the part of secondary education providers, compared to higher education providers, to go beyond the minimum standards for inclusion as set out by the equality act. this divergence between approaches to setting gender boundaries could potentially be exacerbated in the future, if, without a legal gender status, institutions are given more freedom to set their own policies. at present, many schools already seem to be operating a more diverse system of gender recognition than the one represented by the prevailing binary legal recognition options (cooper and emerton, this issue). in this sense schools may be filling a gap in the law by offering at least limited recognition and protection for those with otherwise not officially recognised gender identities, which are still frequently subject to contestation (clarke, 2019; boukli and renz, 2018). while such an approach is of course to be welcomed, it may also raise further questions about why schools in particular are taking up a more expansive understanding of gender in this context, compared to institutions in other fields. perhaps this is due to pressure from younger people themselves, at a time when emerging research is indicating that younger people often have an expansive, fluid understanding of gender (bragg et al., 2018; peel and newman, this issue), but it may also be that some schools at least,[footnoteref:32] due to their emphasis on allowing students to explore and develop their identities, are taking a less ‘rigid’ approach to gender compared to institutions focusing primarily on adults. [30: for more information about this, see the research discussed by fraser (this issue).] [31: the notable exception to this is record keeping related to hmrc data, as in this context a change of gender is only possible through a gender recognition certificate regardless of any other institutional policies: ‘tell hmrc about a change to your personal details’, https://www.gov.uk/tell-hmrc-change-of-details/gender-change, accessed 8 november 2016.] [32: this is not to suggest that all schools take such an approach, as many schools, and many educational practices, have contributed to a rigid and binary understanding of sex/gender and continue to do so in the present day (callahan and nicholas, 2019).] notably it seems that, at least anecdotally, girls’ schools appear to be significantly more accommodating of varied modes of gendered existence, certainly more so than boys’ schools, but also perhaps surprisingly more so than mixed-sex schools. in theory mixed-sex schools would seem to be the more likely space for accommodating students regardless of their gender identity as they are already accommodating at least two genders. conversely it may be that girls’ schools, which frequently, although not always, follow an ethos of empowering girls, already have a less binary and more critical approach to gender. there is of course also a long, and admittedly often contested, history of women’s spaces accommodating a varied range of gendered identities including trans men (travers, 2006; travers and deri, 2011; browne, 2011). therefore, perhaps the more inclusive approach of girls’ schools simply follows this historical trajectory, as spaces that are officially defined as single gender may conversely allow greater freedom from gender binaries without an opposite “other” to serve as an explicit boundary of gender norms. this is not to say that women’s spaces are generally more inclusionary in regards to gender;[footnoteref:33] in fact michigan womyn’s music festival is often used as a key example of exclusionary practices targeting trans women (halberstam, 2005; quinan, this issue). while women’s separatist spaces are frequently seen as extreme examples of exclusion, they may also hint at a need to think more critically about and beyond the inclusion/exclusion binary. browne (2009) for instance argues for a more attentive reading of separatist practices and the often shifting and “porous boundaries” they create in seeking to distinguish themselves from a hostile outside world. along similar lines douthirt cohen (2012) traces the transformation of a women-only educational organisation that was initially based on sex assigned at birth to one that prioritises self-identification and includes trans and gender non-conforming students. douthirt cohen notes that despite its diverse range of participants, the organisation continues to define itself as women-only, which involves an iterative processes of disagreement, consensus building and searching for shared values as an inherent part of creating and maintaining boundaries for group membership.[footnoteref:34] as such it seems important to focus on not just what rules and policies single-sex schools implement in order to maintain their status, but also how these rules are made, implemented and negotiated in day to day life. [33: it also seems important to remember that even if this particular approach produces more inclusionary results in regards to gender, the workings of other characteristics like race, class and disability are not generally considered in such efforts; and due to the fact that single-sex schools make up a fairly small percentage of comprehensive schools but a more significant proportion of selective or grammar schools and private schools (peck, 2020) a distribution that was also reflected in the schools represented as part of this research class in particular is often neglected (tsolidis and dobson, 2006).] [34: research about women-only spaces in other contexts also indicates that the mere exclusion of one gender from a specific space is unlikely to be sufficient to create a space that is perceived as a positive environment (see, e.g. lewis et al., 2015). rather, such spaces need to be attentive to the types of values, behaviour and interactions they choose to foster or repress.] finally, to return to an earlier point about the “cloistered ethos” of girls’ schools, there may also be something specific about the space, both literal and metaphorical, of such schools and the way gender and gendered values, interactions and education are staged (cooper, this issue) that contributes to the different and often more fluid approaches taken to gender here. if we read space not as a literal location, in which sense girls’ schools are often unremarkable and not easily separated from other schools, but rather as something that shapes and permeates both the existence and constitution of subjects (keenan, 2014: 150-151) then is there something about the ‘cloistered’ and therefore sheltered space of girls’ schools that enables a more challenging approach to gender? i recently found myself confronted with this question in my own life when it emerged during a panel discussion i was part of that all six of us panellists had in fact attended a girls’ school. notably, the majority of us did not identify as female, but we were nevertheless eager to compare our experiences of being part of a single-sex space for a significant part of our adolescences. while none of us had a particularly rosy recollection of our school years, there was nevertheless a clear consensus around the fact that we felt that attending a girls’ school had overall been beneficial and helped us develop our sense of confidence and outspokenness even if some of us had never, and others no longer, identified as “girls”. this then raises a related question, as single-sex schools, and particularly girls’ schools increasingly include other genders, whether the schools themselves are aware of this or not, does this then mean that being part of a girls’ school is something that can be taken up by other bodies, including male ones? further, if we understand spaces as shaping the people within them, it seems that girls’ schools produce girls’ school students regardless of their actual gender. are “girls” even necessary to being a girls’ school? is this a question of quantity, where a certain number of girls is required to maintain the character of the school? or can a school be a “girls’ school” without girls as this label is really a signifier of a particular educational or a type of feminist or even feminine ethos as outlined above? more fundamentally, although a diverse approach to gender in girls’ schools can be read as positive, we may also seek to challenge why this approach seems more prominent in girls’ schools than boys’ schools.[footnoteref:35] if this type of disruption of gender norms or boundaries only takes place within very narrow and specific spaces, then are the same norms and boundaries left unchallenged in other contexts? it seems likely that a more fundamental change to existing legal gender status would also need to engage more broadly with how institutions and public spaces continue to define and set gender boundaries in order to have a truly transformative effect. 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(2019) consultation responses ehrc guidance response from women and girls in scotland. available at: https://wgscotland.org.uk/consultation-responses/. _____________________________________________________________________________________________________ 26 _____________________________________________________________________________________________________ 25 natalie ohana the archaeology of the court’s domestic violence discourse __________________________________________________________________________________ feminists@law vol 9, no 2 (2020) __________________________________________________________________________________ the archaeology of the courts’ domestic violence discourse: discourse as a knowledge-sustaining system natalie ohana[footnoteref:1]* [1: * lecturer, law school, university of exeter, uk. email n.ohana@exeter.ac.uk ] abstract in the last several years, the harm of coercive control has been increasingly acknowledged as a domestic violence harm by the england and wales legal system. in this process of growing acknowledgement of the harm it inflicts in intimate relationships, coercive control is being inserted into existing discourses around domestic violence. the article examines the impact of a discourse on the understanding of a harm: how can the understanding of coercive control be impacted by the structure of the discourse into which it is inserted? the courts’ civil domestic violence discourse in england and wales and its potential impact on the understanding of coercive control is examined as a case study. using critical theory which links knowledge to social power as an analytical lens, the discourse is seen as not only founded upon a harm that is entirely detached from women’s experiences but also as a knowledge-sustaining system, operating on an everyday basis to protect and to further strengthen that alienated knowledge. through its knowledge-sustaining operation, the discourse prevents a meaningful change in the legal understanding of domestic violence, a change that is required for coercive control to be integrated into the discourse in a way that will reflect its essence and severity. introduction in the last few years, the legal system in england and wales has begun to acknowledge coercive control as a harm. the main landmarks include being referred to by the supreme court as the “classic case of domestic abuse” (yemshaw v hounslow [2011] uksc 3) and its criminalisation through the passage of section 76 of the serious crimes act, 2015. in this process of naming and acknowledgement, coercive control is, perhaps inevitably, being integrated into existing discourses around domestic violence, since it is a harm which is inflicted in intimate relationships. yet it is crucial to bear in mind that the discourse into which a harm is inserted can have an effect on the understanding of that harm. i examine the impact of the domestic violence discourse on the understanding of coercive control. i approach my examination acknowledging that discourses are developed and shaped in accordance with social power relations (foucault, 2005). my aim is to understand the structure of the discourse and the rules of knowledge production it had developed over the years in order to examine how these can shape and impact the way the recently inserted harm of coercive control is understood. to be able to do that, i analyse a corpus of judgments that were given in england and wales from 1976 until 2019 in civil proceedings surrounding domestic violence. a discourse is both a site in which knowledge is produced and a system that produces knowledge (foucault, 1980). knowledge accepted by society is a mirror that reflects power relations: it is only when an individual is a participating subject in her society that her history, reality and standpoint can be reflected in society’s accepted knowledge. equally, unnamed, unacknowledged and not-understood trauma or harms reflect social marginalisation (foucault, 2003). knowledge is not only a reflection of power relations, it also actively operates to sustain them and to prevent their change. it is this relationship between power and knowledge that makes the discourse a political system of prime importance. the common image and perception of discourse as apolitical in its essence serves to further strengthen its political effects. in my examination of the domestic violence discourse in the case law, i locate the power/knowledge nexus at the centre, pointing to the structure of the discourse and linking it to questions of social power and agency. to make that connection i use critical theory that links knowledge and social power. i concentrate on theory which points to a core dynamic that directs the course of discourse-development: the dynamic between a-priori knowledge – knowledge that pre-existed the discourse and upon which the discourse was formed and developed, and the everyday operations of discourse. i examine the a-priori/everyday dynamic in judgments given in england and wales in civil proceedings from 1976 until 2019. 1976 is the year that marks an emerging domestic violence discourse in courts in england and wales. it is the year of the passage of the domestic violence and matrimonial proceedings act, an act that was an outcome of a long campaign by the women’s movement in the uk. the link between the legislation and the campaign represented the beginning of a shift in social perceptions of domestic violence, one that started to acknowledge its socio-political bases (gordon, 1988, pg. 251; wandor, 1990). such changing social attitudes had to be reflected in the courts’ approach. by reading judgments from the early years after the passage of the act, i was able to see the a-priori knowledge of the discourse, the first element of the dynamic: knowledge that pre-existed the discourse, the old discourse’s legacy for the new one. i read the cases that followed this period of time to see the everyday acts of the discourse, whether it operates to sustain the a-priori knowledge or to enable its change. i then focus on a judgment given by the uk supreme court in 2011, yemshaw v hounslow [2011] uksc 3 (hereinafter: “yemshaw v hounslow”), a judgment which marks a change in the courts’ understanding of domestic violence. the court’s activist approach in that judgment and willingness to change accepted meanings, makes it a particularly apt site from which to examine whether the structure of the discourse and the rules of knowledge production it entails, determines the extent of change that can take place. i then continue to see whether the change presented in yemshaw v hounslow is reflected in the judgments given in recent years. i ask whether the discourse has ‘rules of its own’ which can direct and monitor the accepted legal knowledge in a way that poses limitations on the understanding of coercive control. the article takes the following structure: it starts with a summary of the characteristics of coercive control. seeing these main features is necessary in order to assess the adaptability of the discourse to this harm. in the part that follows i set the a-priori/everyday dynamic as the theoretical lens through which to examine the development of the discourse. in the third part i identify the a-priori/everyday dynamic within the case law. i conclude by analysing the impact of the discourse on the supreme court’s yemshaw v hounslow decision and on judgments given in recent years. i coercive control women’s accounts of their experiences of coercive control started to accumulate at the beginning of the 1980s, approximately 10 years after domestic violence began to be recognised socially and legally, leading to the development of a multidisciplinary body of knowledge around domestic violence spanning over four decades. already at the beginning of the 1980s it became clear that the dominant understanding of the harm of domestic violence does not capture the harm of coercive control. whereas according to the dominant understanding domestic violence was mainly outbursts of physical violence or seen as separate incidents of harmful behaviour, coercive control was an entirely different phenomenon which could not be understood according to these lines. coercive control is a term which describes a pattern of behaviours used by one partner, the perpetrator, with the aim of creating in the other partner a state of captivity: a sense of entrapment and being unable to flee from the relationship (herman, 2015; stark, 2009). even though it occurs in the context of intimate relationships, it shares its core features with harms of captivity which take place in political contexts, such as being held as a hostage or imprisoned in a concentration camp. the essence, characteristics, and severity of coercive control can be best understood when it is seen as a harm that by its nature is located within the family of captivity-related harms, in both intimate and non-intimate contexts (herman, 2015). outwardly, there seems to be a significant difference between these contexts: political captivity begins by a single act of abduction or imprisonment whereas intimate captivity is achieved gradually, over a period of time. however, the most severe harm that is inflicted in a state of captivity is when the captive is being held over a period of time and gradually internalises the tyranny into their psyche: when she or he perceives themselves and the world around them through the captor’s eyes. accounts given by victims of coercive control and by political captives reveal a striking similarity not only in how the harm of captivity is experienced but also in the tyrannical methods used by perpetrators in both contexts (herman, 2015). according to common social perceptions, captives are imprisoned in secluded spaces, being prevented from escape by the use of physical barriers. in the intimate context, the physical barriers, even though used more often than might be thought (herman, 2015), are replaced by social norms which normalise relations of dependence and oppression between the tyrant and the captive. this explains why coercive control is a gendered harm: it is inflicted mainly by men on women in intimate relationships. the social conditions that enable the existence of coercive control are the deeply engrained patriarchal norms which foster and normalise the social dependence of women on men. this creates the dangerous situation by which a woman who is subjected to coercive control might sense from the society she is part of that her reality is perceived as normal. the main features that characterise coercive control in an intimate relationship therefore are: a systematic and repetitive pattern of behaviours inflicted constantly and covering all aspects of the woman’s life; it exists with or without the use of physical violence, but importantly physical violence is not required in order to achieve a state of captivity because that sense can be achieved by the use of other techniques (johnson, 1995); to an external observer, some of the behaviours would not seem harmful in and of themselves: the harm of captivity can only be seen when the pattern that connects all forms of behaviour is realised (stark. 2009); coercive control is a central indication of a life-threatening situation – it is the most relevant factor in risk assessments predicting whether the perpetrator poses a threat to the woman’s life; and finally, like other forms of tyranny, the pattern of behaviours is aimed at three objectives: intimidation, isolation and control over bodily autonomy. behaviours aimed at intimidation seek to create a constant state of fear through the establishment of a continual threat of death or of serious harm to the partner or to one of her closest relatives. the perpetrator can use different tactics and not only physical violence to make the partner believe that he is capable of violence. behaviours aimed at isolation cut off the woman from any source of information, material aid or emotional and social support. control over the body’s most basic autonomy, the third objective, shames and demoralises her. it is through this continuous, repetitive, all-encompassing pattern of behaviours of instilling terror and helplessness, deprivation of resources, disconnection and disempowerment, that the partner can increasingly feel that she is losing her sense of self and gradually experience entrapment in the relationship. the characteristics of coercive control outlined in this part show that it is a harm which is entirely different from episodic violence. episodic violence does exist. we can see it in the street when a conflict escalates and that same type of violence can be manifested in the family and in relationships as well. however, coercive control and episodic violence are “nearly nonoverlapping phenomenon” (johnson, 1985, pg. 286). the difficulty arises because coercive control is now included in discourses dominated by the episodic violence meaning, even though they do not resemble each other. this means that the existence and severity of coercive control and the danger it poses are assessed through a set of tools designed to assess an entirely different phenomenon. coercive control should be understood through tools relevant to its essence, for example, by assessing behaviours aimed at isolation, intimidation and control over bodily autonomy, the three main characteristics of the harm discussed above. this means that the first task in any domestic violence situation is to ask whether the nature of the violence presented is one of coercive control or of episodic violence. this distinction can be made by assessing whether there is evidence of isolation, intimidation and control over bodily autonomy. only after making the distinction, can decisions on effective responses can be made. with this characterisation of coercive control in mind, i turn now to the theoretical lens within which i analyse the development and structure of discourse – the dynamic between a-priori knowledge and everyday acts of discourse. this discussion will introduce my examination of whether or not domestic violence discourse can accommodate the harm of coercive control. ii(1) the a-priori/everyday dynamic theories on the relationship between knowledge and social power point, in different conceptual ways, to a dynamic which is at the core of knowledge production: the dynamic between a-priori knowledge and everyday acts of communication and expression of meaning. the a-priori is the set of internalised norms, values and perceptions embedded deeply into the psyche and the everyday is the visible layer which comprises the means by which meaning is produced and communicated, such as the different uses of language, visual representation, practices and bodily appearance. irigaray, butler and bourdieu conceptualise this dynamic in different ways. in irigaray’s writing, the dynamic appears in the relationship between the invisible and visible layers of representation. the invisible layer is where categories of perception and judgment reside, whereas the visible layer includes the everyday mediums by which we express meaning, mainly the medium of language, irigaray’s main site of research. in butler’s thought, the dynamic is conceptualised as a relationship between embedded power structures on the one hand (such as phallogocentrism and heteronormativity), and performance on the other, which includes thought, behaviour, language and appearance. bourdieu represents this foundational relationship through the term ‘habitus’, using the term to describe the merger between the two layers. habitus is the interaction between the internalised layer and the everyday layer: the set of models, thought-patterns, dispositions, and taste that is structured within the mind and by which people act in the world. each theorist characterised the type of relationship between the a-priori and the everyday in a different way. i explore each way separately since each is relevant to the analysis of the judgments that will follow. irigaray perceives the internalised layer as entirely governing the everyday layer. she sees the everyday layer as a reflection of the internalised one. the internalised layer creates the rules of what is possible in everyday life and determines in which way objects, subjects and phenomena can be named and understood. accordingly, she argues that language – a central everyday tool – cannot serve to define certain identities or social phenomena because it is shaped according to the barriers to representation positioned by the invisible layer. for her, the link between the invisible layer and language, its outward manifestation, should be identified and then dismantled in order for language to become a relevant and effective tool for making invisible realities visible (irigaray, 1991). in my reading of irigaray i identify an emphasis on the invisible layer in processes of social change. for a process of social change to occur, the invisible layer should be dismantled. it seems that according to irigaray, the invisible layer will be dismantled as a natural consequence of realising its violent effects. butler and bourdieu on the other hand do not perceive the everyday layer as entirely formed and shaped by the internalised layer. they see a dialectic relationship between them. as does irigary, butler perceives the internalised layer as the layer which determines the very thought of what is possible in life – the limited field of representation that we have for existence. however, unlike irigaray, she recognises that performative acts also hold a constructive power and are not completely bound by internalised structures. in their operation, performative acts are able to create new meanings or impact an accepted one, either by strengthening the accepted meaning or by challenging, disturbing or transforming it (butler 2002, 2006, 2013). an example of a performative act able to disturb internalised meanings in butler’s work is drag, troubling the neat constructed division between man and woman, un-stabilising the accepted meaning of the category gender and revealing its contingent and revisable nature. therefore, whereas irigaray emphasised the a-priori in processes of social change, butler puts more attention on the potential of the micro, performative, everyday acts. bourdieu perceives the internalised and the everyday as one entirety, the habitus, in which “two moments, the objectivist and the subjectivist, stand up in a dialectical relationship.” (bourdieu, 1985, pg. 15). the habitus represents the way by which the internalised framework directs thought and action and instils in the mind the sense of what is possible and what are the constraints and limitations of external reality: “a sense of what one can or cannot “permit oneself” implies a tacit acceptance of one’s place, a sense of limits (“that’s not for the likes of us”, etc), or, which amounts to the same thing, a sense of distances, to be marked and kept, respected or expected.” (bourdieu, 1985, pg. 729) habitus thus represents the understanding that a clear line cannot be drawn between the internalised and everyday layers. the internalised is formed by the accumulation of everyday life experiences while life experiences are shaped by the internalised dimension. habitus is specific to a social position, a product of shaped and always shaping everyday activities particular to the certain set of social conditions to which one is exposed and within which one lives. bourdieu perceives habitus as an interaction which is neither stable nor fixed and which leaves room for change to occur (dezalay and madsen, 2002). acknowledging that the two sides of the interaction cannot be clearly separated, bourdieu sees social change as an outcome of movements and shifts in the interaction itself. each of these different three focus points of irigaray, butler and bourdieu will serve me in the analysis of the judgments to examine the process of change of the legal understanding of domestic violence. irigaray’s, butler’s and bourdieu’s theories relate to the operation of the a-priori/everyday dynamic in any site of knowledge production. transmitted through the various acts of performance, knowledge is formless and can be spread limitlessly and endlessly, produced from moment to moment in all social locations (foucault, 1990). knowledge is produced through the use of words (whether internally through thought or externally through speech and writing) and through other mediums, such as bodily appearance, tone of voice, facial expressions and gestures, practices, artistic forms, expression through visual imagery etc. these are all sites of meaning-making in which the dynamic between the internalised and the everyday can be identified and examined. part of designing a methodology for a research project which analyses this dynamic is to choose a site of meaning-making on which to concentrate – a site in which the workings of the dynamics can be seen and analysed. the site of knowledge production i focus on is discourse – an organised framework and system of knowledge production. in the next part, i set the theoretical framework of the dynamics between the a-priori and the everyday specifically within discourse. ii(2) the a-priori/everyday dynamic within discourse foucault theorised the a-priori/everyday dynamic within discourse, the main site of his research projects (foucault, 2013). whereas the previous theories provided me with different focus points with which to identify the type of relationship between the a-priori and the everyday in judgments, foucault’s theory adds to the theoretical framework by providing actual tools with which to identify the a-priori and the everyday within the discourse. the a-priori knowledge within discourse is knowledge that pre-existed the discourse and upon which the discourse was founded (foucault, 2005). everyday acts can be seen through the discourse’s statements: written or spoken units which influence in their appearance the construction of knowledge (foucault, 2011). foucault sees the a-priori as “a condition of reality for statements” (foucault, 2011, pg.143) – it governs their appearance, disappearance and their acceptance as statements of truth. a-priori knowledge reflects a position of social power and domination; it is knowledge strong enough to become the foundation of a discourse and it receives the discourse’s protection. statements emerge, connect to each other, repeat or disappear in relation to their reflection of the a-priori knowledge. in turn, through their appearance and reiteration, statements safeguard, reinforce and strengthen the status of the a-priori knowledge as the foundation of discourse and operate to fix, normalise, legitimise and homogenise it. the channels for knowledge production created in the discourse – its epistemological routes – are set according to an a-priori/everyday dynamic. the channels are designed to produce knowledge of one form that conforms and is adapted to the a-priori foundation. the alignment of the channels available for knowledge production to the a-priori knowledge reassures that meanings which challenge or disrupt the accepted knowledge cannot be produced by the discourse (foucault, 2013). in the analysis of the judgments, i call these channels ‘mechanisms’ and show their role in safeguarding the a-priori knowledge. the ability of the discourse to produce knowledge which will challenge the a-priori foundation is significantly weakened by these processes of discourse formation directed by the aim of safeguarding a certain knowledge. in foucault’s words: “in every society, the production of discourse is at once controlled, selected, organised and redistributed by a certain number of procedures whose role is to ward off its powers and dangers, to gain mastery over its chance events, to evade its ponderous, formidable materiality.” (foucault, 1970, pg. 53) in their appearance, the statements reveal (1) the a-priori knowledge, (2) how the discourse works to safeguard it, and (3) signs of discontinuity (foucault, 1980. pg. 112) – signs of interruptions, breaks or transformations in the a-priori knowledge. to uncover the a-priori knowledge and the ways by which the discourse protects it, the following questions are asked: which speech is accepted without justification or controversy? which statements are often repeated? is it possible to identify patterns in the appearance of statements – can they be grouped? to find whether signs of discontinuity exist, it is not enough to identify statements which differ in their content from the a-priori knowledge. the question is whether these statements are isolated or are part of a group of statements that can challenge the a-priori knowledge. an isolated statement, which was not repeated but which disappeared after its appearance does not show a sign of discontinuity. through this type of discourse analysis, it becomes possible to identify knowledge of ‘high status’ – knowledge that despite not reflecting the reality of many, is shielded by the discourse, while reflective knowledge goes unnoticed: “(which rules determine that statements) do not withdraw at the same pace in time, but shine, as they were, like stars, some that seem close to us shining brightly from afar off, while others that are in fact close to us are already growing pale.” (foucault, 2011, pg. 146) having set up the theoretical framework with which to identify the a-priori and the everyday within a discourse, as well as to identify the type of relationship between them and how they operate to sustain knowledge or allow change to occur, i turn now to the analysis of the dynamic within the courts’ domestic violence discourse in england and wales. iii(1) the a-priori/everyday dynamic in the courts’ domestic violence discourse: selection of data the legal meaning of domestic violence is a socio-legal construct, constructed by different, legal and non-legal discourses. the courts’ discourse, whilst central to the processes of meaning construction, is not an isolated discourse but is shaped by and shapes discourses around it. legislation, case law and the parties’ arguments are among the elements that influence the courts’ discourse and understanding of domestic violence. these elements and surrounding discourses contributed to the creation of the courts’ a-priori knowledge, the knowledge accepted by courts as uncontroversial truth. this is a crucial point because once an uncontroversial meaning is established, the discourse, through everyday acts as explained in the theoretical part above, develops in alignment with it, influencing its solidity and monitoring the ability to change it. recognising the impact of this dynamic on the ability to change the legal meaning of domestic violence, i analysed cases to identify the a-priori and everyday acts in the courts’ domestic violence discourse. i searched for cases in england and wales from 1976 until 2019. i narrowed the search of cases to all areas of civil law, where courts, generally speaking, have more room for interpretation than in criminal law, and therefore are potentially more able to divert from a-priori knowledge. i was aware in my reading of the fact that different elements, such as legislation, precedents and parties’ arguments can bind courts’ interpretation in civil proceedings as well and took that into account in my assessment of statements in judgments, asking whether the court could have written these statements differently. i conducted two searches using the westlaw uk database. in the first search, i entered the key terms “domestic violence” and “women”. the purpose of using the term domestic violence in quotation marks was to filter the cases in which the courts perceived the circumstances of the case as the social phenomenon they term ‘domestic violence’. i added the word “women” for two reasons. firstly, this was done in order to filter the cases that discussed the issue of domestic violence against women and not other forms of violence in the family. secondly, by using the plural word ‘women’ and not the singular ‘partner’, ‘wife’ or ‘girlfriend’, i aimed to find the cases in which the courts connected the particular circumstances of the case to the broader social phenomenon of domestic violence against women. this search generated 452 cases. i searched within these judgments for the ones in which the judges presented their understanding of the meaning of domestic violence against women and in which they evaluated the severity of the violence. in the second search i used the terms “coercive control” and/or “coercive behaviour” and/or “controlling behaviour”, in conjunction with the terms “relationship” and/or “marriage” and in conjunction with the terms “wife” or “girlfriend” or “partner”. the objective of this search was to find all cases in which the courts granted any significance to controlling behaviour within a relationship. this search generated 132 cases. i searched within these judgments for the ones in which the judges presented their understanding of the significance of coercive control in a violent relationship and of the severity of this harm. these searches resulted in the final corpus of 250 judgments for analysis. i analysed these judgments to identify the a-priori knowledge, everyday acts of discourse and the dynamic between them. to identify the a-priori knowledge, i searched for statements in which the courts present the harm inflicted by the perpetrator in an uncontroversial manner. it reflects the courts’ perception that the knowledge presented is taken for granted and does not require justification or explanation. to identify the everyday layer, i looked at the ways by which the harm of domestic violence is presented to see the relationship between the a-priori and everyday acts. i also looked at common practices of knowledge production within the discourse and reflected on their role in sustaining the a-priori knowledge or enabling its change. iii(2) the a-priori knowledge in the courts’ domestic violence discourse i approached the judgments with awareness of the dominant meaning of domestic violence expressed by courts in england and wales which comprises two intertwined elements: first, violence is understood to be episodic by nature – a collection of separate harmful incidents, and second, physical injury is perceived as its most severe and dangerous manifestation (bishop, 2016). i aimed to see whether this dual-component meaning is in fact the discourse’s a-priori knowledge. understanding it to be a-priori knowledge will explain how this accepted knowledge is being strengthened and safeguarded by the discourse, which develops according to the very aim of protecting it. the a priori knowledge that informs the discourse presents itself clearly in the reading of the judgments. a domestic violence a-priori knowledge can be identified through three features: it pre-existed the discourse – was applied from the first judgments given after the 1976 legislation; it was assumed as axiomatic knowledge central to the discourse – the essence of what violence is – and was therefore located at the foundation of the discourse; and it was presented from the outset as obvious and taken for granted, without questioning or justifying its validity to intimate violence. the following is a good example of how a-priori knowledge was applied by courts. it is taken from a judgment given in 1978 by the court of appeal in relation to an application for an injunction under the domestic violence and matrimonial proceedings act, 1976: “in the last year or two the relationship between the parties has seriously deteriorated. there have undoubtedly been incidents of violence between them”. b v b (domestic violence: jurisdiction) [1978] fam. 26, pg. 31. despite being seemingly insignificant, the second sentence – “there have undoubtedly been incidents of violence between them” – is in fact a statement which represents the a-priori knowledge of the discourse: domestic violence is an episodic phenomenon, physical violence is seen as its core. following this statement, the court goes on to detail incidents of only physical violence, showing that the use of the word ‘violence’ must mean only physical violence. here we see the knowledge which pre-existed the discourse that started to form around the new legislation. the court felt no need to offer an explanation or justification for adopting this specific lens through which to express the harm it described, confirming that this lens is uncontroversial and will be seen as such by all potential readers of the judgment. by presenting this meaning of domestic violence in an uncontroversial manner, the existence of doubt or of other possibilities of understanding are obscured while the foundational knowledge is further strengthened and validated. one way by which the discourse operates to strengthen the a-priori is through the constant repetition of a-priori statements. each statement presenting the harm through the a-priori lens serves to strengthen the a-priori content and to further engrain its status as the foundation of discourse. repetitive statements express not only that violence is episodic and that its worst harm is physical, but also that understanding the harm this way represents a natural truth. these statements are often found in the background or introduction to the factual section of judgments, preceding the specification of incidents on the basis of which the judgments are given. the following is an example of a common repetitive statement taken from a social housing case. the court described the incidents as “a series of violent and brutal assaults” (r v broxbourne bc ex parte willmoth [1989] 22 hlr 118, pg 120) and it followed this statement with the specification of incidents of physical violence. the next example is taken from a civil injunction case: “that there were other incidents i have no doubt. that they were not of a level such as to justify medical intervention is a comment, but it is rightly said that the act does not become invoked only when there has been violence suffered by somebody to an extent necessary to call for medical intervention” (grant v james, court of appeal (civil division), unreported, 16 december 1992). in both examples, the court strengthens the a-priori knowledge by addressing violence as episodic and by focusing on the severity of incidents of physical violence. through not providing any explanation or justification for using this specific lens to describe the harm, the court acts to strengthen the perception that this understanding is obvious and free from doubt. it is through constant repetition that a-priori knowledge is strengthened and engrained (for example, in: davis v johnson [1978] 2 wlr 182; davis v johnson [1979] ac 264; lewis v lewis [1978] fam 60; r v london borough of ealing, lambert v london borough of ealing, r v wyre borough council [1981-82] 2 hlr 45; spencer v camacho [1984] 12 hlr 130; stannard v stannard, court of appeal (civil division), unreported, 28 november 1989; re o-s (children: care order) [2001] ewca civ 2039; re l (a child) (contact: domestic  violence), re v (a child), re m (a child), re h (children) [2001] fam 260; as (pakistan) v secretary of state for the home department [2007] ewca civ 703). statements that differ in their content from the a-priori knowledge exist but they did not form, in my view, a sign of discontinuity. they are sporadic and isolated and therefore could not be seen as belonging to a competing group of statements which is challenging the dominant one. an example is several statements in lord scarman’s judgment in davis v johnson [1979] ac 264, a house of lords appeal on the interpretation of the domestic violence and matrimonial proceedings act, 1976. lord scarman interpreted the harm of domestic violence against which the legislation was aimed to protect as: “conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. physical violence or the threat of it, is clearly within the mischief. but there is more than that. homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children. eviction – actual, attempted or threatened – is, therefore, within the mischief: likewise, conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home.” (pg. 348). these statements divert from the a-priori knowledge not because they show recognition of non-physical forms of violence but because they replace the a-priori lenses of episodes and physical violence with two different lenses through which to assess the violence: sense of security and intolerability to live in the home. even though these statements were written in a judgment given by the highest court of the uk at the time, and therefore potentially could have had a significant impact on the discourse, i found that they remained isolated in the discourse. for a sign of discontinuity to exist, there needs to be evidence of the competing meaning being part of a group of statements that exist alongside the dominant one and challenges it and that could not be found in the judgments analysed. a statement that could be grouped with lord scarman’s statement was written more than 30 years later by lady hale in yemshaw v hounslow as will be shown below. this taken-for-granted presentation represents in bourdieu’s theory a doxic relationship within the habitus. this is a situation in which a certain perception – in this example, the perception towards the meaning of intimate violence – is absorbed into the mind so deeply that it is perceived as a natural truth, existing beyond the realm of controversy or doubt. reaching a doxic state is the crucial element required for the continuation of a perception in its existing form and therefore it bears a political meaning: it is responsible for people’s reluctance to rebel against the status quo and fight for other possibilities (bourdieu, 1985, bourdieu and zanotti-karp 1968). interpreting domestic violence as bearing the single meaning of episodic violence and presenting that meaning as uncontroversial, acts to obscure the harm of coercive control. a concealed harm or a lack of discourse-tools with which to understand it create apt conditions in which the harm can be perpetuated. since coercive control is a manifestation of oppression against women, by concealing or distorting its meaning, the discourse actively participates in maintaining the status quo of power relations that enables its existence. accepting episodic violence as the discourse’s a-priori knowledge reflects on the power of social naming and agency. episodic violence is an experience known from non-intimate contexts – such as the outbursts of violence in the street – and experienced in those contexts more by men than by women. despite that fact episodic violence became the dominant meaning of violence in a discourse that was meant to address intimate violence directed mainly against women. this had to be done through excluding women’s accounts of coercive control from that process of meaning making, in a society in which men’s experiences are accepted as paradigmatic without struggle. irigaray explains how a known meaning formed in one context can be incorporated into a different context even if it is inadequate to it: “[o]ur ‘i see’ is equivalent to ‘i recognize’: i recognize a form, i recognize a concept. i recognize something that already has a face according to a model, a paradigm, an eidos that i have been taught. thus, seeing as understanding generally corresponds for us with knowing again, knowing a second time… [w]e submit ourselves here to a model learned and memorized. if in part we want to discover things that we do not yet know, this remains within the limits of a complicity with the already known and recognized.” (irigaray, 2002, pg. 144) the episodic-physical lens of domestic violence is therefore irigaray’s “model learned and memorized” that was incorporated from one context to a very different context, in detachment from the accounts of people who experience it. new knowledge around intimate violence “remains within the limits of a complicity with the already known and recognized”. in foucault’s theory, understanding one phenomenon by adopting a meaning formed around another phenomenon, is a form of continuity, which limits from the outset new possibilities of understanding: “we must question those ready-made syntheses, those groupings that we normally accept before any examination, those links whose validity is recognised from the outset; we must oust those forms.” (foucault, 2011 pg. 24) i continue the reading of the judgments in the next section to see how the discourse developed in accordance with its a-priori knowledge, creating mechanisms aimed at strengthening and safeguarding its status as the foundation of the discourse. iii(3) the everyday in the courts’ domestic violence discourse i found that the discourse operates to strengthen the a-priori not only through the repetition of a-priori statements but also, through the development of mechanisms – channels of knowledge production – that were formed on the basis of the a-priori understanding of domestic violence and that serve, in their everyday operations, to sustain it. these mechanisms are used commonly by courts when representing the harm inflicted by the perpetrator. the mechanisms are: (1) distinguishing physical violence from all other forms of behaviour, (2) itemisation of incidents, (3) hierarchy between incidents and (4) classification of non-physical forms of behaviour to separate categories. my intention here is not to identify the mechanisms themselves, since they are known to any legal scholar or practitioner in the domestic violence field, but to show their role in preserving the a-priori knowledge and their subsequent impact on the pace of change in legal perceptions. distinguishing physical violence from other forms of behaviour the first mechanism creates a preliminary distinction between incidents of physical violence and other behaviours. statements produced through this mechanism act to clearly state whether physical violence had occurred and to distinguish it from all other non-physical incidents. statements isolate the physical-violence element by describing it, for example, as “real violence” (rennick v rennick [1977] 1 w.l.r. 1455, pg. 1456) or as “actual violence” (horner v horner [1982] fam 90, pg. 93) or by clearly stating whether the incidents were of a violent nature or not (spencer v camacho [1984] 12 hlr 130, pg. 133). distinguishing physical violence from all other behaviours, a very basic mechanism in domestic-violence civil proceedings (other examples include: r v r (breach of order) [2001] ewca civ 2098; re e (children) (abduction: custody appeal) [2011] uksc 27, pg. 10), is vital for the protection of the a-priori knowledge since it can only receive its precedency above all harms when it is clearly extricated and isolated from all other conduct. itemisation of incidents the itemisation of incidents is another common mechanism that is vital for the preservation of the discourse’s a-priori knowledge (re s (minors) court of appeal (civil division), unreported, 15 july 1988; dt v lbt (abduction: domestic violence) [2010] ewch 3177 (fam)). the following is a common example demonstrating this practice: “1. soon after his arrival in england in november 2000, the applicant made a threat to kill the respondent. 2. on one occasion soon after the applicant pushed the respondent onto the sofa. 3. towards the end of february 2001 the applicant slapped the respondent twice across her face. 4. the applicant locked h in the bathroom for 45 minutes. 5. around march 2001 the applicant beat the respondent whereby he slapped and pushed her, causing her to bang her head against the door….” (re h (a child) (contact: domestic violence) [2005] ewca civ 1404, para 1). this mechanism is amplified by the practice of the submission of a schedule of findings, a document submitted to court by the parties before a fact finding hearing, in which they specify their allegations of violence in an itemised way. the schedule of findings, a central document in the proceeding, reflects the courts’ meaning of violence. when the court chooses to use the schedule of findings as the frame for its judgment, addressing each allegation separately, this shows that the incidents included in the schedule are adapted to the meaning of violence as the court understands it. compartmentalising the harm into separate incidents strengthens the a-priori knowledge. it decontextualises the violence (hunter et al, 2018) and thereby can obscure the harm of coercive control. however, it is not the practice per se that strengthens the a-priori knowledge since the practice of itemisation can be used to establish any harm. for example, coercive control can be established through itemisation by specifying behaviours aimed at isolation, intimidation and control over bodily autonomy, the three main characteristics of the harm. it is the fact that the list of incidents is compiled according to the a-priori criteria that makes itemisation, as applied by courts, a mechanism that strengthens the a-priori meaning. hierarchy of harms the third mechanism, a predictable consequence of the previous two, is the creation of a hierarchy which orders the separate incidents according to their perceived severity (for example: davis v johnson [1979] ac 264; r v broxbourne bc, ex parte willmoth [1989] 22 hlr 118; grant v james (court of appeal (civil division), unreported, 16 december 1992); friswell v chief constable of essex [2004] ewhc 3009). statements produced through this mechanism create a pyramid of incidents and locate the most severe incident of physical violence at its top, for example, by the use of the words “a much more serious incident” and “violence of a much lesser nature” (holmes v clarke, court of appeal (civil division), unreported, 6 april 1990) to describe incidents. in later judgments, non-physical incidents were added to the pyramid of harms and positioned clearly below physical violence. this third mechanism rests on both a-priori components: the hierarchy can be created only upon the perception of harm as fragmented into episodes and upon the notion that physical violence is the worst of harms that could be inflicted. therefore, every time the mechanism is applied, the a-priori knowledge becomes more ingrained as the foundation of the discourse. classifying harmful incidents into categories the fourth and last common mechanism is the classification of harmful incidents into separate categories (for example, r v r (breach of order) [2001] ewca civ 2098; ag (india) v secretary of state for the home department [2007] ewca civ 1534; r (on the application of balakoohi) v secretary of state for the home department [2012] ewhc 1439). it goes hand-in-hand with the previous mechanisms, and rests also on both components of the a-priori understanding of harm. alongside the other three mechanisms, this mechanism organises those episodes into groups – into separate categories: physical violence, sexual violence and psychological violence. the following is an example taken from a relocation judgment given by the family division of the high court. “the reason for this state of affairs is to be found in the mother’s evidence. i accept her account that she has been subjected by the father to sustained emotional, physical and sexual abuse stretching back to the early days of their relationship and continuing until its conclusion.” (dt v lbt (abduction: domestic abuse) [2010] ewhc 3177 (fam), para 10). after this introductory paragraph, the judge dedicates one paragraph to each separate category. on first impression, it might seem that acknowledging different, non-physical categories of behaviour as harm represents a shift in the court’s perception of the harm inflicted in intimate relationships. i argue though, and will develop this argument further in the next section, that the acknowledgement of non-physical harms is only a change that remains within the available space that the a-priori knowledge had left available. this change was readily accepted into the discourse because it conforms to the rules set by the a-priori knowledge, and therefore, through the everyday application of the mechanism of categorisation, the a-priori foundation is being strengthened. acknowledging non-physical harms was done in a way that did not challenge or disturb the a–priori knowledge, but rather reinforced it. the image presented through the reading of the everyday manners by which the discourse safeguards the a-priori knowledge is of a harm that is continuously fragmented by the discourse. through the a-priori/everyday dynamic, the harm is fragmented in three stages: first, it is separated into incidents, second, the physical violence component is distinguished from other non-physical conduct, and third, other conduct is affiliated to separate categories of harm. this process of continuous fragmentation can capture episodic violence but will completely obscure coercive control. to become legally intelligible, women in violent relationship of the nature of coercive control, are required to express their harm by breaking it into components that are relevant to the legal proceeding but are irrelevant to their own experiences. this gap between the legal meaning of the harm in violent relationships and women’s experiences of coercive control represents the absence of women from the formation of accepted legal knowledge. their absence is reflected not only in the dominant understanding of domestic violence but also in the inadequacy of the channels available within the discourse to express their harm. this is an absence in irigaray’s sense of the concept – an absence from the categories of perception through which realities can be named and understood. as she writes, this absence creates fragmented realities (irigaray, 1992), which are clearly expressed in the case of domestic violence and result in a detached and impoverished understanding of harm. since the existing domains and categories are irrelevant to the harm of coercive control, and even act to obscure it as they erase the relevant underlying link between separate incidents, for many women the translation of harm to a legally intelligible language is not possible. my reading of the judgments shows the manners by which the courts’ domestic violence discourse developed in accordance with the a-priori/everyday dynamic. through the repetition of a-priori statements and through the use of mechanisms when presenting and evaluating the harm, the two components of the a-priori knowledge are being protected and strengthened. with layers of homogenous knowledge piling up, it can become less and less possible to alter the foundations of the discourse (foucault, 2011, pg. 44-47). i suggested that changes in courts’ perceptions are possible only if they remain within the boundaries set by the a-priori knowledge. this, i argue, can be seen clearly in the judgment in yemshaw v hounslow, given by the supreme court in 2011 and considered as a precedent in the area of the legal understanding of the harm in violent relationships. iv(1) yemshaw v hounslow (2011) in yemshaw v hounslow the uk supreme court ruled that the definition of the word ‘violence’ in the housing act, 1996 includes not only physical violence but other forms of violent conduct as well. the court’s ruling overturned the court of appeal’s decision (yemshaw v hounslow [2009] ewca civ 1543) which accepted the housing authority’s interpretation of ‘violence’ as including solely physical violence. this was the last judgment that was given both by the supreme court and by the court of appeal of england and wales, which addressed directly the meaning of domestic violence in civil proceedings. the question i ask is whether the judgment actually represents a strengthening or a diversion from a-priori knowledge. in the previous discussion, i showed how discourse mechanisms were developed to strengthen the discourse’s a-priori knowledge and how this process of strengthening took place even when it seemed that the perceptions towards domestic violence were changing. this was recognised in the judgments that acknowledged psychological harm as a form of violence. by processing the violence through the four mechanisms, psychological violence became a separate harm positioned at the bottom of the hierarchy of harms. this way, the a-priori knowledge was preserved while seemingly changing: the violence was still fragmented to incidents and physical violence was positioned at the top of the hierarchy. the structure of the discourse was therefore still not adapted to coercive control. did yemshaw v hounslow follow the same route of strengthening a-priori knowledge while seemingly changing it or does it represent a judgment that genuinely shifts perceptions and opens a possibility for coercive control to be accommodated in a way that reflects its significance? before analysing the judgment i start by setting the basic facts and the relevant legislation discussed. the issue in the case was the interpretation of the word ‘violence’ in section 177(1) of the housing act, 1996 which reads as follows: “it is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other violence against him.” according to section 177(1a): “for this purpose ‘violence’ means – (a) violence from another person; or (b) threats of violence from another person which are likely to be carried out; and violence is ‘domestic violence’ if it is from a person who is associated with the victim.” if an applicant succeeds in proving that it is not reasonable for her or him to occupy their own accommodation, they will be considered as homeless for the purposes of the act, and consequently eligible for social housing. the specific question before the court was whether the word ‘violence’ in section 177(1) was limited to physical contact or whether it included non-physical forms of conduct as well. the appellant sought the help of the local housing authority, explaining that she had to leave the matrimonial home with her children because of her husband’s violence against her. she described his behaviour to the housing officers, but because it did not include physical violence, the housing officers declined her application. they interpreted the word ‘violence’ in the act as meaning solely physical violence, and accordingly decided that she was not considered homeless. the court of appeal refused her appeal, confirming that the word ‘violence’ in the act was limited to physical contact. the appellant appealed to the supreme court. lady hale gave the leading judgment and ruled that the word violence includes not only physical but also non-physical forms of violent conduct. lord brown and lord rodger wrote separate judgments while agreeing with her ruling. i analyse the three judgments through the a-priori/everyday theoretical framework, asking whether they represent an actual change in legal perceptions or follow the previous route of acknowledging psychological violence while maintaining the foundational understanding. i argue that yemshaw v hounslow is a judgment that represents an interruption in the habitus as theorised by bourdieu and explained in part i. in short, bourdieu sees the a-priori and everyday as layers merged to an extent that when processes of change take place, it cannot be clearly identified whether the change is directed by the a-priori perceptions or by the everyday acts. instead of focusing on either the a-priori or the everyday, bourdieu focuses on the balance that was created between them and which forms the habitus. a change in perceptions is identified when an interruption in that balance can be seen. i argue that yemshaw v hounslow cannot be seen as a judgment that represents a change in legal perceptions but as a sign of interruption in the balance between a-priori and everyday acts that can then lead to change in the future. an interruption rather than change in foundational knowledge was seen through noticing two opposite directions in the judgment occurring at the same time: on the one hand, a consistent strengthening and justification of a-priori knowledge and on the other hand, several statements by lady hale, representing in butler’s theory performative acts, pushing the discourse towards dismantling the a-priori knowledge. strengthening and justifying a-priori knowledge: in interpreting the legislative purpose of the housing act, 1996, lord rodger and lord brown point at texts that they interpret as showing that in passing the legislation, parliament had originally intended to protect victims of physical violence and not victims of psychological violence. the distinction between physical and psychological harms runs through lord rodger and lord brown’s judgments, reinforcing the lines of the discourse’s a-priori knowledge. the strengthening of a-priori knowledge takes place, not through interpreting the original purpose this way (although the purpose could have been interpreted differently) but through the statements in which lord brown and lord rodger justify this division. for example: “parliament therefore seems to have been concentrating on the paradigm case of battered wives, women who feared physical violence – understandably enough, since the new act was imposing novel obligations on local authorities.” (lord rodger, para 42, italics added). “if one considers just why it is that domestic violence (indeed, violence generally), in contradistinction to all other circumstances, has been thought to justify a deeming provision – a provision, that is, which deems it unreasonable that a probable victim of future such violence should continue to occupy his or her present accommodation, the explanation would seem to me to lie partly in the obvious need for the speedy re-housing of those identified as being at risk of violence in order to safeguard their physical safety, and partly in the comparative ease with which this particular class of prospective victims can be identified. with the best will in the world i find it difficult to accept that there is quite the same obvious urgency in re-housing those subject to psychological abuse, let alone that it will be possible to identify this substantially wider class of prospective victims, however precisely they may be defined, with anything like the same ease.” (lord rodger, para 54, italics added). justifying an approach that relies on the separation and hierarchisation of harms strengthens and shields the discourse’s a-priori knowledge. therefore, even though their final ruling was that the word ‘violence’ should be interpreted as including psychological violence, by justifying the classification of harms and their ensuing hierarchy, lord rodger’s and lord brown’s judgments go along the lines of the previous judgments discussed, which actively reinforce the a-priori knowledge while seemingly changing it. performative acts several statements in lady hale’s judgment push the discourse in a different direction and therefore i acknowledge them as performative acts. in their content they abandon the a-priori foundations and instead point at foundations that are reflective of the meaning of coercive control. the first statement clarifies that the term ‘violence’ should be released from any attachments to prior meanings when interpreted: “violence is not a term of art. it is capable of bearing several meanings and applying to many different types of behaviour. these can change and develop over time.” (para 27) by releasing the term ‘violence’ from any prior meanings and by clarifying that it can develop and change, lady hale acts to weaken the existing a-priori foundations and frees the discourse to create new ones. lady hale does not address the a-priori knowledge directly but instead clarifies that it has no dominating status over the discourse. this might prove to be a strategy that has a stronger potential to steer the discourse in a different direction rather than the potential that directly challenging the existing foundations might have had. in the following sentences lady hale strengthens the performative potential of her judgment by directing the discourse specifically towards coercive control. the following paragraph appears at the end of her judgment, in a section in which she guides the housing authority officers on the question they will need to ask when making decisions in cases of domestic violence: “was this, in reality, simply a case of marriage breakdown in which the appellant was not genuinely in fear of her husband; or was it a classic case of domestic abuse, in which one spouse puts the other in fear through the constant denial of freedom and of money for essentials, through the denigration of her personality, such that she genuinely fears that he may take her children away from her however unrealistic this may appear to an objective outsider?” (para 36, italics added) lady hale describes in this paragraph the main characteristics of coercive control as the “classic case of domestic abuse”. by using the term “classic case” when describing these main features, lady hale delivers the message that coercive control should be acknowledged as central to the understanding of domestic violence, and by that she again weakens the current foundations of the discourse – the episodic and physical violence lenses. she provides a whole new lens through which to look at the harm, one which reassembles the elements that were previously separated by the a-priori lens. in this paragraph lady hale addresses a possible scenario in which a housing officer would decline an application on the ground that the behaviours constitute abuse and not violence, and clarifies that a line between these terms should not be made in these situations. lady hale’s choice of the word ‘abuse’ and not ‘violence’ in this paragraph deserves attention, especially as this choice is made in a judgment which defines violence in a broad way that includes different and not only physical forms of behaviour. i believe that this choice strengthens the performative potential of this statement: by choosing the word ‘abuse’ when describing to the housing officers what would constitute violence according to the act, lady hale weakens even more the conventional understanding of violence. she delivers the message that there is no room for distinction between violence and abuse in the domestic violence context. by inserting behaviours that would commonly be perceived as abuse into the definition of the term ‘violence’, lady hale takes a further step in challenging the a-priori foundation, since this type of behaviour can be identified only if the a-priori lenses are abandoned. even though these are powerful performative acts, reading them within the entirety of lady hale’s judgment and together with lord rodger’s and lord brown’s judgments, leads to the conclusion that they do not represent yet a change in the accepted legal meaning of domestic violence. the majority of the statements in the judgments still accept the foundations of the existing apriori knowledge. in addition to the statements quoted above from lord rodger and lord brown’s judgments, the following statement in lady hale’s judgment reinforces the a-priori knowledge by justifying the fragmenting lens: “the advantage of the definition adopted by the president of the family division is that it deals separately with actual physical violence, putting a person in fear of such violence, and other types of harmful behaviour” (para 34). lady hale does not explain why addressing harms separately is an advantage and it is not clear whether she meant that separate classifications is a procedural advantage or an advantage for the women who approach the court. by presenting fragmentation as an obvious advantage without explanation, the foundations of the discourse are being strengthened. therefore, lady hale’s performative acts do not testify of a change in the discourse’s a-priori knowledge. instead, their importance lies in the opening they provide for a significant change to occur in the future. i recognise that yemshaw v. hounslow simultaneously strengthens the a-priori knowledge and provides a path for its change. it does not represent a change in foundational knowledge but a disturbance in the solidity of that foundation. going back to the three theoretical focus points described in part i, the change that yemshaw v hounslow represents is not a dismantling of the a-priori knowledge, irigaray’s focus point in processes of change. the existence of lady hale’s performative acts in the judgment, reflects butler’s emphasis on the ability of everyday acts to effect change even when a-priori knowledge is presented as intact. it mostly reflects bourdieu’s theorisation of the habitus, showing that change can be recognised through small disturbances in the balances between the a-priori and the everyday that create the habitus, rather than in definite events that reflect clear change. iv(2) recent period in recent years, coercive control has been increasingly acknowledged as a legal harm. one of the most prominent signs of its recognition is the passage of section 76 of the serious crime act, 2015 by which controlling or coercive behaviour in intimate relationships came to be recognised as a criminal offence in england and wales. another significant development is the revision in 2014 of practice direction 12j of the family procedure rules, 2010 to incorporate controlling and coercive behaviour. i will return to the practice direction in the discussion that follows. these developments and recent case law leave no room for doubt that coercive control in intimate relationships is now acknowledged as a legal harm in england and wales. however, whether its meaning is understood is a separate question. in yemshaw v hounslow, lady hale created a fracture in the solidity of the a-priori knowledge which led the way to a future path in which the alienating barriers and lenses of the discourse will be abandoned. is there evidence in recent judgments that this fracture is expanding? i base the discussion on judgments given in proceedings that addressed coercive or controlling behaviour in intimate relationships. i focus on the last two years, starting in october 2017 when the latest revision of practice direction 12j came into force, which replaced the term ‘domestic violence’ with ‘domestic abuse’. the practice direction sets out what is required of family courts and the high court in england and wales in any proceeding that involves a reason to believe that a child or a party has experienced ‘domestic abuse’. the definition of ‘domestic abuse’ includes ‘controlling, coercive and threatening behaviour’. the definitions section includes separate definitions of ‘coercive behaviour’ and ‘controlling behaviour’. a group of judgments were published following the revision of the practice direction which enabled a reflection on the impact of the discourse on the understanding of coercive control. reading the judgments leads me to the conclusion that the significance of coercive control is being lost in the process of integrating it into the discourse. the judgments show that coercive control is being processed through the a-priori knowledge and through the mechanisms that were developed within the discourse over the years. as a result, its meaning and centrality to the violent relationship is misunderstood. the discourse obscures the significance of coercive control in three inter-connected ways. coercive control is a new category of harm first, through the mechanisms of the discourse, the harm that was supposed to re-assemble all fragmented elements is eventually further deepening the process of fragmentation. in the judgments, coercive control is clearly seen as a new category of harm, added to the other categories that were already formed, or “headings” as sometimes termed in judgments, alongside, for example, physical violence or verbal aggression. this is the same mechanism of categorisation seen in the judgments from previous years that serve to sustain the discourse’s a-priori knowledge. for example: “the mother attended the hearing with an un-numbered schedule containing no fewer than 77 allegations across numerous categories – physical, verbal, control… doing the best [the district judge] could she quickly identified that the first 8 in particular contained allegations of physical harm and they amounted to domestic abuse if true. she also recognised the possibility that allegations under some of the other headings – such as verbal abuse or coercive control – might have amounted to domestic abuse” (a v c [2018] ewfc b76). this statement by the family court shows how coercive control is seen as a new category of harm and eventually strengthens the continuous fragmentation of the violence. through selecting and prioritising incidents from the mother’s schedule, the court shows its understanding of coercive control and of its place within a violent relationship. the discourse obscures the relevance of coercive control for the evaluation of all behaviours second, the discourse obscures the significance of coercive control as the element that connects between all behaviours. without seeing the relevance of coercive control to all behaviours, their severity can be misevaluated and the level of risk the perpetrator presents can be underestimated. judgments such as m v f (family court, unreported, 7 june 2019) show how coercive control is acknowledged as a separate allegation but its relevance to other allegations is not realised. the danger of coercive control is underestimated third, the discourse leads to an underestimation of the danger of coercive control by subjecting it to the hierarchy of harms. through the known mechanism of hierarchisation, coercive control is located at the lower part of the hierarchy, while physical violence, still evaluated as a separate allegation, is located at its peak. we can see this practice clearly in m v f (family court, unreported, 7 june 2019). the fact that the father isolated the mother from her family and friends for years was presented as one allegation. financial control was added as another separate allegation. the allegations that followed concerned physical violence or threats of physical violence. the court then addressed each allegation separately, concluding that isolation and financial control are not forms of domestic abuse and including in that term only the physical violence incidents. we can see this also in the fact that just as in the period before coercive control was acknowledged, applications receive strength only when the applicant can prove that the perpetrator used physical violence (see for example: sd v afh and omd [2019] ewhc 1513 (fam) showing that the necessity to schedule a finding of fact hearing to establish violence became clear only after an incident of physical violence, despite the father’s persistent bullying behaviour that preceded that incident; and f v l (child arrangement order: relocation) [2017] ewca civ 2121 in which the court of appeal overturned the judgment given by the high court which recognised the significance of coercive control and upheld the judgment by the family court which ignored it). perceiving coercive control as a less severe harm is amplified by the practice direction, which in its latest revision from 2017 established that it is not a form of violence. ‘controlling, coercive and threatening behaviour’ was included as a sub-form of abuse alongside ‘violence’. given the dominant perception of physical violence as the most severe harm in a relationship, creating a situation where the word ‘violence’ can maintain its narrow meaning without interruption, and clarifying that coercive control is not included under that term, can strengthen the hierarchy further. these examples show that through the engrained mechanism of hierarchisation of harms, the risk embedded in coercive control is dangerously misevaluated. recent judgments show that the significance of coercive control was lost through its integration into the discourse. the discourse was not changed by coercive control but rather subjected it to its rules. the discourse maintained its structure and i did not find evidence that the openings made by lady hale in yemshaw v hounslow are expanding. the integration of coercive control into the discourse therefore results in distorting its meaning and in misevaluating the danger it presents. conclusion in the context of the growing acknowledgement of coercive control as a domestic violence harm, i examined the courts’ domestic violence discourse, in order to reflect on its adaptability to the harm of coercive control. my reading of judgments showed that the courts’ domestic violence discourse was not only formed upon a-priori knowledge which is different, detached and alienated from women’s experiences of coercive control but that it acts on a daily basis to protect, sustain and further strengthen that knowledge. through an alignment of the everyday acts of discourse with the discourse’s a-priori knowledge, the discourse acts as a knowledge-sustaining system – an apparatus that protects its a-priori knowledge by creating channels of knowledge production that can only produce knowledge of the same type. since coercive control is knowledge of a whole different type, it cannot be integrated into the existing discourse. the foundation, structure and everyday operations of the discourse were revealed to be unsuitable for the understanding of coercive control. the discourse’s a–priori knowledge is based on the episodic violence harm, whereas coercive control is a harm of an entire different type. the gap between the harms and the ensuing development of the discourse reflect on social power relations and agency. the effort to integrate coercive control into the discourse leads to a distortion in its understanding and dangerously to an underestimation of the life threatening risk that it presents. the analysis leads to the conclusion that coercive control must be extricated from the current domestic violence discourse in order to be adequately understood. it requires a separate discourse, one that is based on a relevant foundation and is operated according to an effective set of tools and practices. these can start to develop only once coercive control will not be bound by the barriers enforced by the discourse it is currently part of. references bishop, c., 2016. domestic violence: the limitations of a legal response. in domestic violence, edited by hilder, s. and bettinson v. 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(pg. 108-138). blackwell. foucault, m., 1990. the history of sexuality: an introduction. vintage. foucault, m., 2005. the order of things. routledge. foucault, m., 2011. archaeology of knowledge. routledge. foucault, m. and ewald, f, 2003. “society must be defended”: lectures at the collège de france, 1975-1976. macmillan. gordon, l., 1988. heroes of their own lives: the politics and history of family violence: boston 1880-1960. penguin group usa. herman, j.l., 2015. trauma and recovery: the aftermath of violence -from domestic abuse to political terror. hachette uk. hunter, r., barnett, a. and kaganas, f, 2018. introduction: contact and domestic abuse. journal of social welfare and family law, 40(4), pg. 401-425. irigaray, l., 1992. the irigaray reader. blackwell. irigaray, l., 2002. being two, how many eyes have we? paragraph, 25(3), pg. 143-151. johnson, m.p., 1995. patriarchal terrorism and common couple violence: two forms of violence against women. journal of marriage and the family, 57(2), pg. 283-294. madsen, m.r. and dezalay, y., 2002. the power of the legal field: pierre bourdieu and the law. in an introduction to law and social theory, edited by banakar, r. and travers m. (pg. 189-207). hart publishing. stark, evan. 2009. coercive control: the entrapment of women in personal life. oxford university press. wandor, m. 1990. once a feminist: stories of a generation. virago. ___________________________________________________________________________ 22 ___________________________________________________________________________ 21 drakopoulou revisiting feminist jurisprudence _____________________________________________________________________________ feminists@law vol 3, no 2 (2013) _____________________________________________________________________________ revisiting feminist jurisprudence: a rehabilitation maria drakopoulou* abstract this paper seeks to revive feminist interest in jurisprudence. however, it does not do so by conducting a historical inquiry designed to restore forgotten female jurists or reveal women’s contributions to the jurisprudential tradition. instead, it comprises an invitation to rethink the encounter of jurisprudence with feminism. to this end it considers what counts as feminist jurisprudence, situating the rise of legal scholarship that defines itself as such, and setting out the notion of positionality as the criterion to judge what else can be included under this label. thereafter it discusses the distinctive strands of what i deem to be feminist jurisprudence, before concluding with a call for a feminist re-imagining of jurisprudence as an activity both theoretical and pragmatic, and also as one which might hold hitherto un-thought possibilities for a feminist analysis and critique of law. i. the invention of a tradition knowledge is one, but each separate part of it which applies to some particular subject has a name of its own; hence there are many arts (technai)…and kinds of knowledge or science (epistemai). plato (1991) the concept of jurisprudence designates one such specific body of knowledge; the knowledge, that is, of law. more precisely, jurisprudence refers to the kind of knowledge that promises a deeper understanding of law; one which cares neither for doctrinal exegesis nor technical descriptions of legal rules, but, in embracing much broader horizons, engages with diverse conceptual inquiries into the ethical, political, philosophical and normative dimensions of legal study. although somewhat lacking in clarity such a general description is accurate insofar as it conveys the principal characteristic that has been constitutive of the definition of jurisprudence throughout its history, namely that its concerns lie with the theoretical analysis and study of law and its institutions. the history of jurisprudence has been long and venerable. of latin origin, the term itself is etymologically rooted in the words iuris (of law, of the right) and prudentia (wisdom, knowledge), a translation of the greek word phronesis, which aristotle (1994: vi. v-xiii) considered to be one of the intellectual virtues. though not the same as the virtue of wisdom, phronesis is itself a form of wisdom directed at distinguishing between good and bad in matters of conduct in life; not only of one’s own and others’ private conduct, but that in the polity as well. as part of the rational faculty, phronesis denotes excellence in deliberations concerned with practical affairs and is closely correlated with a person’s age and experience. as such it does not merely designate an exceptional ability to exercise thought carefully and a capacity to understand and correctly judge a particular state of affairs. the process of deliberation phronesis inaugurates should culminate in a decision and a pronouncement of what ought to be done, together with an exposition of the most suitable means of expediting this objective. what therefore distinguishes a judgement resulting from phronesis from one arrived at through wisdom alone is the close association of the former to ends that are to be attained by some form of action. so whilst one’s virtuous disposition functions to ensure the rightness of an end, it is phronesis which commands the correct means for achieving this end. although in being so closely connected with action the virtue of phronesis was seen as indispensable to those entrusted with the responsibility for the legislative and judicial functions, for the ancient greeks it remained firmly entrenched in the ethical domain (aristotle 1994: vi.viii.3-4). it was with the writings of cicero that prudentia migrated from the field of ethics to the ‘science’ of law, and the term ‘jurisprudence’ was formulated to designate the special kind of prudence associated with law. for if law, as its name signified, was right reason commanding right conduct, and hence the measure of what is good and bad, just and unjust, then prudence belonged to law such that law was prudence in itself (cicero 2000: i.v.18, vi.19, xxii.58, 33). yet it is not only its etymological birth that the concept of jurisprudence owes to rome; its creation as a separate domain of knowledge is also of roman heritage. during the latter years of the republic a body of legal literature emerged comprised of interpretations, commentaries, responses and expert opinions covering important questions of law. together these laid the foundations for a distinct tradition of the knowledge and study of law. there also appeared a new order of public personage, the roman jurist, drawn from the elite classes, whose prudence in being associated with their own comprehensive knowledge and mastery of law’s ‘mysteries’, became practically indistinguishable from that of law. yet for these men, who bound themselves to jurisprudence out of love rather than necessitude, law was not their sole pursuit. they were also actively immersed in public life, enjoying high status and considerable authority in the roles of jurist, statesman and orator. indeed, on account of the considerable dignity the jurisprudentes enjoyed, both as politically active citizens and as students and teachers of its law, the roman citizenry could boast that they, unlike the greeks, had entrusted the authority of their law to their most eminent men (cicero 1989: 1.198, 253). seeing no contradiction between a life in the service of law and one in the service of the people, these jurisprudentes recognised no incompatibility between different branches of learning. though accepted as a specialised form of knowledge, jurisprudence was also open to influences from other disciplines, in particular, from rhetoric, philosophy, politics and ethics. and even though during the roman empire, when jurists were primarily tasked with advising government officials and the emperor in legal matters, and with jurisprudence taking a more technical turn, concerning itself with the project of systematisation, its study continued to preserve its intellectual openness. acclaimed as the most important legacy of rome, its jurisprudence traversed european history and, through its systematisation in justinian’s sixth century a.d. codification as the corpus juris civilis, shaped the paths of law and legal knowledge across the centuries to follow. throughout this journey it also preserved its receptiveness to other disciplines. renamed ‘civil science’ or ‘civil wisdom’ in the newly founded temples of knowledge, the medieval universities, jurisprudence did not simply engage with technical questions of law and hermeneutical methods for discovering the true meaning of received legal texts. it variously pursued debates over the most appropriate rhetorical and dialectical devices for law, delved into philosophical and theological discussions on the nature of justice and equity, and explored political arguments about the essential components of constitutions. neither did it neglect issues concerning its own identity; whether, for instance, it should best be seen as a branch of literature, and therefore as one of the arts, as a form of prudence governed by experience, or, as a rational and universal science (kelley 1976: 274, 1990: 135). associated with right reason, the ‘art of the good and the just’, with the knowledge of things divine and human, and the mastery of the distinction between justice and injustice, it dethroned philosophy as the queen of sciences to become itself the ‘true philosophy’ (digest 1888: i.1; kelley 1976: 267; justinian institutes 1987: i.1). jurisprudence finally entered the english language in the early seventeenth century. although gaining a near universal acceptance on the continent as true philosophy, upon arrival on english soil it dispensed with its links to renaissance humanism and adopted a peculiar form. this is not to suggest english jurists of the time were ignorant of the continental legal methods and debates, or that there were no calls for the reception of the civil law as “…the most ancient and noble monument of the roman’s prudence and policy” (starkey, in mayer 1989: 175). it was simply that these voices were quickly muffled, lost reminders of a ‘history of failures’ marking an alternative path english jurisprudence might once have taken. turning away from the continental models that would have borne comparative, historical and philosophical methods into the study of law, english jurisprudence identified itself with what coke called the law’s ‘artificial reason’ as distinct from the natural reason belonging to ordinary people. none other than the pragmatic and disciplined way of reasoning required by the practice of common law, it was only to be revealed through complete immersion in the long, hard and detailed study of common law’s historical record, the living archive of its cases. for it was here, in the collective deliberations and knowledge of learned and experienced judges, that the reason of common law was perfected and exposed, and it was only from here that it could be fully understood. what was born in the seventeenth century and released into history as the ‘orthodox’ or ‘classical common law jurisprudence’ was an endemic discourse wherein the study of law was of its practice rather than its theorisation. here was a discourse whose language, replete with manifold images and symbols celebrating a single, unitary legal tradition, would remain steadfastly bound to the idea of a quintessentially english law, and ultimately, to a jurisprudence as insular as the history common law claimed for itself. today questions about the englishness of english law, though not entirely dispensed with, have been quietly set aside. their marginalisation began with the rise of the ‘grand’ jurisprudential projects of the nineteenth century, such as those pursued by the historical, marxist, analytical, and sociological schools, and culminated with the triumph of the positivistic school in its variant forms. the latter would come to dominate the jurisprudential scene down to the present day, remaining largely unchallenged prior to recent interrogations by what might loosely be described as critical and post-modern jurisprudence.  nurtured in the shadow of epistemological questions posed by kantian philosophy and neo-kantianism, as well as the new ontologies created by the social science disciplines founded in the nineteenth century, these schools have come to seek unequivocal answers to the ‘how’ and the ‘why’ of the development of law and its institutions. they explore the relationship of law to politics and confront the fundamental question of jurisprudence, what is law? exploring the internal logic of law’s conceptions, its doctrines, forms of reasoning and its rules, as well as what the appropriate function of law is or should be, they also debate whether law should best be analysed as a self-contained system of norms or as a cultural and social product of its times, and even consider whether, at a time of globalisation, a universal jurisprudence is either feasible or desirable. women have certainly not loomed large during the long and revered history of jurisprudence. in fact they barely have been present at all; apparently there having been no female jurists, female authors of jurisprudential manuals, or female founders of jurisprudential schools. it could be argued that this should only be expected given that until recently women were systematically excluded from law and from politics, and whilst not forbidden an education, across all strata of society theirs was a curriculum devoid of law and philosophy. yet, let us not forget that despite the diverse forms of exclusion imposed upon them down the years, women nevertheless have made substantial contributions to many forms of intellectual endeavour. neither should we ignore the many ‘miracles’ performed by modern feminist scholarship in unearthing a rich heritage of women’s participation in virtually every field of knowledge and the arts. law, or to be more precise, the theoretical and philosophical questions of law with which jurisprudence has concerned itself, does not however seem to have benefitted from such excavations. it might be suggested that women have not been sufficiently interested in law or that their interest has been effectively blocked by the difficult, specialised, and obscure language of legal science. however, we know so very well that even at the height of women’s exclusion from english law, when the doctrine of coverture was in full force, women litigated and wrote lengthy critiques condemning the injustices they suffered at the hands of law. we should also be aware of the long tradition of women philosophers reaching right back to hypatia; women who articulated their ideas in a language no less abstruse than that of law. so the question remains: if women have so ably authored treatises on the military arts, political theory, ethics and philosophy, topics which, like law, have been alien to their education, then why has there been such a dearth of contributions to legal theory and legal philosophy? it is certainly the case that the study of law has been a particularly male domain, and one extremely hostile to the idea of women being in any way involved in jurisprudence. since its birth in ancient rome, right down through to modernity, the teaching of jurisprudence has been grounded in what the ancient greeks called mathesis, and the renaissance scholars ‘discipline’. this was essentially a hierarchical mode of learning wherein the master, through instructing his ‘disciples’, imparted the ‘true doctrine’ and thereby preserved the continuity and coherence of law’s intellectual transmission (kelley 1997: 12-16). evidence of this is to be found in accounts of the history of jurisprudence, comprised of a series of great masters and their students whose writings and teaching both marked and formed this tradition. furthermore, this mode of accounting differs little from that we see today, as attested to by the way jurisprudence is still taught in our contemporary schools of law (veitch et al. 2012: 2). yet positing the practice of mathesis as sufficient reason for women’s absence from jurisprudence should perhaps also be dismissed on the grounds that the true history of its tradition might well have been otherwise. although jurisprudence has been widely celebrated as rome’s most important creation and legacy, it has also been its greatest invention, with its fair share of myth makers standing alongside its masters. the juristic tradition deriving from republican rome is just one such mythologem; the collective identity of the jurisprudentes being essentially a constructed image imposed retrospectively by jurists via a culture of citation designed to ascribe continuity, authority, and disciplinary status to their own enterprise (harries 2006: 49-50). similarly, the uniquely english tradition unfolded in the writings of edward coke (who was actually dubbed ‘the great mythmaker’) wherein it is portrayed as reaching back to times immemorial, was just such another invention (hill 1997). we might therefore be tempted to conclude that women realised very early on that jurisprudence was an invention and therefore not worthy of their interest. but this would only ring with a hint of truth had not feminist writings throughout their history applied their exceptional wisdom and well-honed critical skills to deal with any imagined and invented knowledge claims about them. this lack of feminist interest in jurisprudence is not just a thing of the past. modern feminist legal scholarship, which otherwise has left virtually no stone unturned, has also shied away from an explicit jurisprudential engagement with law. some attempts to rectify this situation were made in the 1990s, but the enthusiasm was short-lived and has yet to be recovered. herein lies the purpose of this paper; to revive feminist interest in jurisprudence. in attempting to do so, my intention is not to pursue a historical inquiry, one which seeks to restore forgotten female jurists or women’s contributions to the jurisprudential tradition. my intervention is not motivated by any wish to fill gaps in the history of jurisprudence’s by adding women. rather, it comprises an invitation to rethink jurisprudence as an ‘invented’ tradition and suggest that a more fruitful feminist critique of law may arise from this encounter of jurisprudence and feminism, one i believe we were rather too quick to reject. to this end the remaining text is divided into three parts. the first part considers what counts as feminist jurisprudence for the purpose of this paper. it historically situates the rise of a body of legal scholarship self-defined as feminist jurisprudence, whilst also setting out the notion of positionality as the criterion to judge what else is to be included under the label of feminist jurisprudence. the second part discusses the distinctive strands of what i deem to be feminist jurisprudence; and, the third, by way of concluding, calls for a feminist re-imagining of jurisprudence as an activity both theoretical and pragmatic, which might hold hitherto un-thought possibilities for a feminist analysis and critique of law. ii. setting the scene …this article demonstrates the necessity of making a feminist evaluation of our jurisprudence and of taking a jurisprudential view of feminism. scales (1980: 375) the terms ‘feminism’ and ‘jurisprudence’ first came together at a conference organised by women from harvard law school in april 1978 in celebration of the 25th anniversary of another first, that of female graduates from its hallowed halls. the subject of one of the conference panels, entitled towards a feminist jurisprudence, was described as “a wildly philosophical exploration of the impact of feminism on the structures and principles that support the legal system” (scales 1980: 375). and although, as scales reports, the panellists concluded that perhaps there should best not be such a thing as a feminist jurisprudence, the term itself survived, thereafter appearing in the pages of the indiana law journal, and subsequently making its way into the world of feminist legal scholarship (scales 1980). by the mid-1980s it had become firmly established on both sides of the atlantic, rooting itself in north america, the antipodes and on the continent of europe. at the time feminist jurisprudence also attracted the attention of feminist scholars in british universities, but here, despite being widely discussed, it failed to gather firm support in any great measure and was mostly viewed with a degree of scepticism reminiscent of the panel’s conclusions at its harvard birthplace. despite being described as having ‘come of age’ by the late 1980s, within feminist commentary a singular or precise definition of feminist jurisprudence is remarkably hard to find (littleton 1987: 2). true, given its highly pervasive nature jurisprudence cannot easily be demarcated as a subject area. yet, whereas within mainstream jurisprudence this difficulty often has been a topic for discussion and at times even the focus of fierce debate, feminist legal scholars, whether through insufficient interest or perhaps because of the size of the subject, have shied away from attempting a definition of a feminist version. most usually the field has been regarded generically, as a theoretical engagement with law and its methods, and with little elaboration as to what exactly this might entail. sometimes, accounts of a contextual history of the rise of feminist jurisprudence or presentations of the substantive arguments of its specific strands have functioned as a substitute for a definition, whilst references to the diversity of its subject matter are offered as an explanation for this absence (e.g. cain 1990; smart 1991). in itself this lack of definition constitutes an invitation for setting criteria as to what counts as feminist jurisprudence and designating dividing lines between its different strands. from its inception feminist jurisprudence was first and foremost a contemplation and affirmation of a theoretical and critical position towards law. at first glance this may seem as nothing particularly new or unusual, since women have a long tradition of critically engaging with law, one which stretches back way beyond arguably the highest profile instance; their nineteenth century campaigns for civil rights. modern feminist legal scholarship, following the path our victorian foremothers carved out within this tradition, continues to be deeply concerned with law’s impact upon women’s social reality. feminist jurisprudence has however, differed markedly from all that had gone before. it emerged as an entirely novel project, an ambitious and daring undertaking wherein feminist legal scholars directly questioned the nature of law, asking what it is and how it works, rather than what law does to women. in exhorting the originality of feminist jurisprudence i do not suggest that confronting legal rules seen to exclude, discriminate against, marginalise or disempower women, is not of significance. rather, i wish to draw attention to the qualitatively different type of encounter that the rise of feminist jurisprudence, with its peculiar way of interrogating the institution of law, initiated. for within the discursive space thereby created, feminism neither takes it upon itself to ‘legislate’ rules that benefit women, nor provide avenues through which law’s liberal ‘promises’ might be fulfilled. refusing to act in the name of law, it instead addresses the law as an equal, meeting it head-on; with ‘her’ thinking challenging law’s rationality, and juxtaposing a voice and a mind of ‘her’ own to that of law’s, to speak of law to law. of course, emphasising the position of the legal scholar towards law as the means of circumscribing feminist jurisprudence might attract some objections on the grounds that all forms of feminist inquiry in law are, in effect, based upon some sort of positioning. after all, feminism praises itself as being situated knowledge (haraway 1991; hekman 1992). however, i contend that what marks out feminist jurisprudence from other forms of feminist engagement with law is precisely its departure from the established, dominant conceptions of what a feminist position towards law is. i therefore identify the concept of positionality as the criterion for distinguishing what i consider to be feminist jurisprudence from other forms of legal scholarship. in feminist literature the concept of ‘positionality’ first emerged in the context of identity politics. here one’s ‘position’, defined in reference to a complex of external conditions, which, as such, are prone to change, was regarded as key to better understanding one’s identity. shifting the emphasis to the woman’s external situation in this way allowed the contextualisation of a network of important confounding variables, such as race, religion, sexuality or class, such that the identity of a ‘woman’ could be defined according to a constellation of parameters articulated in inherently mutable contexts, rather than as constituted by essential qualities, which thereby avoided the pitfalls created by ontological understandings of womanhood (alcoff 1988: 433-4). subsequently adopted in feminist debates around the production of knowledge, the concept of positionality was utilised primarily in one of two ways. it was wielded critically in respect to bodies of knowledge, which, ignoring their own situatedness, claimed to be universal, neutral and objective. this allowed feminist scholars to effectively challenge these bodies of knowledge for being, for instance, male, colonial or racist. and, it also was employed in attempts to develop normative blueprints, most specifically in relation to securing best practice in feminist empirical research, particularly that carried out in the field. here, it was suggested that a researcher’s awareness of her own position and its function as part of the conditions of the production of knowledge could and should, through a greater understanding of the power relationships involved, nurture a special sensitivity to those being researched. this double focus of positionality, initially associated with the question of female identity, the question of ‘who speaks’ and ‘from where’, and then subsequently linked to the question of feminist engagement with knowledge as one of reflexivity and self-reflexivity, is central to my discussion of what comprises a jurisprudential engagement with law. questions of position and identity, notably in the guise of ‘who speaks’, have not been alien to feminist legal scholarship’s concerns with, and investigations of, law. indeed, locating the problem with law primarily within the dyad of ‘women and law’ rather than the legal institution alone has had a major influence on the manner in which notions of identity have come to be understood within the modern feminist legal discourse. put simply, by placing the emphasis on ‘law in relation to women’ and targeting those legal norms blamed for oppressing them, the knowledge claims thereby raised do not directly address law’s prudence, its workings, or its power structure. this is because these claims are not epistemologically grounded upon an interaction between the scholarship’s own knowledge and wisdom, and that of law, but are mediated by claims about women’s social reality and the many ways it is negatively impacted by the legal rule. here, in order to assert knowledge of the ills law causes women to suffer, the epistemological gravity of the question ‘who speaks’ is relegated beyond the domain of law, to the social. so what becomes of the utmost importance in this epistemological arrangement is not the identity of the legal scholar, but that of the ‘empirical woman-knower’ articulating such ills she to whom feminist legal scholarship must lend an ear so as to hear women’s grievances and confidently assert and present them to law. is it she who is entitled to speak as an all-inclusive ‘we’, or should this ‘knower’ be the many women of feminism who can only report their own experience of law through speaking as a ‘we’ grounded in particularity and difference, whether this difference is based upon race, ethnicity, religion, class, sexual orientation or a combination thereof? whatever the merits of different feminist approaches to the identity of the ‘empirical woman-knower’, they share an acknowledgement of positionality as a signifier of this identity and so treat it as epistemologically foundational. yet, once these claims are translated into the language of law by the feminist scholar and are received in its interiority, the question of ‘who speaks’ becomes muted. it is as if, upon entering the realm of law, the identity of the legal scholar and her stance towards her object of inquiry ceases to be relevant or important. it effectively becomes conflated with that of the empirical woman ‘knower’, with the result by and large being that feminist legal scholarship neither sees the need to account for its own position and identity, nor reflects upon its very own attitude towards law as a body of knowledge and the way it engages with it. perhaps this seeming indifference is justifiable insofar as it is not the feminist legal scholars who originally assert which rules are harmful to women. they endorse claims deriving from women’s everyday reality, explain to law ‘why’ and ‘how’ these rules harm women, and then adjudicate the case in order to identify and demand a solution. in effect, it is the social that validates their knowledge claims about women and law, and their addressing the law. standing as interlocutors of law, not in their own right, but as mediators between women and law, what is therefore of primary importance to this role is an account of how women and their claims are best submitted to law; an account that bears no reference to the particular identity of the feminist legal scholar or her positionality towards law as a body of knowledge. it is precisely this ascription of the role of the intermediary to the feminist legal scholar that gave rise to one of the most intense and painful debates to have taken place amongst feminist legal scholars over the past few decades; the central question being on whose behalf should the legal scholar stand before the law whether she should represent an all-knowing woman of feminism capable of articulating a universal experience of law or represent women as equal or different to men, in terms of differences between women, as relational rather than autonomous subjects, or, as intersectional subjects. this displacement of the identity of the legal scholar and her positioning towards law distinguishes the form of engagement with law i characterise as ‘women and law’ from what i call ‘feminist jurisprudence’; with accounts of identity and positionality lacking in the former and present in the latter. although i borrow the concept of positionality as it emerges in the literature cited above, my own use is somewhat different. as do they, i employ it as a signifier of identity; though here the identity is that of the legal scholar. i too expect an account of positioning that denotes that of the scholar towards a particular body of knowledge and shows awareness of ‘how’ she engages with this knowledge. so just like they, i attach the requirement of self-reflexivity onto the criterion. unlike they however, i do not see positionality as a resource for judging the nature, quality and argument of the jurisprudential claims produced from self-reflexive engagement with legal knowledge. my intention is neither to critically evaluate the virtues and potentials of feminist jurisprudence, nor expose or chastise it for its faults. rather, i seek to set it apart from other forms of engagement with law, delineate distinct accounts of positionality within its interiority, and explore alternative paths for understanding the relationship between feminism and law. in this sense i argue that the presence of positionality defines feminist jurisprudence as situated knowledge, and maintain that feminist legal scholarship must make its position towards law known and visible, clearly accounting for its relationship with law how it speaks, thinks of, or imagines it, and how its mode of addressing law is justified epistemologically. hence i see positionality as amounting to more than simply holding a particular view of law, for example, that law is sexist, patriarchal, or gendered, and demonstrating how and why this is so. it must also present such offerings in a self-conscious manner, as if holding ‘a mirror to itself’ (robertson 2002: 785). this means that a certain degree of reflexivity becomes a necessary condition of positionality; for it is through reflexivity that an awareness and assessment of the power relationships present in the encounter of feminist jurisprudence with law, and consequently, of the political nature of this encounter, can be achieved. neither is my use of the trope of positionality exhausted in the choice of what is included in that which i term ‘feminist jurisprudence’. i also employ it as a criterion for distinguishing its different strands. traditionally, such distinctions were made by assigning feminist analyses of law to formal divisions between wider theoretical frameworks, or through reference to the substance of their argument. in the first instance, in a manner similar to the separation of nineteenth century mainstream jurisprudence into ‘schools of thought’, branches of feminist jurisprudence are identified as, for example, marxist, liberal, radical or, most recently, postmodern (jaggar 1983). in the second, following similarities in their method and argument of inquiry, works are gathered under a label referencing a core constitutive element that lends it the name, such as: ‘the master theory/dominance approach’, ‘the jurisprudence of care’ or ‘social harm’ (cain 1990; smart 1991; munro 2007). i myself follow neither the ‘way of schools’ nor groupings according to core elements. the former, in setting theoretical similarities or differences as the primary criterion for ordering, i believe, contributes to the invention of traditions, since in an effort to fit arguments into pre-existing, well-established frameworks, unique specificities can be easily ignored, exaggerated, or lost. similarly, the latter, by focusing on core shared features, almost inevitably causes other valuable details to be overlooked. in fact, i identify two distinct tropes of positionality, each with its own logic animating the way it addresses law. the first is that which identifies itself as ‘feminist jurisprudence’ and, utilising truth as the organising concept in its approach, positions itself towards law as if law were ‘an order of truth’. the second is of my own construction in that it neither entails a uniform approach to law nor would identify with the description of its engagement with law as a form of feminist jurisprudence. here i have included different approaches that have all chosen to explore and position themselves towards law as a productive order. distancing itself from notions of truth, this trope sees law more as involving some sort of performance. permeated by a logic that prioritises notions of ‘creativity’, it engages with law’s imaginings, whether found in law’s practice, language or thought, and, positioning itself towards law as an ‘imagic’ order, understands law as a techné. iii. the anatomy of feminist jurisprudence a) feminist jurisprudence and law as the logic of truth black feminists speak as women because we are women. lorde (1984: 60) i want a law that will let us be women. ashe (1989: 383) from the outset this strain of feminist jurisprudence, often identified with radical and marxist feminist theory of the 1980s, turned its attention first and foremost to the delimitation of its own locus standi and, in so doing, gave a definitive account of the identity of the ‘knower’ and a clear answer to the question of ‘who speaks’ whilst also reflecting upon its own positionality, its mode of engagement with law. this place was one defined by collectivity and thus one from which a clear ‘we’ could be articulated: a ‘we’ that possessed a shared, unambiguous perspective as to what law is and how ‘we’ should engage with it. it was also considered a profoundly political place, since it offered a standpoint from which the recognition of friend and foe was never in doubt. indeed, in no other feminist legal texts is the identity of the ‘enemy’ so transparent and that of ‘friend’, acknowledged with such clarity. true, direct references to the friend/enemy dichotomy per se are not explicit in these writings, with terms, such as sister, sisterhood, or simply ‘women’, being those employed. yet these terms are closely akin to the notion of friend, denoting an all-inclusiveness based on sympathy and affinity; an acknowledgement of a commonality of being and purpose, along with a group belonging, which, by definition, was constituted through the exclusion of others. a place was thus defined from which the voice of feminism spoke to and of law as if finding itself planted in a foreign and hostile ‘country’, rather than sharing a free, neutral territory where detached statements about women, the law and men could readily be made. as such this feminist standpoint of enunciation was one of partiality and ‘self-interest’, with the voice of those speaking it caring nothing for the promotion and defence of the interests of all people, but only for their own, the concerns of women as a specific group (scales 1980: 375; mackinnon 1983: 638, 1989: 83). in choosing as its first jurisprudential act to reveal itself in an act of speaking, feminist jurisprudence also asserts itself as a direct converser of law, one communicating the uniqueness of the voice that speaks, the body that bears it, and the story this voice narrates. acknowledging its organic relation with feminism it embarks upon an audacious jurisprudential inquiry into law’s prudence, setting at its heart the task of “seeing, describing and analysing the ‘harms’ of patriarchal law and legal systems…” (wishik 1985: 66). more specifically, in accounting for its positionality, feminist jurisprudence openly admits that its voice, akin to that of feminism more generally, takes shape, form and strength from all those reciprocal voices of women conversing through ‘practices of consciousness-raising’; the sharing of their distinct, everyday, mundane, and extraordinary experiences. here, amidst the acts of speaking and hearing, and through reflecting upon what initially seemed a conversation between friends seeking to make real sense of their lives, private utterances are transformed into political ones and a political ‘common language’, one capable of articulating the collective reality and truth of women’s lives, emerges (mackinnon 1982: 535-7, 1983: 639, 1991: 14; cain 1990: 193-9; hooks 1991: 8). it is through speaking this ‘common language’ emanating from ‘the woman’s body’ and vocalising ‘the woman’s story’ that feminist jurisprudence addresses and challenges law. it offers a language replete with materiality and thought. for neither the knowledge claims it makes about law nor the rules it sets for its engagement with law can be severed from women’s telling of their experiences of the discrimination, disempowerment or oppression suffered at the hands of law on account of their sex. moreover, it is a language from within whose utterances a new way of knowing and thinking the law unfolds, one in which the epistemological primacy of speaking and hearing replaces the traditional emphasis on a clear division between the knower and known. in valorising the identity of the speaker rather than the language and text of law (those well-established loci of mainstream jurisprudence), feminist jurisprudence not only claims possession of its own distinct way of knowing the law, but also posits the language and mind of law as the primary objects of its critical scrutiny. here a corporeal and situated voice and knowledge is juxtaposed to law’s disembodied and defaced language and knowledge. through its reliance upon knowledge thought and lived, knowledge rooted in the everyday life experiences of women, the language of feminist jurisprudence claims a vitality and plural materiality even though boasting a singularity of standpoint, ‘the woman’s point of view’. in sharp contrast, the language of law, nurtured by the tradition of legal texts and wise men, lacks the vigorous immediacy and temporality of speech. scripted as a language of the intellect, a language of books and thought, its prudence is exposed in the immanent rationality and coherence of its own tradition; in the antiquity of its doctrines and principles, the sophistication of its modes of reasoning and interpretation, the scientific clarity of the categories and terms it uses, and through the logicality of its practices. if logos links law’s life and mind connecting law as speech and practice to law as thought and text it is the sexed body that links feminist jurisprudence’s voice to its thought. and so, before any arguments are made, this ineluctable juxtaposition has already shaped the nature and force of the challenge feminist jurisprudence posits to law. the qualities of abstraction, objectivity and neutrality that are inexorably linked to modernity’s law and its justice are those that comprise the first line of attack. such qualities, feminist jurisprudence claims, are but hollow aspirations of the legal language and empty promises of the modes of reasoning upon which it rests; for there is no un-gendered reality and hence no un-situated legal standpoint. law’s persistent negations of its association with specificity or partiality, together with its assertions of the universal validity of the justice of its judgements, are not only deeply gendered, but, of course, their gender is profoundly masculine. confronted by the ‘common language’ born out of the practice of consciousness-raising and articulated in the mode of ‘thinking as a woman’, these qualities are exposed for what they are; constituents of law’s power and authority, and of a power and authority which participates in the construction and presentation of reality, and hence of women’s reality, from the dominant, the male, point of view (mackinnon 1982: 543, 1983: 636-8; west 1988: 65; finley 1989: 886; scales 1992: 25-6). law’s language, concepts, principles, and method of reasoning and adjudicating are therefore together, but one manifestation, one idiom, through which the relationships of power and domination existing between men and women are established and communicated. and so, in representing the male gaze as universal and objective in short, as a standpoint ‘of view-lessness’law not only denies sexual inequality to be constitutive of social reality, but, perhaps most importantly, is able to present force as consent, authority as participation, hierarchy as paradigmatic order, and control as legitimacy, and thereby shield itself from critique (mackinnon 1983: 636-9; scales 1986: 1385; west 1988: 60; finley 1989: 892-5). what began as a juxtaposition of the vocal and corporeal with the law’s language and mind thus becomes a root and branch attack on law’s claims to truth. for in unmasking what hitherto had been received as the natural and undisputable disposition of liberal law as a patriarchal fallacy, namely its commitment to equality, fairness and justice for all, feminist jurisprudence confronts law as an order of truth. yet what makes this confrontation possible is not a persuasion grounded upon direct references to the social or legal reality of women. it is feminist jurisprudence’s sophisticated epistemology; an epistemology that has passed into the literature as ‘standpoint epistemology’, though which is perhaps more accurately encapsulated by cavarero’s (2005: 14) expression ‘the vocal phenomenology of uniqueness’. it is this phenomenology that authorised feminist jurisprudence to posit itself as an interlocutor of equal status with law, enabled it to avoid simply chastising law for the ills it causes women to suffer, and allowed it to challenge law’s hitherto unquestioned privileged and singular truth by positing its own, alternative one. b) feminist jurisprudence and law as techné ….i think it would be a good think for women to create a social order in which they can make use of their subjectivity with its symbols, images, its dreams and realities…. irigaray (1993: 91) technocratic legal knowledge disqualifies the lifeworld knowledge students bring with them to the law school…. thornton (1998: 382) the individual approaches discussed in this section, although not together comprising a coherent body of thought, do share a common attitude in their stance in respect to law; one which conforms to the criteria i set at the outset, those of positionality and reflexivity. it is this commonality which justifies my discussion of these approaches under a single unifying theme, a distinct trope of ‘feminist jurisprudence’. distancing itself from an understanding of law as an order of truth, this feminist jurisprudence refuses to articulate wide theoretical knowledge propositions concerning the nature of law, its power and claims, and instead posits law as the object of its inquiry. its first distinguishing characteristic is therefore of a cartesian disposition; the sharp distinction between inquirer and the object of her inquiry, with the feminist scholar as subject of the jurisprudential inquiry, and law as its object. feminist jurisprudence of this trope does not enter into dialogue with law, caring not for ‘who speaks’ or ‘from where’. resting, as it does, upon the theoretical priority of the subject, it sets aside epistemological questions concerning the validity of voice, embodiment and personal narration, and instead privileges the thinking and observing qualities of the subject as the grounds upon which her ability to investigate established bodies of knowledge rests. what attracts these feminist scholars’ attention, what fuels their interest in law and gives rise to their relationship with it as one of inquiring subject and object of inquiry, is an understanding of law as a generative order; an order that produces understandings of empirical women. the presentation or, to be more accurate, re-presentation of women in law does precisely this; bringing into being and communicating a certain knowledge about them. and whether the locus of such knowledge is identified with the operation of legal discourse, with law’s performativity, or with the effects of law’s symbolic function, what is invariably at stake, what the feminist scholar contends with, are the projections of womanhood sustained by the legal language and text. because the presentation of women in law is always a form of re-presentation, and therefore always involves a semblance of womanhood, the knowledge thereby produced can be no more than accomplishments of law’s creative imaginings as to what women are. it is this acknowledgement of law’s imagic power, which, in endowing law with imagination and creativity, makes it possible to think of feminist jurisprudence, even if unwittingly, as positioning itself towards law as techné. the idea of law as techné, as ‘craft’ or ‘art’, is in no way new, and is certainly not alien to feminist legal scholarship. the long history of jurisprudence is replete with references to the art of legislation or that of judgment. the realist movement in the united states, for example, adopted this notion of law as one of the key features distinguishing it from legal positivism; with techné here being interpreted in the sense of ‘craft’ (llewellyn 1960: 213-35). constitutive of the definition of techné is an association with a particular type of achievement; a particular telos to be realised. in fact the essence of a techné lies precisely in the uniqueness of this telos in that only a specific set of expertise can enable it to be reached. a singularity of goal therefore distinguishes one techné from another; with each requiring its own technéte, the individual who possesses the skills necessary for achieving the goal. so the success of each depends on the technéte’s clear and systematic acquisition of the requisite knowledge, together with its accurate application. aristotle (1994: 1140.9-10) defined techné as “….the trained ability of making something under the guidance of rational thought”, whilst llewellyn (1960: 221) described it as “….the existence of some significant body of working knowhow…in some material degree transmissible and transmitted to the incomer”. thus a fundamental property of techné is its being founded upon the stock of knowledge the technéte possesses, controls, and is able to effectively impart. that which belongs both to techné and law therefore is not merely the element of creativity: the fact that just as techné is closely linked to the notion of the artifice and the human power of creation, so too is law. the relationship of a technéte with her techné, is also akin to that of the jurist with law, being similarly marked by the rational understanding of a specific body of knowledge capable of transmission coupled with the mastery and control over the articulation and application of this knowledge. both these elements, the recognition of law’s creativity as a knowledge producing order and the scholar as possessor of the necessary expertise to engage with law, mark the approach to law taken by this feminist jurisprudence. the feminist urge to interrogate law’s creativity stems primarily from the identification of this creativity with law’s re-presentational power, and the association of this in turn with law’s normative domain. in short, it is the persuasion that law, in re-presenting women through its norms, also advances knowledge about them. yet the representational function of the legal norm is not only a significant formative parameter in regards to knowledge about women, it also channels the female self to come to know her identity in terms of sameness and difference, and self and other. as such the normative knowledge about women law entails is of crucial importance for the self-apprehension of women as autonomous subjects instead of as the ‘other’ of man. the task the legal scholar sets herself however is not merely, nor even primarily, that of assaying degrees of resemblance between law’s re-presentation of women and that which it represents; in short, the re-presentation’s verisimilitude. hence, the concern with the legal norm feminist jurisprudence exhibits does not manifest a wish to promulgate a politics of legal change aimed at instituting norms defining female identity and subjectivity in a more faithful way. inherent in the idea of the legal norm is a sense of ‘normalisation’ conferring a quality of objectivity upon communicated norms and, in so doing, fixing the definitive contours of female identity. replacing one set of legal norms with another simply substitutes one kind of fixity for another, whilst such local pressures leave the imagic power of law fully intact. it is precisely this power that this strand of feminist jurisprudence seeks to confront (irigaray 1987: 72, 1987a: 1). broadly speaking two jurisprudential modalities can be identified here. the first offers an analysis of the significant political effects law’s power has, in particular with reference to female subjectivity. more specifically, law’s imaginings about women as manifested in the legal norm are seen as something akin to the symptoms of a ‘disease’, the legal system’s continuing commitment to a singular universal and male subject only. law’s persistent refusal to acknowledge the significance of sexual difference and thus the exclusion of the feminine from its body, language and mind, cannot be remedied by a programme of normative reform. however innovative this change may be it cannot ‘cure’ the absence of women as distinct subjects from law’s imaginings simply by transforming it into a presence. this can only occur through a comprehensive project of ‘symbolic change’ (irigaray 1994). yet such a change can never be rooted in a narrative of women’s experience, in the ‘true stories of women’s lives’. it can only be accommodated by the displacement of gender, with sexual difference taking its place. and whether this displacement is associated with changes in law’s performative function, such as those proposed by cornell’s ‘ethical feminism’, or with conceptions of the institution of law as part of the symbolic order to thereby offer changes targeting law’s imagic power in both instances, feminist jurisprudence purports to open up a space for the respect and protection of women as sexed beings (cornell 1993a: 140-6; irigaray 1993). so against the conventional imaginings of law are juxtaposed feminist imaginings; imaginings which envisage a distinctively female identity grounded upon the notion of sexual difference. these are imaginings most usually presented as formulations of a woman’s right to be represented as a sexuate being. thus equal rights are replaced with equivalent rights, whilst other rights acknowledging sexual difference as irreducible, such as the right to virginity, motherhood and guardianship of the home, are demanded (irigaray 1993, 1994; cornell 1992: 235-7, 1998). although my discussion of this jurisprudential modality primarily refers to the work of irigaray and cornell, theirs are by no means the only examples. yet, their work has been of fundamental significance to the development of this area. it has influenced many legal scholars who, like they, have offered their own feminist re-imaginations of the female subject before the law and have posited sexual difference as not only a structural element of the legal system, but also as the one, single indispensable condition for the recognition of woman as a fully human subject, as a subject in her own right. the second jurisprudential modality, ‘discourse analysis’, is of a more pragmatic nature. it concentrates its efforts on understanding the workings of law, its practices, techniques and technologies, and seeks to delineate the manner in which legal norms authorise gendered representations of womanhood. here law becomes a terrain of clearly formulated statements and practices that both systematically create the objects of which they speak and constitute the subject positions from which these statements are made. moreover, these are not objects that are empirically apprehended. they are seen as inventions by law that can be classified, constructed and identified according to specific discursive statements and practices. in a similar fashion, the discursive subject positions under scrutiny do not reference natural persons, for example, real women, but describe representations of womanhood that are effected by the enunciations and practices constitutive of the discursive field. the primary concern of discourse analysis is to illuminate the rules and processes by which law utilises specific rationalities, establishes its ‘truths’ and constitutes subject positions in the interiority of law. in so doing, it seeks to reveal how these rules and processes produce ‘outsiders’, whether these are forms of reasoning denounced as alien to its mind, ‘truths’ deemed alien to its language, or subjects silenced or otherwise made invisible before law’s eyes. this particular jurisprudential modality thus locates the exercise of law’s ‘creative’ power in the function and effects of the impersonal rules operating in the formation and regulation of the discourse. it offers an analysis that produces an anatomy of law’s prudence, which allows the feminist scholar as an expert of law possessing the unique traits required to read, interpret and understand legal practices, to confidently assert law’s representation of female subjectivity as neither natural nor transparent, but as merely one of law’s imaginings. what this jurisprudential modality targets therefore is law’s ability to proclaim what constitutes true or false knowledge about women; in other words, the very production of legal knowledge (smart 1991; chunn and lacombe 2000: 7-12; lacey 2002: 123-8; gottel 2007; fineman 2011; mullally 2011). iv. conclusion or the prudence of law and the prudence of feminism.   …the refusal to accept the closed terrains of conventional thought is an anti-conservative step which hopefully, in the right contexts, can open the domain of law to potentially unthinkable possibilities. davies (1996: 17)   in re-introducing the long-forgotten question of feminist jurisprudence in the manner i have i am aware that i am opening myself to criticism. not only has feminist legal scholarship disowned and disavowed previous feminist engagements with jurisprudence, but the taxonomy i offer here might be seen as rather arbitrary. indeed, neither of the feminist strands i identify as approaching law as techné would likely acknowledge themselves as jurisprudential modes. indeed, this may be the case. yet i would nevertheless maintain that casting the net of jurisprudence more widely across legal scholarship allows us to recapture and reassess the question of feminist jurisprudence. this is not to suggest that i employ the concept merely to finesse this ‘trick’. for the term ‘jurisprudence’ is more than merely a descriptive one. it also bears normative gravity; a gravity which has both shaped the fortunes of jurisprudence within feminist legal scholarship and fuelled my own desire to re-visit the topic as a potentially valuable, if not essential, activity for us to pursue. the very label ‘jurisprudence’, as utilised formally in that work that does unequivocally identify itself as feminist jurisprudence, which mackinnon’s writings most famously epitomise, has received a particularly ‘bad press’ within feminism. critics have roundly attacked and comprehensively dismissed feminist jurisprudence primarily on two grounds. the first is that it adopts an essentialist understanding of womanhood, and the second, which is of greatest interest in the context of this paper, is that it mimics the conventional form of jurisprudence existing in our times, that of positivism. any desire to engage with law’s jurisprudential traditions is portrayed as inevitably succumbing to the temptation to reproduce the very jurisprudence it challenges (smart 1989: 66-9). in aspiring to advance a general theory of law, feminist jurisprudence was castigated for mirroring the positivist mainstream by valorising an understanding of law as a coherent and rational body of knowledge resting upon a priori principles and as a distinct field of practice operating at some distance from society (smart 1989: 66-9). furthermore, critics warning against a feminist jurisprudence argue that those who embark on this venture, even if perhaps unintentionally, necessarily attribute undue significance to law; indeed, even fetishise it. what seems to be at the heart of such critiques is the entirely distinct, largely alternative, conception of law, held by the critic. thus, although jurisprudents and critics alike both speak of law, this, their common object of thought, is not thought of in the same terms. for those who repudiate a jurisprudential approach, law does not comprise a uniform and monolithic body of knowledge bearing a singular ideology, be it male, patriarchal, or sexist. they argue that to confront law in this way obfuscates law’s ‘natural condition’, which often is to behave in an incoherent, fragmented and at times contradictory manner, and that this effectively tears it away from its ‘natural environment’, that is, its social context (smart 1989: 163-5; roach-anleu 1992: 432-4). thus in opposition to the pursuit of what it describes as a ‘false quest’, which thinks of law only in its own terms, thereby transforming the feminist intervention into an exclusively legal debate, these critics pose an analysis connecting law to the social structure; often supporting their position with empirical investigation; what we can term a ‘law and society’ approach (smart 1989: 67). it is to this dissonance that i wish to draw attention because its very presence caused me to think anew about feminist jurisprudence and the unwavering reproach that it has attracted. more specifically, it was the critics’ reference to its unintended alliance to mainstream jurisprudence that led me to consider the debate in terms of the traditions represented by the interlocutors’ arguments rather than the correctness or the persuasion of the substance of these arguments. both the legal scholars and their critics belong to and speak from traditions of thought that conceive of law in their own distinctive ways and therefore each asks a different set of questions. yet, although in their exchanges each speaks from a different position, the question of tradition does not enter the debate. in unequivocally distinguishing itself from the jurisprudential approach to law, the ‘law and society’ approach overlooks its own alliance to the nineteenth century rise of positivism. putting its trust in an epistemology grounded in principles derived from rational thinking and empirically verifiable data, positivism introduced a novel way of understanding law. in asserting the empirical as the locus of truth, it elevated reality as a key measure of this truth such that the validity and utility of social institutions, including law, could only be thought of and evaluated in their social context and in relation to the functions they performed. here, law, though still posited as distinct from society, was recognised as existing in a constant dynamic interaction with it; the result being that this association of law with the positivistic canon served to privilege women’s empirical reality as the yardstick by which to judge the law and lead the feminist politics of legal reform to become the dominant form of feminist engagement with law it remains to this day. in critically juxtaposing the presence of law as a distinct body of knowledge and practice to law in its social context, the critics of feminist jurisprudence too easily dismissed what now has passed into our history as a short-lived feminist experiment. most importantly, they thwarted a concerted feminist engagement with the long standing tradition committed to the study of law’s prudence. what their criticism failed to pay attention to was that law in the western tradition is, and has long been, both a distinct practice and a body of knowledge; in fact a distinct tradition in itself. it is in this tradition, understood in terms of the particular styles, models, patterns and theories, that have shaped and sustained it, that law’s power to oppress, privilege, exclude or include, inheres. and therefore, it is only through close examination of this tradition that the power of law to image the world can be laid bare. clearly, a critical interrogation of law’s prudence does not necessarily have to lead to a reconciliation with or reproduction of that prudence. it certainly does not mean an uncritical, blind acceptance of the limits law puts on its subject matter. rather, it can be seen as an invitation to transgress these limits by setting against the prudence of law, that of the feminist jurist. indeed, whether addressing law’s prudence face to face, as the first trope does, or positing law as the object of its thought, as does the second trope, feminist jurisprudence in all its guises has already accepted this invitation. thus the first trope, by privileging the question of ‘who speaks’, allies its critique and politics of law to an embodied ontology based on the method of consciousness-raising and, through this material relationship, challenges the prudence of law, revealing it to be nothing more than a male metaphysics. similarly, of the two jurisprudential modalities under the second trope, one reveals law’s philosophical and juridical traditions to be structured by the exclusion of the feminine, whilst the other exposes law’s practices and techniques to function as technologies of gender. whatever the substantive and specific merits of each of these feminist encounters with jurisprudence, my contention is that they all have come into being as responses to specific theoretical and practical questions facing feminist legal scholarship. all have been formulated through critical reflection on law’s continuing resistance to any change in its conduct towards women despite feminism’s persistent analysis of its norms and suggestions for their reform. in short, they all distinguish themselves from the ‘women and law’ approach aimed at inserting or repositioning women within a space already delimited by law. similarly, in a self-reflexive manner, in their meeting with law’s prudence they all acknowledge the traditions they ally themselves to. and whether they see it located in the words of law, in the entirety of its body, or in law’s practices and techniques, they all, when setting off on their explorations of law’s imagic power, dream of the birth of novel feminist jurisprudential traditions founding a different law and justice for living together (mackinnon 1983: 640, 1987: 1-17, 215-28; smart 1990, 1995; irigaray 1996: 52-3; cornell 1998: 174-86, 1999). in reframing the question of ‘women and law’ as one of the law’s imagic power and ‘our living together’, as a question lying at the intersection of the juridical and the political, these jurisprudential approaches may be better conceived of as meditations on theoretical and practical concerns with law rather than expositions of feminist legal theory. it is this double nexus of the theoretical and practical marking this body of work, which justifies their recognition as articulations of a feminist prudence and confers upon them the label of ‘jurisprudence’. what i hope to have achieved with this paper is to bring to light what was latent in feminist legal scholarship and ask for it to be openly acknowledged. feminist jurisprudence has undoubtedly initiated the most audacious projects we have attempted hitherto. in reflecting upon its aspirations rather than its faults, we feminist legal scholars should stop shying away from it and indeed dare to rehabilitate it. it is my contention that it is only when we boldly assert our commitment to such a project that we will be able to address the power that inhabits the prudence of law. and even if in challenging this we admit it to be nothing more than that of an invented tradition, our working both ‘with’ and against this tradition will enable us to think afresh 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(1991). feminist jurisprudence, in p. fitzpatrick (ed.), dangerous supplements. pluto press: london. smart, c. (1995). the woman of legal discourse, in c. smart, law, crime and sexuality: essays in feminism. london: sage. stein, p. (1999). roman law in european history. cambridge: cambridge university press. thornton, m. (1998). technocentrism in the law school: why the gender and colour of law remain the same. osgoode hall law journal 36: 369-398. twining, w. (2009). general jurisprudence: understanding law from a global perspective. cambridge: cambridge university press. valerius maximus (2000). memorable doings and sayings. loeb classical library, cambridge, ma: harvard university press. veitch, s., christodoulidis, e. and farmer, l. (2012). jurisprudence: themes and concepts. london: routledge. west, r. (1988). gender and jurisprudence. university of chicago law review 55: 1-72. wishik, h.r. (1985). to question everything: the inquiries of feminist jurisprudence. berkeley women’s law journal 1: 64-77. * reader in law, kent law school, university of kent, uk. � hyperlink "mailto:m.drakopoulou@kent.ac.uk" �m.drakopoulou@kent.ac.uk� � for a discussion of the difficulty of precisely defining the term ‘jurisprudence’, see cotterrell (2003: 1-3) and freeman (2008: 1-6). � aristotle identifies intellectual virtues with forms of wisdom necessary for correct thinking and action, and sees them as being acquired through teaching. in contrast, he considers moral virtues as qualities of character acquired almost intuitively through habit and practice, and which lead the virtuous person almost instinctively to choose and act well. � for the rise and history of jurisprudence as a distinct domain of knowledge generally, see kelley (1990: 41-7) and pound (1959: 28-42). in regards to the time of the republic, see pantazopoulos (1968: 18-28) and schiavone (2012: 31-41 and 112-27). � the roman jurists as a class were clearly distinguishable from those who practiced law by giving legal advice on clients’ requests (cicero 2000: i.iv.14). the first foundational text of roman jurisprudence appeared in the first century b.c., and is a systematic account of the juris civilis attributed to quintus mucius scaevola. for a discussion of scaevola’s achievement, see schiavone (2012: 177-95). for a more general discussion of the rise of the roman jurists, see stein (1999: 12-22) and harries (2006: 27-50). � this openness was sustained through what has been described as ‘a revolution-in conservation’. this involved adapting the jurisprudence of the republic to the specific needs of empire (schiavone 2012: 316-7). � the oed gives the earliest date as 1628 in the writings of edward coke. “for a farewell to our jurisprudent, i wish unto him the gladsome light of jurisprudence”. � starkey’s call for the reception of the roman law in england was not the only one. for a discussion of such calls, see helgerson (1994: 73-8); goodrich (1990) and coquillette (1981). for a discussion of the classical learning of english jurists, in particular of coke, see boyer (1997). � i have borrowed the notion of ‘failed history’ from the work of goodrich. for his discussion of the significance of the recovery of such histories and their critical potential, see goodrich (1990: 43-50). � for a detailed discussion of the concept of the ‘artificial reason of law’, see postema (2003: 1-11) and grey (1980). � it has been argued that this insular jurisprudence was a result intended by the jurists of the time who, in committing to a project of consolidation of nationhood, resisted the ‘romanization’ of common law (helgerson 1994: 70-3). � for a discussion of the rise of these schools and the context in which this occurred, see kelly (2004) and veitch et al. (2012). � for example: douzinas, warrington and mcveigh (1991); davies (1996); and, douzinas and geary (2005). in the early twentieth century the realist school also posed a significant, though short-lived, challenge to positivism, but its influence was limited to north america and the scandinavian countries. for a discussion of legal realism, see cotterrell (2003) and veitch et al. (2012). � see, for example, twining (2009). � no doubt this is a project of importance waiting to be undertaken, with some evidence to justify it. there are, for example, references to female orators in rome in valerius maximus (2000: 8.3), whilst goodrich (1996: 29-71) has unearthed a feminist jurisprudence exercised over the affairs of the heart in medieval france. � for a useful historical exposition of the rise of feminist jurisprudence, see littleton (1987). � particularly in the nordic countries, and especially norway. see for example dahl’s (1987) attempt to develop ‘women’s law’. � for an attempt to substantially engage with the question of feminist jurisprudence that does more than simply present it or argue for or against its presence, see lacey (1998). � for a discussion of earlier feminist critical responses to law, see drakopoulou (2000). � for one of the earliest elaborations of the concept of positionality and that of situated knowledge, see haraway (1991: 183-201). positionality, perhaps because of its spatial aspect, was particularly closely theorised and discussed in relation to fieldwork undertaken by feminist geographers. see for example the extensive discussions by rose (1997) and by nagar and geiger (2007). � for a more detailed discussion of this approach to law, see drakopoulou (2013). � see the discussions by drakopoulou (2000a) and grabham et al. (2009). � it is remarkable how, even if the presence of the schmittean distinction friend/enemy does not occur in feminist writings per se, they may be seen as grounded upon schmitt’s understanding of the political (see schmitt 2007: 66-7). although the understanding of ‘the political’ and politics of radical feminism explicitly derives primarily from marx and althusser, its rhetoric is close to a schmittean understanding. see the discussion of these terms in mackinnon (1989: 157-9). for a discussion of the concept of the political generally and specifically in schmitt, see marchart (2007: 35-55). � on the close relationship between feminist theory and feminist jurisprudence epistemologically and otherwise, see wishik (1985: 64-7) and robson (1990). � perhaps the best example of this is provided by mackinnon (1987) where she presents her views on life and law in a series of speeches. � this concern with the question of what law is and its approach from the standpoint of the speaker is evident in a number of key papers of the time. see, for example, finley (1988, 1989), scales (1986), and, of course, mackinnon (1983). � the voice has been associated more with the body, immediacy, etc.: see arendt (1998: 181-8), barthes (1985), and cavarero (2005). see also mackinnon (1987), the spirit of the introduction and, in particular, pp 1 and 16-17. � in fact, mackinnon (1983: 638) calls this reason of male dominance ‘metaphysically near perfect’. � for cavarero, narration that takes place in ‘consciousness-raising groups’ allows the self to be constitutively exposed to the other, something she identifies as a political exposure. what is central in such narrations is not the question of ‘what a woman is’, which can only lead to abstract and universal definitions, but rather ‘who speaks’, which valorises plurality and relationality. cavarero, following arendt, argues that understanding the notions of person/subject in the abstract through subsuming them in the already philosophically established linguistic categories, is not the only way. instead, she valorises an understanding of the person as a unique, particular existent that can only be revealed through the narration of that person’s life story. it is in this context that voice becomes a significant element of personalisation as she seeks to understand narration from the perspective of the voice she conceives of as always embodied, rather than the language. for further discussion, see the excellent introductions by kottman in cavarero (2000, 2005). � there are sporadic references to this kind of creativity of law. see, for example, schultz (1992: 322-4) and deutscher (2000: 72-3). � the word techné is a transliteration of a greek term originally meaning skill and the correct method of producing a thing, and etymologically linked to the verb tekto, which means to bring to life, to produce, create, to cause something to happen. � in ancient greece the notion of techné was closely linked to that of wisdom, at least up until plato (angier 2010: 5). in hellenistic philosophy, especially the stoics, techné was associated with philosophy and the art of living (sellars 2003: 68-75). for a discussion of techné in ancient greek literature, see angier (2010: 1-12). for a discussion of law as ‘craft’, see scharffs (2001). for a feminist discussion of the ‘art and craft of writing judgments’, see rackley (2010: 44-56). � the significance of a women’s narrative for addressing women’s exclusion from law has been forcefully supported in the work of robin west (1988). see also cornell’s critique of west (1993). � for discussion of the parallels drawn between the work of irigaray and cornell, see schwab (1996), deutscher (2000) and grosz (2008). � see for example porter (2000) and the papers in heberle and pryor (2008). see also the collection of papers published by the milan women’s bookstore collective (1990), especially pp 60-80. � for a comprehensive discussion of discourse analysis, see goodrich (1987). � see, for example, the critiques of mackinnon in smart (1989: 76-82) and cornell (1993: 96-111). � this is not to suggest that smart subscribes to this approach. i simply want to point out that her critical arguments directed at feminist jurisprudence can be seen as part of this approach. � for further discussion of the value of empirical work in feminist encounters with law, see currie (1992: 82-6). � for a discussion of the rise of different schools of positivism in the nineteenth century, see giddens (1979: 237-59). for an analysis of the relation of positivism to a feminist politics of legal reform, see drakopoulou (2008: 344-7). � this is not to suggest that feminist jurisprudence, in whatever guise, has no concern for the social. i simply want to emphasise that the social is not constitutive of their analysis of law. � for an exposition of different ways in which feminist legal scholarship can engage with the legal tradition, see the papers in the collection by drakopoulou (2013a). � in relation to the first trope, see for example the analysis of law in irigaray (1987, 1994). for a classic discussion of the notions of technology and technology of gender, see foucault (1988) and de lauretis (1987). see also the analysis of law as a gendering practice in sheldon (1993) and smart (1995). � this approach, which posits the empirical woman and her experience as the yardstick against which feminist demands and critiques of law are to be measured, is intimately linked to the ‘law and society’ tradition and therefore was also made possible by the nineteenth-century epistemological prevalence of positivism. for a discussion of the rise of this approach in the nineteenth century, see drakopoulou (2008). � the etymology of the word theory, from the greek theoria, designates a contemplative enterprise and as such is usually thought of in ‘passive’ terms, bereft of pragmatic concerns involving judgements about a course of action. within feminist scholarship the term ‘theory’, though widely used, has rarely been the object of inquiry or debate. one exception is bottomley (2000). � throughout its history the intellectual virtue of prudence has been associated with its aristotelian definition as practical wisdom similar to the knowledge and skill required by techné in that they both utilise knowledge to determine and guide action (aristotle 1994: 1140). for a discussion of the notion of prudence in the renaissance, see khan (1985: 19-54), and for one that associates prudence and legal interpretation, see gadamer (2004: 306-19). � for a discussion of the sort of questions we might wish to ask of law as feminist jurisprudents, see genovese (2013). _____________________________________________________________________________ 18 _____________________________________________________________________________ 17 elizabeth peel, hannah jh newman gender’s wider stakes ______________________________________________________________________________________________________________ feminists@law vol 10, no 2 (2020) ______________________________________________________________________________________________________________ gender’s wider stakes: lay attitudes to legal gender reform elizabeth peel and hannah jh newman[footnoteref:1]* [1: * elizabeth peel, associate pro vice chancellor (doctoral college) and professor of communication and social interaction, school of social sciences and humanities, loughborough university, uk; email e.peel@lboro.ac.uk; twitter @profpeel. hannah jh newman, research associate, school of sport, exercise, and health sciences, loughborough university, uk; previously research associate on the future of legal gender (flag) project; email h.newman2@lboro.ac.uk; twitter @hannahnewm. with grateful thanks to the participants at the flag colloquium (june 2019) for their helpful discussion, to kath browne and shona hunter for their interesting commentaries, and to the rest of the project team for their insightful comments on an earlier version. this article is based on research conducted as part of the esrc funded project, “the future of legal gender”, award number es/p008968/1.] abstract the future of legal gender (flag) project is interested in examining the implications, for a wide range of stakeholders, of changing how legal sex/gender is regulated in england and wales. in this article, we explore the views of ‘the wider public’ as manifest in responses to our ‘attitudes to gender’ survey (n=3,101), which ran in october to december 2018. generally, respondents were invested in the status quo regarding a binary two-sex registration of gender close to birth. we discuss this finding with reference to cisgenderism and endosexism, focusing particularly on being critical of ‘gender’ and foregrounding biological sex, and views for and against self-identifying gender. in tandem, we also provide a critical commentary on the methodological positives and pitfalls associated with online survey research on a ‘topical’ issue. we suggest that cisgenderism could provide a less individualised framework for understanding different people’s hopes and worries with regard to both the current legal gender framework, and the possibility of reform. introduction we are living in a cultural moment when, on the one hand, fault lines around gender are being contested, and on the other the very ground of what constitutes a progressive or regressive stance on gendered identities is shaking (ellis, riggs and peel, 2020). gender related rites of passage, such as the north american ‘gender-reveal cake’ party that typically happens when the foetus is in utero, according to some are ‘losing popularity because they fetishize babies’ genitals and underscore outdated social constructs of gender roles’ (severson, 2019). there is both a revival in second wave feminist practices of ‘raising children without gender stereotypes’ (mackay, 2018), and a ‘theybe boom’ of gender neutral, open or creative parenting which aims to decouple gender from sexed bodies or erase gender entirely. people’s attitudes towards gender holistically, and legal gender in particular, have not been well researched and as such parallels need to be drawn to allied areas. attitudes towards transgender, gender diverse, and/or gender nonconforming people are arguably underpinned by broader attitudes and understandings of what sex and gender are and how either, or both, are determined. understandings and experiences of gender and/or sex have been shown to develop from a young age. research in schools in australia (callahan and nicholas, 2019), for example, has demonstrated the everyday and implicit means through which hierarchical gender binaries continue to be perpetuated. this research suggests that gender binarism continues to be (re)constructed and reinforced through subtle invocations of gender, continuing to encourage children into binary gendered practices in their most formative years (wingrave, 2018). similarly, halim (2016) presented evidence that early childhood is a normative time for gender rigidity across many domains, including appearance, play, peer preferences, and intergroup gender attitudes. halim theorised that these cognitions motivate children to engage in self-socialisation as they strive to adhere to gender norms. although the literature in this area is not as well developed as attitudinal research focusing on views about lesbians, gay men and bisexual (lgb) people, there are some studies examining attitudes towards (mostly) transgender people/rights (e.g., antoszewski et al., 2007; flores, 2015; harrison and michelson, 2019; norton and herek, 2013). some research suggests that personal contact with lgb people can positively correlate with support for trans people’s rights (tee and hegarty, 2006) – namely an interpersonal contact ‘secondary transfer effect’ (norton and herek, 2013). flores’ (2015) study examining public attitudes towards transgender rights in the usa found that respondents who reported being more informed about transgender people tended to have more supportive attitudes. this study also suggested that interpersonal contact with someone who is lesbian or gay also leads to a secondary transfer of positive attitudes towards trans people.[footnoteref:2] the question though, is how might this mechanism of attitude generalisation work in the context of the current polarised debates in the uk, in which there is an established presence of gender critical[footnoteref:3] feminists, whose views largely contradict those of trans advocates, within lgbt+ communities. thus, if a heterosexual person who holds gender critical views has interpersonal contact with an individual who is lesbian or gay, then it would be reasonable to suggest that the secondary transfer of positive attitudes towards transgender people would be unlikely to occur, perhaps due to a lack of the extended contact hypothesis (i.e., friendships across groups, zhou et al., 2019) or an active unwillingness to engage positively with trans people. as is the case with attitudes towards lesbians and gay men, cisgender[footnoteref:4] men are less supportive of transgender rights than cisgender women (antoszewski et al., 2007; harrison and michelson, 2019). but again, this picture might be complicated by gender critical feminists largely being cisgender women. [2: this is based on the very well established social psychological concept of the contact hypothesis, which in its simplest terms means that contact between in-group members (e.g., heterosexuals) with out-group members (e.g., lgb people) will improved attitudes towards the out-group and reduce intergroup prejudice (e.g., see allport, 1954; dixon et al., 2005; zhou et al., 2019).] [3: a gender critical perspective is the view that gender, especially a felt sense of gender identity, either doesn’t exist or is less important than there being two groups of people differentiated by binary sexed characteristics that society treats unequally.] [4: we use the term cisgender (as opposed to non-trans) throughout to refer to people in (or assumed to be in) normative sex/gender categories for two main reasons. first, while acknowledging there is some feminist objection to applying the term cisgender to those who do not actively claim the term or accept a cisgender/transgender binary we feel that the comparison that shona hunter (this issue) makes to whiteness as an unmarked category typically not ‘seen’ has validity in this context. a similar analogy can be drawn with the label heterosexual or straight, which is commonly applied by ‘non-heterosexual’ researchers (e.g., see ellis, riggs and peel, 2020) but not necessarily claimed by the majority group, and in some cases actively resisted by feminists and others (e.g., see wilkinson and kitzinger, 1993). second, and relatedly, when quoting survey participants and labelling them with their demographic characteristics, we have used the term cisgender for those who answered ‘yes’ to the question ‘does your current sex/gender match the sex you were given at birth?’ because we did not want to have marginalised sex/gender identities marked whilst normative ones remained invisibilised (e.g., female versus trans female).] the position of gender critical feminists is that the use of the term ‘gender’ rather than ‘sex’ is problematic because ‘it obscures the existence of persons, women, who are biologically female, and their particular interests’ (jeffreys, 2014: 43). they are critical of gender identity – a person’s internal and individual experience of gender, which may or may not normatively connect with the sex assigned at birth – largely because they view it as dismissing biological sex, which they see as the basis on which women are subordinated.[footnoteref:5] jeffreys (2014: 43) argues that degendering ‘disappears biology and relegates it to history’. cooper (2019) refers to this position as the ‘gender as sex-based domination’ view; whereas, the contrasting perception of gender she labels the ‘gender as identity diversity’ perspective. this too is a useful lens for interpreting the views expressed within the flag survey data. as we will see in the following section the ‘gender critical/gender as sex-based domination’ perspective was well represented in our survey data. [5: it is important to recognise that some feminists are critical of this formulation of gender because of the positive and/or benign emphasis on gender as an identity rather than an inescapable power relation. thanks to davina cooper for reminding us of this point.] the central problematic explored within the flag project is one of the decertification of legal gender but not in polarised terms. as davina cooper and robyn emerton write: ‘flag focuses on a version of decertification between…two poles’ (see further cooper and emerton, this issue). the aspect of the project that we explore in this article shares that same ethos and approach. we recognise that there is a plurality of feminist perspectives both within and across different feminist standpoints and concepts (e.g., lesbian feminism, ellis and peel, 2011; intersectional feminism, carastathis, 2014). we also recognised that there is potential for different forms of feminism to be simplified and/or recast in different ways for ends which may not be feminist (e.g., knott-fayle, peel and witcomb, in press), and that representing ‘the other’ has been a subject of much feminist debate itself (e.g., wilkinson and kitzinger, 1996). within our own field, feminist social psychology, there was much discussion in the 1990s foregrounding the diversity in feminist perspectives and the caricaturing of some. diane richardson’s (1996: 195) point about radical feminism being ‘continuously held up as the “bad fairy” of feminism upon whose supposedly narrow shoulders all the ills and failures of feminism can be heaped’ holds contemporary resonance. although with respect to the proximate context of the feminist, and other, perspectives our flag survey ‘captured’, the “bad fairy” is perhaps the fact that the full range of perspectives weren’t made visible,[footnoteref:6] and therefore our empirical discussion invariably coheres around a limited number of poles. [6: this is in part a data collection issue because the notion of agreeing/disagreeing with a statement doesn’t allow space for much nuanced discussion, unless someone has taken the time to explain their perspective in more detail in a free text box. those taking a gender critical perspective and/or those taking objection to our use of language or the phrasing of question dominated the free text responses for most statements in this survey, see appendix. ] as we go on to explore in more depth below, we suggest that cisgenderism is a useful conceptual framework to interpret our empirical findings. cisgenderism is the ideology which undermines individuals’ own understandings of their genders and bodies; it is ‘the assumption that assigned sex determines gender [and] [t]he assumption that there are only two genders’ (ellis, riggs and peel, 2020: 290). cisgenderism can be manifest in various ways, including: a lack of official recognition of sex/gender diversity in social, medical, and legislative contexts (e.g., ‘male’ and ‘female’ as the only option on forms); pathologisation of sex/gender diversity (e.g., treating intersex variations as biological anomalies; treating trans as a gender disorder); and misgendering (i.e., using gender pronouns that do not reflect how people understand their gender). (ellis, riggs and peel, 2020: 199, our emphasis). when we consider debates about how gender should or could be regulated these are often either rather polarised (e.g., trans advocates versus gender critical feminists) or cohere around particular settings or contexts (e.g., access to toilets, or elite sports regulation) (norman, sharpe, freedman et al., 2018). the ‘attitudes to gender’ survey aimed to capture both people’s everyday understandings of sex and gender and their thoughts on legal gender and the potential for reform (cooper and renz, 2016; cooper and emerton, this issue). thus our aim was two-fold: 1) to explore reforming legal gender status, focusing on england and wales, drawing on the views of the wider public; and 2) to understand different people’s hopes and worries in relation to both the current legal framework and different approaches to legal reform. online survey method and process in our ‘attitudes to gender’ survey we asked questions about gender in everyday life as well as legal gender. (the survey is reproduced in full in the appendix.) we chose to develop the survey questionnaire ourselves rather than use pre-existing measures (e.g., the social roles questionnaire, baber and tucker, 2006) so we could ensure the survey mapped well onto the overall aims and objectives of the project. the survey ran from october to december 2018 in partial overlap with the uk government’s public consultation on potential reform of the gender recognition act 2004 (gra) in england and wales.[footnoteref:7] we received 3101 usable survey responses. in terms of legal gender, overall this sample of respondents (which was opportunistic so cannot be claimed to be representative of opinion in england and wales) did not show appetite for changing the current two sexes registered close to birth approach (cf. cooper and emerton, this issue). [7: we discussed the pros and cons of conducting the survey at this time and concluded that the public consultation would increase, as well as shape, the number of responses.] just under 56% (n=1,729) ‘strongly disagreed’ or ‘disagreed’ with the statement that ‘the british system for assigning male/female at birth should be reformed’, primarily on the basis that the current system works for the majority. some respondents objected to the wording of the statement itself – an issue we return to below – providing comments such as ‘the term “assigned at birth” is simply wrong. sex is observed and noted as a fundemental [sic] immutable biological characteristic, like the sun rises in the east and sets in the west!’. in contrast, the scottish government’s earlier consultation on reform of the gra found a greater appetite for reform with 60% agreeing with the proposal to introduce self-declaration for legal gender recognition (scottish government, 2018). before we go on to explore the diverse interpretations of the statements within the ‘attitudes to gender’ survey, it is worth saying more about the particular moment in which these data were collected. as we said, the gra consultation was happening, and therefore the regulation of the legal status of trans and gender diverse people was high in public consciousness. and more broadly, many claim now[footnoteref:8] is a ‘critical period around gender’ as, especially with regard to sex and/or gender as binaries, ‘the language is contested’ (davidson, 2019: 47). given the length and complexity of our survey, this heightened public consciousness was beneficial in that we gained far more responses than we had anticipated, and with a high degree of detailed engagement with the free text questions. [8: in emphasising the current nature of these debates we are particularly doing so in a pre-covid19 context.] there was also the option to comment on opinion statements (e.g., ‘people who are not born male are disadvantaged’; ‘identification as male/female should be removed from birth certificates’). so respondents were able to expand on their rating scale view if they wished, and some commented on this opportunity directly – ‘great use of free text spaces to explain answers’. we have found this a fruitful approach in previous research (e.g., harding and peel, 2007) as it allows respondents to explain their attitudinal choice (i.e., from strongly disagree to strongly agree) which encourages survey engagement at the time, and later helps with interpreting quantitative data. social media platforms, especially twitter, played a significant role in the dissemination and spread of awareness of the survey. we promoted the link to the online survey via the project’s twitter handle (@futuregender) and our personal twitter accounts. emails were also sent out promoting the survey to numerous different off-line groups with an interest in gender, law or equality. early in the survey recruitment period a thread on our survey appeared on mumsnet, an online platform which appears to favour ‘gender critical’ perspectives (forstater, 2019). the initial post on mumsnet under the ‘feminism chat’ heading was entitled ‘attitudes to gender a survey being used to write a new gender bill in the uk’ (21 december 2018, our emphasis) and attracted 90 posts. the way in which the survey was framed in this online space, plus the comments written by those who reported completing the survey via this platform, would suggest that engagement from women with a gender critical perspective was greater than might have been generated from our broader-based survey recruitment plan. virtual platforms such as mumsnet were mobilised a number of times during the recruitment window for the survey. cooper (2019) has referred to current gender debates as ‘a very binary drama’ and there was evidence of polarised binarisms within the survey respondents themselves with references made to ‘mumsnet brigade’ and ‘transphobic bigots’ on the one side, and ‘transgender activists’ on the other. one respondent reflected on the engagement from certain stakeholders as a ‘transphobic deluge from mumsnet and a “woman’s” place who have a coordinated campaign to skew this study’ (trans female, 49, lesbian). in terms of the overall profile of the respondents, most were resident in england and wales (75%), and most were legally female (73%). we tried to increase the number of male respondents, through promoting the survey to men’s groups and by saying we particularly wanted male respondents on social media platforms but these targeted recruitment efforts were largely unsuccessful. similarly, attempts to increase responses from other under-represented groups did not make a marked difference to the make-up of the final sample. 15% did not identify with the sex/gender they were given at birth, most identified as feminist (67%, n=2066) and nearly half the sample reported holding left wing political views. the median age of respondents was 40 (ranging from 18-82 years). further detail about the demographic characteristics of the sample can be found on the project website at: https://futureoflegalgender.kcl.ac.uk/findings/ how opinions were conveyed in the survey was quite often confrontational and challenging. respondents contested many of the opinion statements and also contested the aims of the research and, by extension, our competencies and capabilities as researchers, for example: ‘the people behind it have such strong biases that i doubt anything good or useful will come from it’ (cisgender male, 67, heterosexual). we experienced complaints made to our universities about the research, which again demonstrates the depth of feeling at the time about the issues this project touches on. people have ideological investments and political stakes in both the production and consumption of research. in our view it is not achievable or desirable to aim to strip investments and stakes from research practices, and it would be disingenuous to claim that, in this case, a survey could discover an objective truth. indeed, as previously mentioned, the language around this topic is currently heavily contested, and so using language in the survey that would be agreeable to all stakeholders could be deemed the impossible task. comments about why people rated the opinion statements as they did are fascinating. here is one example to illustrate the point. as a feminist project it would have been remiss of us not to ask about attitudes around gender-based structural inequality, so one statement read: ‘people who are not born male are disadvantaged. (please explain your choice if you wish)’. below are three responses (in no particular order) that are illustrative of the diversity of views: 1) ‘don’t know’, with the explanation ‘what does “born male” mean. i think you mean “assigned male at birth” ...or do you? absurd question’ (cisgender female, 43, lesbian, intersex); 2) ‘strongly agree’, with the explanation ‘it is extremely offensive to call people “not male” the word you are looking for is [sic] female. it is erasing the sex class of female to call this group “not male” it would be offensive and unacceptable to call black and minority ethnics groups ‘not white’. in the same way this is offensive (cisgender female, 35, heterosexual); 3) ‘neither agree or disagree’, with the explanation ‘the premise of this question is transphobic and cisgenderist’ (cisgender female, 48, lesbian). for online survey research, is it problematic when the status or legitimacy of the quantitative response is undermined by an explanation that challenges the premise of the question; for example, criticising a statement because of an objection to the use of the word gender (rather than sex) rather than simply responding to it on its own terms? or research participant objection to the wording of statements or questions in surveys could in fact be commonplace, and not specific to this topic. a ‘typical survey’ would not usually give respondents opportunity to comment on the wording of a statement they are being asked to rate on a scale from strongly agree to strongly disagree. for instance, in engaging with a statement such as ‘single use plastics cause climate change’, a respondent may wish to qualify their response by questioning the singular causation, and suggest instead that the phrase to be used is ‘contribute to’ rather than ‘cause’, but there would not be a mechanism within the survey to do this. in other words, objection to the construction of survey questions may be common but not expressible. perhaps the person could raise this if there was the opportunity at the end of a survey for any general comments, but likely the respondent may be less motivated to raise a specific point later on. as well as comments on individual statements, over half (n=1516) of the respondents provided feedback on the survey as a whole. interestingly, those who completed the survey often offered a view on what stake or agenda of ours could be inferred from the questions.[footnoteref:9] again these comments were diverse, and sometimes accusatory. for instance, the five excerpts below are good examples of us being positioned as having an ideological investment in a side of the current debate – as both ‘anti trans’ and ‘pro trans’: [9: one of the anonymous reviewers commented: ‘some participants appear to call for positioning by the researchers… absent of a clear position, the paper itself contributes to the obfuscating of the importance of positionality’. our view is that our positionalities (even assuming they’re shared and static) are less interesting than how they were created by the survey respondents. how we were formed through the process of hearing about, accessing and completing the survey, which we concern ourselves with, says far more about the relational construction of identities than us positioning ourselves. thanks to kath browne for helping us articulate this. ] 1) ‘i find the questions misogynistic, homophobic, interphobic and most worryingly encouraging of child abuse...you have no respect for the 99% of the population who do not follow trans ideology’ (cisgender female, 25, heterosexual); 2) ‘it quite clearly is one more effort to push the gender agenda, so transparent (no pun intended) and clearly needs to stop as it is oppressive to women and girls’ (cisgender female, 27, heterosexual); 3) ‘very leading questions, leading towards a ‘gender-critical feminist’ or terf[footnoteref:10] viewpoint’ (nonbinary female, 29, bisexual, queer); [10: terf is an acronym standing for trans exclusionary radical feminist.] 4) ‘the survey is biased and leading in how it is written and is being filled out by transphobes in their droves so it will no doubt achieve the biased anti trans results it is aiming for’ (nonbinary, 47, asexual/bisexual); 5) ‘there is cisgenderist language throughout. i have marked some’ (cisgender male, 37, gay). our research team has some diversity – in terms of genders, sexualities and feminist politics – and the project is not seeking to support a ‘side’ in this ‘very binary drama’. the rhetorical aspects of these comments are interesting, especially the use of scientific terms to discredit the assumed goal of objectivity in the survey: note the references in comments 3 and 4 to ‘leading questions’ and being ‘biased’ (see also kitzinger, 1990; clarke, 2000). that our survey was ‘marked’ (comment 5) also functions to construct a lack of credibility, and being labelled as prejudiced and ‘encouraging of child abuse’ (comment 1) is again aimed at discrediting the research. having said this, there were more positive comments made about the survey – such as ‘extremely interesting/challenging and well-structured’, ‘very thought provoking which is good’, and ‘it’s given me a lot to think about. thank you’. we can see, then, that there are both positives and pitfalls in the online survey method that we initially deployed to understand lay perspectives on legal gender. (we also later recruited participants to provide audio-visual and written reflections on gender, and have conducted semi-structured interviews with members of the public too.) before engaging in more depth with our survey data regarding perceptions of sex/gender and ‘hopes and worries’ in relation to potential law reform, we next discuss cisgenderism as a conceptual framework to enable us to interpret these data. we discuss the gender critical perspective, and proand anti-gender self-identification views in these data. we suggest that cisgenderism and endosexism (a non-intersex perspective) help explain the emphasis on adhering to the status quo, namely retaining two – and only two – legal genders and other binary modes of regulating and recognising genders. findings: favouring the status quo and cisgenderism cisgenderism is a comparatively new concept, connected to the earlier term ‘bigenderism’ (gilbert, 2009: 93) though more expansive than ‘only two genders ... correspond[ing] with the two sexes, male and female’. a cisgenderism framework was first developed and applied by y. gavi ansara and peter hegarty (2012) in their empirical examination of the construction of the psychology literature focusing on children. given cisgenderism is ‘the ideology that invalidates people’s own understandings of their gender and bodies’ (ansara, 2015: 14; ansara and hegarty, 2014) a legislative framework which inscribes and retains a binary model of sex/gender in the face of a plethora of individual understandings of sex/gender is de facto cisgenderist. ansara (2015: 15) discussed five forms of experiences of cisgenderism which do not connect directly to legislative frameworks, but nevertheless contextualise the wide-ranging impacts of gender-related delegitimisation: 1. pathologising – characterising a person’s gender(s) or non-gender as disordered or problematic; 2. misgendering – characterising a person’s gender(s) or non-gender in a way that is inconsistent with their own understanding of their gender; 3. marginalising – excluding or imposing saliency on dimensions of a person’s gender(s) or non-gender such as their history, experience, identity, expression and/or characteristics. treating their gender(s) or non-gender as strange or ‘fringe’; 4. coercive queering – imposing an ‘lgbti’ or ‘queer’ label onto women and men of trans experience who live as and identify as heterosexual, assuming that people of trans experience have identical needs and experiences to people in same-gender relationships;[footnoteref:11] 5. objectifying biological language – using language that describes another person in terms of their assumed physical characteristics, where another person would typically be described by their gender. [11: presumably coercive un-queering also forms part of cisgenderism (e.g., a butch lesbian being assumed to be a heterosexual trans man) although this isn’t discussed in ansara (2015).] whilst ansara’s five forms emphasise experiences, in the context of the flag project, we see the more structural aspects of cisgenderism as particularly useful because these allow for a less individualised and/or group focused approach. cisgenderism also offers scope for drawing parallels to, and creating greater parity with, other analogous frameworks of privilege and marginalisation (e.g., heterosexism, sexism, racism, endosexism). (see further hunter, this issue, on connections between cisgenderism and racism.) endosexism, or an endosexist perspective, is a non-intersex view. it is a less widely known term which aligns with intersex activism and critical perspectives on intersexuality (holmes, 2016). endosexism is pertinent to our analysis for two main reasons. first, similarly to cisgenderism, endosexism foregrounds the ‘majority’, taken-for-granted, non-intersex perspective as potentially problematic rather than focusing on the ‘minority’ experience and individual prejudice (which would be labelled as anti-intersex or interphobic; with respect to cisgenderism, the terminology would be anti-trans or transphobic). second, we found in our empirical data that positions which minoritised (in a dismissive way) trans and non-binary people’s experiences commonly occurred alongside positions that similarly minoritised (or outright expunged) people with intersex variations as a distinct group (cf. pikramenou, 2019). in what remains of this article we discuss two themes in our data on attitudes toward legal gender with reference to a cisgenderism framework: namely, the ‘gender critical’ perspective; and related to this, views for and against self-identifying gender. as we mentioned above, in terms of overall appetite for legal change, the flag survey responses indicated a lack of support for changing the system that currently exists – 39.5% (n=1,225) of respondents strongly disagreed that the british system for assigning male/female at birth should be reformed, and a further 16.3% (n=504) disagreed, because it ‘works for most people’. almost two thirds of respondents (63%) also strongly disagreed or disagreed with the proposal to remove identification as female/male from birth certificates 44.9% (n=1,393) strongly disagreed, and a further 18.1% (n =562) disagreed. this attitude places higher importance on those the binary system works for, i.e., cisgender people, than for those for whom it does not, because they are a minority, and thus is evidence of cisgenderism. yet as shona hunter notes in her commentary (hunter, this issue) cisgenderism recognises ‘that gender binaries are universally oppressive’ (p. 5) and ‘cisgenderism holds important possibilities for coalition working for collective emancipation’ (p. 1). being critical of ‘gender’ and foregrounding biological sex a strong feature of the gender critical perspective is the resistance to self-identification of gender, a viewpoint that is substantially represented in the flag survey data as discussed further below. the pattern of responses across different identities and statuses is interesting in that the majority of respondents favoured self-definition for religion (79.7%, n=2,473) and sexual orientation/identity (74.1%, n=2,298) but under a quarter favoured self-definition for ethnicity (23.8%, n=73), disability (21.3%, n=661), or age (4.8%, n=149). over a third (39.3%, n=1,218) of survey respondents agreed that the government should recognise whatever identity or status a person claims is theirs when it comes to gender. the majority, therefore, did not report thinking that gender was a matter of self-determination, unlike religious belief or sexual identity. the belief in the foundational and fixed nature of sex was conveyed in comments such as: ‘a person when born has certain facts: what their sex/gender is: male or female. get it confirmed by dna if you have to’ and ‘no men, including men who identify as transwomen, should be allowed in women’s spaces or allowed to use the word woman about themselves’. cisgenderism is evident here through the invalidation of an individual’s understanding of their own gender, and by limiting what it means to be male/female, or to be a woman, to the biological sex someone is born with. this may characterise someone’s gender in a way that is inconsistent to their own understanding of it. there was also hyperbole in the construction of comments, such as ‘official bodies should recognise matters of fact, not whether i self-id as a siamese cat on tuesdays’. the contrast here between ‘fact’ and a representation of self-definition that is especially fleeting (i.e., one day in the week) and non-human (i.e., siamese cat) offers a particularly derisory position on self-identification – an aspect of ‘gender criticality’ we explore further below. biological sex was also portrayed as undisputedly binary, with little support for the notion of sex as anything other than a dimorphic reality. people with intersex variations were referenced as being a small, and by extension insignificant, ‘outlier’. they were positioned as the exception that proves the rule, and not substantial enough to refute a binary norm. this is demonstrated by comments such as: male and female are biological sexes. they are not genders. there are two sexes. (intersex people make no difference here as they are outliers which do not disprove the existence of sexual dimorphism and certainly don’t demonstrate that sex is a spectrum). (cisgender female, 30, bisexual) this statement was left as an additional comment in response to the opinion statement ‘there are two genders, female and male’. the perceived binary fixedness of biological sex is reinforced, and people with intersex variations are problematically erased. there were, however, accounts emphasising the facticity and immutability of biological sex couched in more considered ‘gender-based domination’ terms, for example: women are oppressed by virtue of their biological sex, not their gender, by both the state and individuals within it. throughout the world, women face violence from men, often extreme violence and grave discrimination. we cannot challenge this oppression if we refuse to acknowledge its biological basis. … trans people – along with many others among us who also challenge gender-role stereotypes and expectations – also experience, often severe, discrimination. this must be challenged – but not by denying the oppression that women face by virtue of their biology and wiping out categorisation based on sex. i believe that everyone should have the right to present as they wish, to wear the clothes they want, get involved in the games they enjoy, love who they want. you do not have to be ‘in the wrong body’ to do this.  we as a society must challenge the terrible, oppressive notions that anyone is ‘in the wrong body’ leading to surgical or lifelong hormonal intervention – we need to do all we can to help individuals accept and value the body they have, and help wider society accept that too. (cisgender female, 68, lesbian) there is a lot to examine in this comment but what is immediately interesting rhetorically is the valence attached to two uses of the bottom-line argument around essentialism. biological sex is presented as foundational, good and an important basis for working to tackle oppression, on the one hand; on the other hand, the essentialist notion of being born in the wrong body – a common experience of trans and gender diverse people – is positioned as problematic and contestable. a cisgenderism framework would take issue too with the problematic transnormativity here. as ellis, riggs and peel (2020: 284-285) outline, transnormativity is the: ‘assumption that there is only one acceptable transgender narrative, shaped by an emphasis on “being born in the wrong body”, and the desirability of gender affirming surgery. such a narrative discounts the experiences of many transgender and gender diverse people and infringes on their rights to self-determination and bodily autonomy’. thus the point of differentiation between a trans-affirming liberal perspective and the one expressed in this quote is, in part, the juxtaposition of trans peoples’ self-determination detracting from ‘the oppression that women face by virtue of their biology’. this perspective suggests a belief that the structural position in relations of inequality caused by biological sex cannot be escaped by living as another gender, and hence prominence is given to biological sex over gender. the presence of responses to the survey which depicted a landscape of substantial movement towards, and support for, a model of gender that exists beyond the dualistic, binary one that has long been taken for granted were of a sizeable proportion, with over half (53.8%, n=1,668) strongly agreeing or agreeing that gender identity is on a spectrum, and 46.7% (n=1,448) strongly agreeing or agreeing that genders outside of male and female should be recognised as equally valid (e.g., non-binary, agender, genderqueer). these attitudinal responses were supported with comments such as: ‘gender is fluid and unfixed. a simple two-gender binary isn’t representative’ and ‘gender is not binary and non binary people exist’. however, the sex binary was largely understood by respondents as an immutable, biological reality; challenges to this binary were refuted. and as we mentioned above, those with intersex variations were deemed a small ‘anomaly’ within this model. resistance towards movement beyond both the sex and gender binaries was characterised by the dismissal of gender as a concept in its entirety and/or the positioning of gender as either inferior to biological sex, or irrelevant or unimportant (e.g., ‘i’m not sure what they [genders outside of male and female such as non-binary, agender, genderqueer] should be recognised as, but sex should be of higher importance [than gender]’). the pre-eminence of biological sex was evident, and persistently used as a bottom-line argument to counter any challenges to the gender binary through its placement as a central, undisputable fact. this is a perspective that aligns with a gender critical approach. views for and against self-identifying gender in addition to the resistance to official bodies recognising whatever identity or status a person claims is theirs when it comes to gender, nearly half of flag survey respondents (45.4%, n=1,409) disagreed that legal sex/gender should be decided by individuals themselves instead of being assigned at birth. cisgenderism is evident here via the apparent investment in the status quo of continuing to assign a gender at birth – a system that may have less later impact on a cisgender person, but is likely to for anyone who is not cisgender, such as endosex trans[footnoteref:12] and non-binary people or non-cis-sexed people with intersex variations (but see cooper and emerton, this issue, for discussion of some of the ways that certification of legal gender does have universal impact). for some respondents espousing an anti-self-identification argument this was rhetorically produced as a ‘slippery slope’, and ripe for ‘abuse’. this perspective was evident in responses to survey questions focusing on single-gender organisations (see also renz, this issue). 53% (n=1,656) of respondents strongly disagreed or disagreed that single-gender organisations must accept anyone who self-identifies with the required gender – demonstrated by comments such as: ‘if you let anyone force their way into any single sex situation, everyone will end up just being whatever gender fits the sport/organisation best impersonating whatever gender is or isn’t allowed’. many of these comments also used objectifying biological language to delegitimise the experiences of transgender people and their right to self-identify in such spaces, thus cisgenderism is again evident here. [12: that is, a non-intersex trans person.] in another instance, one respondent drew an analogy between self-determining gender and self-determining other categories: just today, a man in his 60s has claimed the right to self-id as a 30-year-old. if you allow fantasy claims of disability/ethnicity/sex without certification no administrative system can long survive without collapsing under the weight of the contradictions it’s forced to accept. self-id marital status, claim a widow’s pension; self id age, claim pension ten years early or claim access to school children as a 30-yr-old claiming to be 15. self-id as black to get a job at the bbc. self-id as any minority – roma, say – to get special funding. the list of potential abuses is infinite. the govt etc ‘should’ only recognise facts, those inconvenient things, which are backed up by documentation and interview as necessary. (cisgender female, 72, heterosexual) here we can see various contrasts at play between ‘fantasy’ and ‘fact’ and notable elisions between the ways in which different legally protected characteristics are differently understood, e.g., people’s ethnicities are not ‘certified’ in the uk, and disabilities are not certified in a singular way. foregrounding this anti-self-definition position with the immediate risks (‘just today’) and a case which is sufficiently unusual to be reported in the press (cockburn, 2018) functions to heighten her degree of concern. the changing legal age dutch case is interesting in that – at least in these data – age as a ‘claimed’ status received the least support from respondents (4.8%). however, there are numerous ways of thinking about age, of which chronological age signified by date of birth is just one. metabolic age, for example, could be a more useful indicator of ‘age’ than chronology, and in some cultural contexts there is far less facticity surrounding chronological age – births not being systematically or accurately recorded – which opens up a normative space for age-related self-determination. another axis to discussion around the determination of categories is whether the change is progressive or not. in the examples below, potential change to binary legal frameworks is positioned as ‘regressive’, and as ‘not progress’: i am a tolerant person and a lifelong supporter of equality and human rights. i support equal marriage and have gay and lesbian friends and former colleagues. as someone who grew up with older adults complaining that “you can’t tell the girls from the boys” during the 60s, and living through 70s hippies and glam rock, and the gender-bending 80s, i have no issues at all with people dressing and expressing themselves as they wish. my instinct has always been to respect personal choices and to “live and let live” so long as the rights of others are not being threatened.  it appears clear from a number of documented cases that an internally inconsistent ideology which supports a niche social movement has resulted in the rights of others being not only threatened, but breached. people who should know better have abandoned critical thought and are pandering to the wants – not rights – of a minority of people who appear to be in the thrall of this ideology and are intent on silencing those who question or challenge through shaming them as hateful heretics. it appears to be a clear case of the emperor’s new clothes, with many academics and even funding bodies having taken leave of their senses. this new totalitarian trend is not liberating. it is profoundly disturbing and regressive. (cisgender male, 67, sexuality undisclosed) while elements of the above respondent quote are vague (‘documented cases’, ‘internally inconsistent ideology’, ‘people who should know better’) the rhetorical construction of the account manages the accountability of the respondent as a member of a tolerant and liberal majority, positioned in contrast to a ‘niche social movement’. an aspect of cisnormativity (akin to heteronormativity) would be positioning the attainment of rights and recognitions that the majority enjoy (in this instance a legal status reflective of lived experience) as undermining cisgender people’s rights. cisgenderism is explicitly articulated here. there is anger evident too in the account below, but to focus just on the lack of progress claim around gender diversity, this too is produced through a cisgenderist lens. applying the term ‘a nonsense’ to how trans and gender diverse people understand and may label their body parts is unequivocally delegitimising: as a 66 year old feminist who has rejected restrictive gender stereotypes to achieve what i have, who have brought up two children to reject them too, i am aghast and angry and just about sick to death of the casual, lazy but also deliberate ‘confusion’ of sex and gender in the debate about these issues. ... the idea that if a man self ids as a woman and has a penis then that penis becomes a “lady dick” is a nonsense. this is not progress.​(cisgender female, 66, heterosexual) there was, however, also some evidence of a more pro-self-identification approach, in which a gender spectrum was recognised and de-pathologisation was called for. the four quotes below illustrate a more positive or libertarian stance on self-identification of gender: my legal gender is female but i have always been uneasy about “womanhood”, so i was saved from distress by the women’s liberation movement and its more fluid understandings of being a woman. i'm too old now to declare gender neutrality but i'm interested in following the debates. (cisgender female, 72, bisexual)​ i have become even more certain that, regardless of what sex we are born, each one of us can be located somewhere on a spectrum of maleness to femaleness and some of us can cheerfully hold both aspects within our psychological makeup. (cisgender female, 71, pansexual) self certification should be permitted and a medical diagnosis should not be required. (cisgender female, 37, lesbian) the emphasis on medical transition is still too strong in the old gra. but the self-declaration for passports and drivers’ licenses is good – just expensive and so inaccessible. the real issue is the lack of recognition of non-binary lives. non-binary people are in the majority of trans people in the uk so denying them recognition is unjustifiable and impacts their everyday lives. (cisgender female, 27, bisexual) there are a number of interesting observations that can be made about these comments, the first being that they are all made by cisgender people who are legally female, and second they span an age range of nearly fifty years (27-72 years). they are also from people not identifying as heterosexual. these considerations around the ‘demographic characteristics’ of these participants trouble, at least in some small sense, the notion that an anti-self-identification perspective is especially associated with cisgender (older) heterosexuals or lesbians.[footnoteref:13] we can also see hints at gender diversity in these notionally cisgender accounts. for example, in the first comment the 72 year old writes they are ‘too old now to declare gender neutrality’, whereas in the final comment, from the 27 year old, ‘non-binary people are in [sic] the majority of trans people’. this signals perhaps the ‘newness’ of diverse understandings of gender. by contrast, the 71 year old’s comment alludes to the longevity of notions of gender as a spectrum psychologically. and indeed concepts such as androgynous sex roles have been embedded in feminist psychology via sandra bem’s work since the 1970s (bem, 1974). while not using the term cisgenderist about the current legal framework, the last respondent quoted above does note that the denial of recognition of non-binary people ‘is unjustifiable and impacts their everyday lives’. [13: 68% (n = 446) of survey respondents aged 50 and above, who are heterosexual/straight or lesbian, and whose gender matched the sex they were assigned at birth considered that the government should not recognise whatever identity or status a person claims is theirs when it comes to gender. this compares to 49.2% (n=1525) of the overall survey sample.] younger respondents generally, and in line with the literature on gender identity (see ellis, riggs and peel, 2020 for an overview), reported more diversity in their identities relating to gender (cover, 2019). 12% (n=86) of respondents aged 18-29 reported their gender as an identity outside of female or male (e.g., non-binary, agender, genderqueer), compared to 1.9% (n=17) of those aged 50 and above. younger respondents also reported more diversity in their sexual identities. 28% (n=203) of those aged 18-29 reported a sexual identity other than the well-established sexualities of heterosexual/straight, lesbian, gay, or bisexual (e.g., asexual, pansexual, queer) compared to 8.4% (n=75) of those aged 50 and above. a pro-self-identification perspective was also more prevalent in the views expressed by younger rather than older participants. for example, 67.8% (n=495) of respondents aged 18-29 reported that the government should recognise whatever identity or status a person claims is theirs when it comes to gender, compared to 35.7% (n=319) of those aged 50 and above. the younger respondents also displayed more awareness of cisgenderism in law in general than the older respondents, which indicates possible age cohort effects regarding lay attitudes to legal gender. overall, then, the findings of our ‘attitudes to gender’ survey demonstrated some movement towards a model of gender that exists beyond the dimorphic, binary one that the current uk legal system, and much of society, still reinforces. however, challenges to this system were often outweighed by cisgenderist and endosexist ideas steeped in a commitment to the status quo, positioning a model of binary biological sex as an immutable reality, and prioritising this model above other models of sex/gender and gender identity. concluding thoughts our project is future oriented, and as well as exploring the current debate around gender in england and wales, there is an ambition too to help enable that debate to become less adversarial and to move beyond antagonism or mutual disregard. this is echoed by many, including practitioners such as davidson (2019: 49) who works for the gender identity development service and recently voiced a ‘wish for this area to be less polarised...my hope [for five years time] would be for us to be much more connected and less adversarial’. an online survey, anonymous as it is and with distance created between the researchers and the researched, is not the optimum research method for furthering connection and mutual appreciation. it has the potential to encourage the ‘research participant keyboard warrior’. people are, generally speaking, far more nuanced and less fierce and forthright in person. it does, however, provide a snapshot of a cultural moment, which is valuable and interesting in its own right. in the context of a feminist law reform project which aims to create spaces in which different enactments of legal and regulatory frameworks become not just possible but perhaps achieved, perspectives which stress and argue for stasis are potentially troublesome. if we are to take ‘alternative understandings seriously’ (renz, 2019) then – on the face of it – these findings offer a strong steer towards the regulatory status quo (cf. cooper, this issue; cooper and emerton, this issue). there is a dismissal of ‘gender’ as a legitimate category in favour of a binary distinction between ‘sexes’ that are seen as outwith the scope of individual interpretation. this begs the question of whether applying a cisgenderism framework to these data is, indeed, taking views which – ultimately – situate gender/sex as a ‘special case’ seriously. we could suggest that positions that bolster the status quo (i.e., a retention of two legal categories; sex/gender segregated provision) are simply antithetical to the aims and goals of the project and thus are sufficient grounds not to present these as evidence of a lack of appetite for legal change. we could also have recourse to scientific arguments around skewed and/or non-representative samples as a mechanism for accounting for, and dismissing, the main perspective in these data. we prefer, however, to move beyond this apparent appetite for the status quo through both engaging with these perspectives, exploring their rhetorical construction, examining how a cisgenderism framework refracts them and situating sex/gender alongside other salient categories. in other words, if sex/gender is decentred and analogies drawn to other ‘protected characteristics’ – such as sexual identity – then the grounds for the anti-self-identification perspective are less 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of gender in early years”. gender and education 30(5): 587-606. zhou, s., page-gould, e., aron, a., moyer, a. and hewstone, m. 2019. “the extended contact hypothesis: a meta-analysis on 20 years of research”. personality and social psychology review 23(2): 132-160. appendix: attitudes to gender survey attitudes to gender study information what is the purpose of the study? this survey is part of the future of legal gender (flag) project funded by the economic and social research council (2018-2021). it explores 1) whether people should have a female/male legal status assigned at birth; and 2) how we could change the way that female/male and other gender categories are used in uk law. who is doing this research and why? professor davina cooper (king’s college london) leads the overall project and professor elizabeth peel (loughborough university) is leading this part of the research. we want to make sure that the research is informed by the experiences and views of a wide range of people. thank you for sharing your opinions and contributing to the project. you can read more about why we are doing the project, and the research team at https://futureoflegalgender.kcl.ac.uk elizabeth peel (school of social sciences, loughborough university, le11 3tu, 01509 228176 e.peel@lboro.ac.uk) can be contacted directly if you have questions before taking part, or you can email the project team at flag@lboro.ac.uk if you would like the survey in a different format please email us. are there any reasons i can’t participate? the survey is open to anyone over the age of 18. we are particularly interested in the views of people who live in britain, but if you live elsewhere we are still interested in your views. what will i be asked to do? this survey asks for your opinions about the significance of gender, including the categories of female/male, in everyday life. it also asks for your views on whether the law should be reformed so infants are no longer legally declared female/male at birth. there are 3 sections: section 1 asks questions about you; section 2 focuses on gender in everyday life; and section 3 asks about your attitudes towards how the law assigns gender. once i take part, can i change my mind? yes, you can withdraw from the study at any point by exiting the survey and your information will be deleted. you will be asked to provide a 5 character unique identifier that is memorable to you (e.g. 74eap). please make a note of this unique identifier. if you decide to withdraw from the study after completing the survey email flag@lboro.ac.uk within 1 month with your unique identifier and your data will be withdrawn. you will not be asked to explain your reasons for withdrawing. how long will it take? the survey should take no longer than 20 minutes of your time. as there is space to write about your views it may take longer. you can exit and return to the survey if you wish. what personal information will be required from me? section 1 asks questions about you including your age, gender, and country of residence. many of these are standard questions, which are important for us to gain an overall understanding of the people who complete the survey. if you live in britain you will be asked for the first part of your postcode, which will not identify where you live but will help us to ensure that views from many parts of britain are represented. your participation will be anonymous and confidential to the research team. are there any disadvantages or risks in participating? the survey may raise issues about your own experiences, although we anticipate the risk to you will be low. the questions asking you to report your personal experiences are optional, but the project website contains a list of support organisations that you will be directed to at the end of the survey. will my taking part in this study be kept confidential? yes. we will anonymise any information you provide and only the research team will have access to your answers. the only time confidentiality would be breached is if (under the statutory obligations of the agencies which we are working with), it is judged necessary for the safety of you or others or for audit by regulatory authorities. however, a breach of confidentiality is highly unlikely and would require you providing us with your email address. in line with loughborough university policy, we will hold the anonymised data securely on a password-protected computer for 10 years after the end of the study. the funder requires that fully anonymised data are archived with the uk data service, see https://www.ukdataservice.ac.uk/ what will happen to the results of the study? the results, fully anonymised, will be presented at conferences and workshops, published in academic journals and books, used in articles and blogs, and drawn on at public events. you are welcome to be sent a summary of the results. what if i am not happy with how the research was conducted? if you are not happy with how the research was conducted, contact the secretary of the ethics approvals (human participants) sub-committee, hazlerigg building, loughborough university, le11 3tu. tel: 01509 222423. email: researchpolicy@lboro.ac.uk .the university also has policies on research misconduct and whistle blowing, available at http://www.lboro.ac.uk/committees/ethics-approvals-human-participants/additionalinformation/codesofpractice/. informed consent the purpose and details of this study have been explained to me. i understand that this study is designed to further knowledge and procedures have been approved by the loughborough university ethics approvals (human participants) sub-committee.   · i have read and understood the information sheet and this consent form. · i have had an opportunity to ask questions about my participation. · i understand that i am under no obligation to take part in the study, have the right to withdraw from this study at any stage for any reason, and will not be required to explain my reasons for withdrawing. · i agree to take part in this study. · i understand that the personal information i provide will be treated in strict confidence and will be kept anonymous and confidential to the researchers unless (under the statutory obligations of the agencies which the researchers are working with), it is judged that confidentiality will have to be breached for the safety of the participant or others or for audit by regulatory authorities. · i understand that anonymised data/quotes may be used in publications, reports, web pages, and other research outputs. · i understand that the anonymised data i provide will be made publicly available for future research through a data repository/archive at the end of the project. i have read and agree to the terms and conditions *required yes ☐ no ☐ please do not continue if you do not agree to the terms and conditions. unique identifier 2. please provide a 5 character unique identifier that is memorable to you. please make a note of this unique identifier. if you decide to withdraw from the study after completing the survey email flag@lboro.ac.uk within 1 month with your unique identifier and your data will be withdrawn. you will not be asked to explain your reasons for withdrawing. section 1: about you 3. how do you define yourself? *required female ☐ male ☐ other (please specify) ☐ a. if you selected other, please specify: (required if other) 4. does your current sex/gender match the sex you were given at birth? *required yes ☐ no ☐ 5. what is your legal status? *required female ☐ male ☐ other (please specify) ☐ a. if you selected other, please specify: (required if other) 6. any further information you’d like to provide about your legal gender status or how you understand your identity? 7. what country do you live in? *required england ☐ wales ☐ scotland ☐ northern ireland ☐ other (please specify) ☐ a. if you selected other, please specify: (required if other) 8. if you live in the uk, what is the first part of your postcode? optional 9. what is your country of origin? (i.e. where were you born) *required britain ☐ other (please specify) ☐ prefer not to say ☐ a. if you selected other, please specify: (required if other) 10. what is your age? *required 11. what is your relationship status? (please select at least one answer) *required single ☐ co-habiting ☐ non-cohabiting partner ☐ married ☐ civil partnership ☐ divorced ☐ separated ☐ widowed ☐ polyamorous ☐ other (please specify) ☐ prefer not to say ☐ a. if you selected other, please specify: (required if other) 12. what is your sexual identity? (please select at least one answer) *required asexual ☐ bisexual ☐ gay ☐ heterosexual ☐ lesbian ☐ pansexual ☐ queer ☐ straight ☐ other (please specify) ☐ prefer not to say ☐ a. if you selected other, please specify: (required if other) 13. what is your religion, cultural tradition/ heritage or belief? (please select at least one answer) *required no religion ☐ atheist ☐ agnostic ☐ buddhist ☐ christian (including all denominations) ☐ hindu ☐ jewish ☐ muslim ☐ sikh ☐ any other religion, please specify ☐ prefer not to say ☐ a. if you selected other, please specify: (required if other) 14. do you participate in religious activities? (e.g. go to temple/mosque/church, mark religious festivals, observe religious law, pray) *required never ☐ occasionally ☐ sometimes ☐ often ☐ prefer not to say ☐ 15. which political beliefs do you agree with? (please tick all that apply) *required none ☐ anarchism ☐ communism ☐ conservatism ☐ environmentalism ☐ feminism ☐ internationalism ☐ liberalism ☐ libertarian ☐ nationalism ☐ socialism ☐ social democracy ☐ other (please specify) ☐ prefer not to say ☐ a. if you selected other, please specify: (required if other) 16. based on the country where you live, do you identify as part of a minority ethnic/ racial community (or communities)? if so, please specify is possible. *required yes ☐ no ☐ prefer not to say ☐ a. if you answered yes, please specify if possible: optional 17. do you consider yourself to have a disability? *required yes ☐ no ☐ prefer not to say ☐ a. if you answered yes, please specify if you wish: optional 18. what is your highest educational qualification? *required a level ☐ as level ☐ advanced gnvq ☐ degree ☐ diploma ☐ gcse/o level ☐ gnvq ☐ masters degree ☐ no qualification ☐ phd ☐ other (please specify) ☐ a. if you selected other, please specify: (required if other) 19. how do you define your social class? (e.g. working class, middle class, prefer not to say) *required 20. what is your occupational group? *required student ☐ retired ☐ unable to work ☐ parent/carer ☐ manual & service (e.g. cleaner, taxi driver, machine operator, receptionist) ☐ technical & craft (e.g. mechanic, plumber, sailor) ☐ clerical & intermediate (e.g. office worker, secretary) ☐ middle manager (e.g. bank manager) ☐ senior manager or administrator (e.g. chief executive) ☐ professional (e.g. solicitor, health professional, teacher, civil engineer) ☐ other (please specify) ☐ a. if you selected other, please specify: (required if other) 21. do you have caring responsibilities? (e.g. for parent, partner, children) *required yes ☐ no ☐ a. if you have children, what are your child/ren’s age/s and gender/s? optional 22. is there anything else you would like to tell us about you? optional section 2: gender in everyday life this section asks about your experience of gender in everyday life and your attitudes towards gender in general. 23. which of the following terms are familiar to you? (please tick all that apply) *required woman ☐ man ☐ female ☐ male ☐ agender ☐ bigender ☐ cis ☐ cisgender ☐ gender fluid ☐ genderqueer ☐ intersex ☐ non-binary ☐ pangender ☐ polygender ☐ trans ☐ transgender ☐ two-spirit ☐ other (please specify) ☐ a. if you selected other, please specify: (required if other) to me ‘sex’ means… optional to me ‘gender’ means… optional 24. please select your view on the following statements: (please tick one answer per statement) *required strongly disagree disagree neither agree or disagree agree strongly agree don’t know please explain your choice if you wish (optional) 1.there are two genders, female and male. ☐ ☐ ☐ ☐ ☐ ☐ 2. my sense of my gender has remained stable across my life so far. ☐ ☐ ☐ ☐ ☐ ☐ 3.i define my gender by my outward expression and appearance. ☐ ☐ ☐ ☐ ☐ ☐ 4.i am aware of my gender on a day-to-day basis. ☐ ☐ ☐ ☐ ☐ ☐ 5.i would rather choose my gender than have it imposed. ☐ ☐ ☐ ☐ ☐ ☐ 25. please select your view on the following statements: (please tick one answer per statement) *required strongly disagree disagree neither agree or disagree agree strongly agree don’t know please explain your choice if you wish (optional) 6. gender is not something that can be chosen. ☐ ☐ ☐ ☐ ☐ ☐ 7. gender identity is on a spectrum. ☐ ☐ ☐ ☐ ☐ ☐ 8. i am aware of my gender when interacting with other people. ☐ ☐ ☐ ☐ ☐ ☐ 9. my gender means that i face obstacles in negotiating everyday life. ☐ ☐ ☐ ☐ ☐ ☐ 10. i am often misgendered by others (i.e. others get my gender wrong). ☐ ☐ ☐ ☐ ☐ ☐ 26. please select your view on the following statements: (please tick one answer per statement) *required strongly disagree disagree neither agree or disagree agree strongly agree don’t know please explain your choice if you wish (optional) 11. there is a difference between ‘sex’ and ‘gender’. ☐ ☐ ☐ ☐ ☐ ☐ 12. more people will identify as agender (not having a gender) in the future. ☐ ☐ ☐ ☐ ☐ ☐ 13. people who are not born male are disadvantaged. ☐ ☐ ☐ ☐ ☐ ☐ 14. genders outside of male and female should be recognised as equally valid (e.g. non-binary, agender, genderqueer). ☐ ☐ ☐ ☐ ☐ ☐ 27. please select your view on the following statements: (please tick one answer per statement) *required strongly disagree disagree neither agree or disagree agree strongly agree don’t know please explain your choice if you wish (optional) 15. identities such as queer, camp, dyke, and non-binary provide important challenges to the status quo. ☐ ☐ ☐ ☐ ☐ ☐ 16. gender is an oppressive structure that should be dismantled. ☐ ☐ ☐ ☐ ☐ ☐ 17. gendered differences are an important part of sexual desire. ☐ ☐ ☐ ☐ ☐ ☐ 18. gender should be treated as irrelevant to the opportunities and resources available to people. ☐ ☐ ☐ ☐ ☐ ☐ 28. please select your view on the following statements: (please tick one answer per statement) *required strongly disagree disagree neither agree or disagree agree strongly agree don’t know please explain your choice if you wish (optional) 19. children’s toy manufacturers should not target their products specifically to either boys or girls. ☐ ☐ ☐ ☐ ☐ ☐ 20. product manufacturers, in general, should be able to identify their products with a specific gender. ☐ ☐ ☐ ☐ ☐ ☐ 21. casting directors in the arts (e.g. television, dance) should be allowed to treat the gender of the auditioning person as relevant. ☐ ☐ ☐ ☐ ☐ ☐ 22. the disappearance of gender differences would make life less interesting. ☐ ☐ ☐ ☐ ☐ ☐ 29. what factors contribute to my gender? (please tick all that apply). *required my biological sex ☐ my psychological sex/gender ☐ how others refer to and treat me ☐ my location within a social gender structure ☐ my appearance ☐ how i define myself ☐ my behaviour ☐ my likes and dislikes ☐ the shape of my body ☐ other (please specify) ☐ a. if you selected other, please specify: (required if other) 30. what factors do you think other people use when deciding what your gender is? (please tick all that apply) *required my biological sex ☐ my psychological sex/gender ☐ how others refer to and treat me ☐ my location within a social gender structure ☐ my appearance ☐ how i define myself ☐ my behaviour ☐ my likes and dislikes ☐ the shape of my body ☐ other (please specify) ☐ a. if you selected other, please specify: (required if other) 31. have you had any positive experiences linked to your gender? optional yes ☐ no ☐ don’t know ☐ a. if yes, please describe. optional 32. have you had any negative experiences linked to your gender? optional yes ☐ no ☐ don’t know ☐ b. if yes, please describe. optional 33. have your views on gender changed as a result of recent media coverage on gender and transgender issues? *required yes ☐ no ☐ a. please describe. optional 34. would you like to add anything else about your experience of gender in everyday life? optional section 3: legal gender this section asks for your views about sex/gender with respect to law. in answering these questions please bear in mind that 'female' and 'male' are the two sexes/genders that currently have legal status in britain, and are assigned at birth on your birth certificate. people wanting to change their legally assigned status [from male to female or vice versa] have to go through a mandatory procedure, currently under review. other social characteristics, such as sexuality and religion, are recognised by government and the law, e.g. in anti-discrimination law. however, an individual's sexual identity or religion is not assigned. for example, this means a person can choose and change their religion, decide not to have one, or identify it differently in different contexts. 35. which aspects of who you are should you be able to decide for yourself? (please tick all that apply) *required age ☐ disability ☐ ethnicity ☐ gender ☐ religion ☐ sexual orientation or identity ☐ all of the above ☐ none of the above ☐ other (please specify) ☐ don’t know ☐ a. if you selected other, please specify: (required if other) 36. should the government (and other official bodies) recognise whatever identity or status a person claims is theirs when it comes to: (please tick all that apply) *required age ☐ disability ☐ ethnicity ☐ gender ☐ religion ☐ sexual orientation or identity ☐ all of the above ☐ none of the above ☐ other (please specify) ☐ don’t know ☐ a. if you selected other, please specify: (required if other) 37. should affirmative action+ be lawful and undertaken by governments and others to overcome disadvantage in relation to: (please tick all that apply) *required +affirmative action means making targeted or additional opportunities and provision available for particular groups, especially in training and employment, to counter discrimination, reduced opportunities, or limited representation. age ☐ disability ☐ ethnicity ☐ gender ☐ religion ☐ sexual orientation or identity ☐ all of the above ☐ none of the above ☐ other (please specify) ☐ don’t know ☐ a. if you selected other, please specify: (required if other) 38. legal sex/gender status should not be assigned at birth but decided by individuals themselves: (please tick which applies) *required whenever they choose ☐ on reaching 16 ☐ on reaching 18 ☐ other (please specify) ☐ disagree ☐ don’t know ☐ a. if you selected other, please specify: (required if other) 39. once a person’s legal gender is determined, it should not be easy to change it because: (please tick all that apply) *required people should commit to a gender ☐ it’s administratively difficult if people keep changing their gender ☐ acquiring a new gender takes time, e.g. for socialisation into it ☐ other (please specify) ☐ disagree ☐ don’t know ☐ a. if you selected other, please specify: (required if other) 40. gender should be abolished: (please tick all that apply) *required as a legal status that individuals have ☐ as a category that the law uses (excluding equality law) ☐ as a category that the law uses (including equality law) ☐ as a social phenomenon ☐ other (please specify) ☐ disagree ☐ don’t know ☐ a. if you selected other, please specify: (required if other) 41. separate provision for men and women (boys and girls) should continue: (please tick which applies) *required whenever a group wishes to have separate provision ☐ only when its purpose compensates for disadvantage ☐ never ☐ don’t know ☐ other (please specify) ☐ a. if you selected other, please specify: (required if other) 42. it is impossible not to have a gender because: (please tick all that apply) *required the government assigns a gender and everyone is assigned one ☐ gender is the natural effect of having a sex which everyone has ☐ we live in a gendered society and everyone is gendered whether they like it or not ☐ other (please specify) ☐ disagree ☐ don’t know ☐ a. if you selected other, please specify: (required if other) questions 43 to 46 relate specifically to britain. however, if you are answering from a different country you should answer in relation to the country in which you live. 43. please select your view on the following statements: (please tick one answer per statement) *required strongly disagree disagree neither agree or disagree agree strongly agree don’t know please explain your choice if you wish (optional) 1.the british system for assigning male/female at birth should be reformed. ☐ ☐ ☐ ☐ ☐ ☐ 2. the current system for legally transitioning between female and male status is adequate. ☐ ☐ ☐ ☐ ☐ ☐ 3. my legal gender affects my everyday experiences. ☐ ☐ ☐ ☐ ☐ ☐ 4. children’s legal gender should be determined by their parents. ☐ ☐ ☐ ☐ ☐ ☐ 5. single-gender organisations must accept anyone who self-identifies with the required gender. ☐ ☐ ☐ ☐ ☐ ☐ 44. please select your view on the following statements: (please tick one answer per statement) *required strongly disagree disagree neither agree or disagree agree strongly agree don’t know please explain your choice if you wish (optional) 6. the criteria for joining single-gender organisations should be left entirely up to the organisation. ☐ ☐ ☐ ☐ ☐ ☐ 7. women’s organisations should have more freedom to decide who is a woman where they are tackling women’s disadvantage. ☐ ☐ ☐ ☐ ☐ ☐ 8. a system which did not declare children female or male at birth would cause problems for parents. ☐ ☐ ☐ ☐ ☐ ☐ 9. not being declared female or male at birth would cause problems for children. ☐ ☐ ☐ ☐ ☐ ☐ 10. the law and government are key forces when it comes to creating, maintaining and enforcing a system of binary gender (i.e. female/male). ☐ ☐ ☐ ☐ ☐ ☐ 45. please select your view on the following statements: (please tick one answer per statement) *required strongly disagree disagree neither agree or disagree agree strongly agree don’t know please explain your choice if you wish (optional) 11. it would be better if the government left determining how gender operates to individuals and communities. ☐ ☐ ☐ ☐ ☐ ☐ 12. the government needs to know if people are female or male in order to fairly share out their resources and opportunities (e.g. promotion, training). ☐ ☐ ☐ ☐ ☐ ☐ 13. the law needs to protect people who are discriminated against because of their gender. ☐ ☐ ☐ ☐ ☐ ☐ 14. the only gender which law and government should protect is female. ☐ ☐ ☐ ☐ ☐ ☐ 15. people don’t need to be legally defined as female/male for law and government to counter discrimination on the basis of sex/gender. ☐ ☐ ☐ ☐ ☐ ☐ 46. please select your view on the following statements: (please tick one answer per statement) *required strongly disagree disagree neither agree or disagree agree strongly agree don’t know please explain your choice if you wish (optional) 16. identification as male/female should be removed from birth certificates. ☐ ☐ ☐ ☐ ☐ ☐ 17. being female or male is a core social characteristic that should be specified on official documents (e.g. passports). ☐ ☐ ☐ ☐ ☐ ☐ 18. intersex and non-binary people should not be treated as distinct genders but be fitted into the categories female or male. ☐ ☐ ☐ ☐ ☐ ☐ 19. it is a good thing that more people are identifying themselves as not having a gender. ☐ ☐ ☐ ☐ ☐ ☐ 20. i would lose out if i wasn’t legally recognised as female/male. [please explain how] ☐ ☐ ☐ ☐ ☐ ☐ 21. if gender stopped being legally assigned, i wouldn’t notice the difference. ☐ ☐ ☐ ☐ ☐ ☐ 47. are there other things you would like to add about how the law could or should regulate gender? optional 48. do you have any feedback about the survey? optional would you like to participate further in this research? we are looking for a cross-section of people who have filled in this survey to participate in further stages of this research project (recording aspects of your life when gender is relevant, and being interviewed). if you live in england or wales and would be willing to consider participating further in the future of legal gender project please contact the research team on flag@lboro.ac.uk with 'participate' in the subject line. thank you for completing our survey. if you would like a summary of our findings please email flag@lboro.ac.uk with 'results' in the subject line. you can find organisations and sources of support related to gender on the project website https://futureoflegalgender.kcl.ac.uk/survey/support-organisations/ ___________________________________________________________________ 64 ______________________________________________________________________________________________________________ 63 davina cooper taking public responsibility for gender _____________________________________________________________________________________ feminists@law vol 10, no 2 (2020) _____________________________________________________________________________________ taking public responsibility for gender: when personal identity and institutional feminist politics meet davina cooper[footnoteref:1]* [1: * research professor in law, dickson poon school of law, king’s college london, uk; email davina.cooper@kcl.ac.uk. i want to thank the feminists@law peer reviewers for their comments, other members of the flag project flora renz, emily grabham, elizabeth peel, robyn emerton and hannah newman, and the discussants on this essay, sumi madhok and vanessa munro. this paper also benefited from discussions with mathias thaler and john ackerman, comments from didi herman, and discussion at the slsa annual conference in 2019, and at seminars at brunel and kent. the research for this article was funded by the esrc, award number es/p008968/1.] abstract this essay explores the challenge that soft decertification poses for feminist politics. in soft decertification, people continue to have a formal legal sex/ gender status; however, public and other bodies act as if such status was no longer determinative (at least in certain contexts). as glimpses of soft decertification emerge, what are its implications for gender equality initiatives hitherto focused on addressing the asymmetrically patterned lives of women and men? what new ways of understanding gender are coming to the fore, and what challenges arise for bodies engaged in equality governance in trying to address them? this essay explores these questions through the prism of responsibility the ethical, political, and legal obligation to pay attention or respond that different bodies have because of their capacity to undo or ameliorate social inequalities and other injustices. specifically, it asks: what does responsibility for gender entail when gender is treated as both institutionalised and self-determined; public and private? the essay addresses two contexts where equality governance approaches gender as a site of institutional re-making and redress. the first concerns the front-stage initiatives and policies of public sector provision; the second concerns the back-stage scenes of organisational action, where informal decision-making arises. in both cases, taking responsibility for gender, as an institution, is far from straight-forward. this essay explores the importance of doing so not just despite, but because of, the complex conditions responsibility confronts when institutional forms also exist as individual attachments. introduction in the global north, understandings of gender are shifting as the unquestioned assumption of two natural sex-based groupings is shaken. in britain, the prevailing view still seems to lean towards perceiving gender as binary and relatively stable (see peel and newman, this issue). however, momentum is building for an account of gender as personal, self-determined, and plural (e.g., cannoot and decoster 2020).[footnoteref:2] proponents and many commentators view this understanding of gender as progressive. however, it has encountered criticism on different grounds. sex-based rights feminists argue that it diminishes the significance of biological sex – which they deem a stable feature of life and at the heart of women’s oppression (see jeffreys 2014; sullivan 2020). others object to the decentring of gender’s systemic or structural character, which arises in moves to depict gender as individually authored or possessed (see venditti 2020; more generally, walby 2007). [2: see also https://yougov.co.uk/topics/politics/articles-reports/2020/07/16/where-does-british-public-stand-transgender-rights; last accessed 17 august 2020.] competing accounts of gender as identity-based, sex-derived, and structural have faced each other in different fora and decision-making processes, including admissions policies for women’s refuges, transgender policies in schools, admittance to women-only parliamentary shortlists, census questions and guidance, toilet signage, prison allocation procedures, women’s sports, university ‘no platform’ decisions, and employer policies on acceptable speech.[footnoteref:3] one site where disagreement has arisen concerns the cluster of proposals currently emerging to de-register, de-classify or decertify sex/ gender (e.g., see cruz 2002; cooper and renz 2016; quinan et al. 2020).[footnoteref:4] our focus in this special issue is the last: decertification – where the state (and state law) withdraws from registering, assigning, or confirming an individual’s sex/ gender status. as robyn emerton and i discuss (this issue), different versions of decertification exist. the version we address in this special issue does not remove sex/ gender from state purview as a matter of equality and social justice concern. however, its implementation would mean people no longer have a formal sex/ gender status – placing gender on a par with sexuality or ethnicity, organising principles of inequality that state law recognises for remedial purposes without people being formally assigned to a category. [3: for arguments on different sides, see hines 2020; jeffreys 2014; murray and blackburn 2019; pearce et al. 2020; for further discussion and sources, see other articles in this special issue. ] [4: whether and how to use the language of gender, sex, or sex/ gender is a source of considerable dispute. in this article, i use gender to foreground the social manifestation and production of differences organised in tighter or looser fashion around the social relations and categories of male/ female, masculine/ feminine, recognising these terms continue to have salience for gender categories and politics that reject their binarism. in the analysis here, gender encompasses and constitutes sex as socially meaningful. this does not mean that sex refers only to ideational processes. both gender and sex are materially (including bio-socially) generated and enacted in ways shaped by spatial, economic, and techno-historical processes among others. i use sex/ gender in those instances where either or both terms apply or where i want to indicate disagreement over which term is applicable. ] the proposal to decertify sex/ gender seems, at first glance, to align with an understanding of gender as identity-based.[footnoteref:5] termination of the currently standard process of registering sex at birth supports, it would seem, a process in which individuals choose (or come to know) their own identity on their own terms (see also jenkins 2018). indeed, one justification for decertification is that if sex and gender become (recognised as) self-authorised identifications, they no longer have a necessary or sensible relationship to formal legal status. this has led some feminists to criticise both gender self-identification and decertification (see cooper and emerton, this issue). yet, decertification can be tied to more social (or structural) critiques of gender. decertification is a legal technique of withdrawal that may help to diminish gender’s organising power. while the effects of decertification can only be speculated upon, it appears to support gender’s undoing as a formative aspect of society in several significant ways. decertification would enable people to live without an official sex/ gender status; it would disrupt the confident allocation of people to categories, which gender as a hierarchical ordering process relies upon; and perhaps most provisionally, it might disturb the normalisation of sex/ gender as something that belongs to individuals. in these different ways then, decertification could withdraw a taken-for-granted legal bolster holding our current sex/ gender system in place. [5: the focus on self-authoring or self-identifying one’s gender also aligns with a gender-as-diversity approach (see cooper 2019a). ] at the same time, and in many respects, decertification is a modest act, one unlikely by itself to significantly transform how sex/ gender is socially organised. in discussing decertification with critics, as part of our esrc project, the future of legal gender,[footnoteref:6] several people commented that decertification would be ineffectual, premature, and utopianly unviable. one union official remarked when interviewed, [6: https://futureoflegalgender.kcl.ac.uk/] “i can see the government thinking, this is an easy way for us to say that we are addressing sex discrimination and gender inequality. we will just say that sex doesn't exist anymore. … and then, because sex doesn't exist, sexism doesn't exist. i don't know how that helps women.” a council officer made a similar point: “it makes certain things invisible, doesn't it? i know that some people would say that that will help to tackle sexual harassment. if everybody socialises in the same way, that will help undermine this whole basis on which men [are] socialise[d] in a different way to women. i agree with that. at the same time, i think that it's not going to die out overnight, is it? we still live in a very patriarchal, you know; just not [having] designated legal gender, it's not going to like do away with the whole patriarchal society that we live in.” yet, decertification in britain may already be informally underway – at least in some respects. in this “soft” version of decertification, public and other bodies act as if a sex/ gender status assigned or confirmed by the state is no longer determinative. instead, greater recognition and authorial power is given to individuals to determine their own sex/ gender identity. in this version of decertification, certain potential features are less pronounced (or present). for instance, as i discuss below, people are assumed to have a sex/ gender, which public (and other) bodies should recognise and respond to. thus, there is little evidence of moves to abandon or abolish sex/ gender as a classificatory structure among public bodies. at the same time, growing recognition of new, emerging sex/ gender categories, and the growing tendency to make individuals the privileged site of identification and authorisation, beg questions about the enduring pertinence of sex/ gender for public policymaking and law. the development of informal decertification is a source of celebration for some and dismay for others. in this essay, i reflect on its implications for gender politics, particularly for a politics intent on countering the institutional inequalities that gender (as a formation which includes sex) continues to express and produce. these politics can be, and are, framed in different ways, including as a politics of inclusion, recognition, redistribution, empowerment, and protection. here, i focus on two political agendas: to remake gender as diverse, inclusive, and self-directed; and to undo gender as an asymmetrical structural force (begging the critical question of whether gender could ever become anything else). the question that this essay poses is whether and how these different political projects might cohere. their collision is very publicly evident as i explore. but can a politics oriented to gender as a feature of personhood (one increasingly described as rightly private) also attend to gender as a forceful, asymmetric social patterning? i want to explore this issue in two ways. first, i consider gender as a public matter, and the different ways such publicness is understood. of special concern here is gender’s institutional dimensions, by which i mean the socially patterned and unequal rules, roles, norms, processes, spaces, and activities taken to comprise it (see martin 2004). second, i consider two settings where gender’s current institutional form has been challenged; both involve public organisations where decertification’s de facto operationalisation is emerging and so glimpsed. certainly, some grass-roots communities also approach gender as a diverse, self-identified, personal feature of human subjects that is outside any state determination; however, i am interested in public bodies’ actions because proposals to decertify gender foreground formal change at the state level. as a political proposal, decertification can appear as a unitary claim – it either exists, having been introduced by states (and state law), or it does not. this essay focuses on an intermediate space in which decertification is present as soft law or policy that is also uneven in its presence and contested. in such conditions, i want to consider what it means to take responsibility for gender’s asymmetric institutional patterning as something to remake or, alternatively, to unmake. thus, the essay does not focus on establishing the normative argument that bodies should take responsibility for gender, but rather considers what such responsibility could mean and the challenges it confronts. responsibility is often tied to the culpability that a subject has for harms caused; other times it constitutes a duty to maintain what is. my interest here is in the responsibility that comes from a capacity to make a difference in ways oriented to transforming gender, and specifically to undoing the inequalities it gives rise to and expresses. today, different bodies – state and non-state, collective and individual – take responsibility for changing how gender is patterned. while for grass-roots activists and communities, this responsibility is usually deemed voluntary (and so a matter of morality, ethics, or politics), my focus is on bodies with statutory, functional, or formal responsibilities. specifically, i consider the equality governance sector – a loose network of bodies whose policies and practices have been important in developing and institutionalising progressive-liberal equality norms. my first setting concerns equality approaches in british local government and specialist equality bodies, drawing on interview data from a subset of fifteen semi-structured conversations.[footnoteref:7] these were conducted with officials and other equality staff, purposively sampled for their organisations’ proactive approach in engaging with critical and changing understandings of gender-based inequalities and exclusions. my analysis explores the tensions these bodies have faced in responding to competing gender agendas, and the approaches that get organised out from such public state projects. but exercising responsibility for doing gender differently is not just about public bodies’ front-stage – often modest or cautious – actions. critical accounts routinely assume a clear line between public bodies, on the one hand, and grass-roots activist networks, on the other (as i have explored in more detail elsewhere, see cooper 2016, 2019b). yet, the reality is that these distinctions are often blurred, unstable, and partial (newman 2012). informal actions, shaped by wider activist politics, can be undertaken within public bodies, drawing on the opportunities, authority, and resources that are institutionally available. these actions may be dismissed as ad hoc, improvised, and unintended; however, progress within (and by) public bodies sometimes happens because of unplanned and unofficial action or decisions that exceed what was expected to take place.[footnoteref:8] [7: these interviews formed a small sub-set of over 100 interviews carried out as part of the esrc project on the future of legal gender. other interviews were conducted with trade union officials, feminist and transgender organisations, women’s refuges and other shelters, the sports sector, the adult care field, central government, lawyers and legal drafters, school managers and educators, representatives of religious organisations, academics, and wider publics. ] [8: i have explored this further in cooper 1994; 1998.] in the final part of this essay, i consider how organisational staff may informally seek to exercise responsibility for gender’s symbolic inequalities and alignments. my discussion draws on a fictionalised micro-scenario based on a personal experience a few years back: of an interview panel with three women and one man (or so it seemed), where the question was posed of who should chair, and whether it should be a woman. the experience, and particularly the awkward uncertainty surrounding the ‘naming’ of gendered subjects in the room, places some of the challenges of pursuing feminist politics – in conditions of gender’s growing privatisation – in sharp relief. what it also reveals is the entanglement that minor, seemingly trivial, gender-based dilemmas can generate as personal identifications and attachments get tangled with socio-political interventions. can gendered statuses be named or is this to make improper assumptions about what people are? do people carry gendered meanings beyond those they intend to express? and how can these be addressed? one challenge is how to understand and engage with the social/ personal “knots” which contribute to (and often drive) public and legal discourse when it comes to gender and other relations of inequality. my example concerns one micro-scaled interaction; however, political symbolism, representation, gendered styles of practice, and good optics routinely emerge at larger scales in relation to affirmative action initiatives, such as women-only parliamentary shortlists (discussed in cooper and emerton, this issue). to explore how responsibility for redoing gender is taken up and challenged in this interview panel example, i draw on the dramaturgical concept of the “scene” (see also edelman 1985; hajer 2005). scenes, such as this one, confront the complexity of gender as socially patterned, increasingly de-standardised, personally invested in, and subject to competing frames of intelligibility around what gender is, means, and does. as such, it also confronts the challenge of sustaining a critically attentive relationship to gender where no option or way forward seems fully satisfactory given what else is at stake. gender as private identity accounts of gender as self-determined (or self-identified) routinely treat gender as something that is, and should be respected as, “deeply personal” (davis 2014: 48).[footnoteref:9] as one set of british guidelines for transgender children in schools states, “gender – the way that a person feels about themselves in relation to their physical and mental self; the basis of their identifying as male, or female, or neither, or either, both” (sic).[footnoteref:10] in their response to the scottish government’s review of the gender recognition act 2004, stonewall scotland wrote: “someone’s gender identity is inherently private and individual, and should not be subject to another’s approval”.[footnoteref:11] legal scholar lena holzer (2018: 10-11) also describes how gender has become “a private issue” for some, quoting fellow legal academics marjolein van den brink and jet tigchelaar who suggest that gender should be identified “as a sensitive personal identity marker” (2015: 40). [9: for different ways of approaching this, see also katyal 2017; paechter 2006; quinan and bresser 2020: 7.] [10: https://www.cornwall.gov.uk/media/13620644/schools-transgender_guidance_booklet-2015.pdf, p. 16: last accessed 17 august 2020.] [11: https://www2.gov.scot/resource/0053/00539455.pdf; last accessed 2 september 2020. ] the notion of gender as personal or private dovetails with a gender-as-identity approach. but what does it mean to describe gender in this way? discourses of privacy, in other contexts, signal seclusion. seyla benhabib (1993: 106), discussing arendt (1958), locates it in aspects of the “‘domestic-intimate’ sphere” that are “hidden from the glare of the public eye”. private can identify a space – of dwelling and domesticity, or a zone of non-intrusion; it can identify an individual relationship of property or belonging,[footnoteref:12] a lack, or something that is non-political, un-staged, intimate, and unaccountable. not all these meanings of privacy come into play in relation to the political expression and development of gender-as-identity. instead, here, a cluster of meanings assemble around self-realisation, voluntary disclosure, comfort, and intimacy (see also cannoot and decoster 2020). this cluster mirrors a similar constellation of meanings, norms, and practices that cohered in late twentieth century liberal discourses on homosexuality, also around the terms of privacy. homosexuality became depicted as intimate, personal, self-realised, and entitled to protection to insulate it from conservative attack as well as from a more radical and expansive politics of gay liberation and political lesbianism. in relation to both gender and sexuality, privacy validates norms of protection and formal equality rights, rationalised by the value (or inevitable presence) of gender and sexual orientation as necessary features of self-growth and self-expression. [12: feminist scholarship has explored the relationship between gender, property, and possession in different ways; see for instance, butler and athanasiou 2013; davies 1994; katyal 2017; nedelsky 1990; see also cooper and renz 2016.] claims to privacy can be important; however, as a political account of gender (as well as of sexuality) it has its limits. for the discussion that follows, two stand out. first, discourses of privacy locate gender within individual subjects, as something which belongs to subjects in intimate, proprietary, responsible ways, rather than to society. valeria venditti (2020: 69) writes, “gender identity sanctions the autarchy of the subject. the very concept of ‘self-determination’ rules out of the legal sphere the relational aspects of gender. the sovereign rhetoric deployed in the law clashes with the hurdles that arise in the social unfolding of gender.” in other words, privacy as self-determination risks treating the subject as the author of their own gender; a gender that is unshaped by other forces, including other gender norms and practices. second, discourses of privacy trouble and tend to delegitimate the place of critical engagement when it comes to questioning the values underpinning gendered norms, practices, and forms, or in reimagining what gender could become. these two problems shape the discussion that follows, which focuses on gender’s “public” life – a concept i use expansively to explore the unequal, socially patterned, staged, and shared ways that gender operates. my discussion foregrounds the institutional character of this life, but it is not only in these accounts that gender’s public dimensions appear. gender in public despite the growing pervasiveness of norms that treat gender as a private dimension of personhood, gender’s presence within british public discourse is unquestionable. today, in britain, gender is discussed and argued over in ways that seem quite remarkable given prevailing understandings of gender only a few years ago. feminist, transgender, and non-binary perspectives have quickly become part of public and media discourse;[footnoteref:13] employers incorporate (or are urged to incorporate) new gender categories;[footnoteref:14] and concerns over anti-trans sentiment and transphobic behaviour more generally have raised public awareness of the normative pressures of gender conformity and transgression’s costs.[footnoteref:15] much of the recent public focus on trans and non-conforming gender identifications foregrounds the importance of being “seen” and validated by the state (or by employers and service providers) as recognition becomes a pathway to dignity and respect.[footnoteref:16] recognition is also advocated for material reasons where its absence causes some identities, and sometimes also some bodies, to be excluded or erased from spaces, services, and activities (see ryan 2018; spade 2015). [13: e.g., see arwa mahdawi, “he, she, they … should we now clarify our preferred pronouns when we say hello?”, the guardian 13 september 2019: https://www.theguardian.com/lifeandstyle/2019/sep/13/pronouns-gender-he-she-they-natalie-wynn-contrapoints; last accessed 3 september 2020.] [14: e.g., see for instance, https://www.essex.ac.uk/-/media/documents/directories/human-resources/supporting-trans-non-binary-staff.pdf and https://www.personneltoday.com/hr/gender-identity-pronouns/; last accessed 3 september 2020.] [15: e.g., see hackney council inclusive language guide: https://hackney.gov.uk/equality-diversity; last accessed 3 september 2020. ] [16: see christie elan-cane, evidence to the women and equalities committee, transgender equality inquiry, 13 october 2015, hc 390, p. 32: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/women-and-equalities-committee/transgender-equality/oral/23159.pdf; last accessed 25 february 2019; also james morton, evidence to the women and equalities committee, transgender equality inquiry, 13 october 2015, hc 390, p. 13: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/women-and-equalities-committee/transgender-equality/oral/23159.pdf; last accessed 25 february 2019. ] in his discussion of transgender politics, paddy mcqueen (2015: 121) takes up cillian mcbride’s notion of a “deficit model” of recognition, in which the problem is unevenly distributed resources of acknowledgment and address, such that some have very little or none. yet, while gaining “proper” or adequate recognition has proven an important dimension of contemporary gender activism, the concept of public also signals other kinds of politics, including those organised around interpersonal relations and action within everyday life.[footnoteref:17] here, new gender meanings are asserted, inhabited, and developed, as actors (deliberately or otherwise) challenge conventional gender norms, including those of gender intelligibility (e.g., see nordmarken 2014). also posed, as well as troubled, in the process is the connection between gendered forms of public appearance, and personal identification or feeling. for the most part, public expression of gender diversity is advocated (and justified) on the grounds it reflects an inner gender. since this gender is a core aspect of someone’s personhood, they have the moral (and so should have the legal) right to express it freely and safely within the public sphere. gender-as-identity approaches, such as the international human rights yogyakarta principles, recognise that gender identity and expression may not converge;[footnoteref:18] and people should not have to give shape to their inner gender in any specific way. however, both should be protected (see also butler 2015: 61). public gender expression forms a part of personhood even if it does not coincide with someone’s gender identity. [17: there is an interesting resonance here with arendtian perspectives on the public realm, which focus on the courageous creation of new meanings, practices, and relations through action in front of and with others; see also butler 2015; dossa 1989; honig 1995.] [18: the yogyakarta principles plus 10, adopted 10 november 2017, geneva: http://yogyakartaprinciples.org/wp-content/uploads/2017/11/a5_yogyakartaweb-2.pdf, p. 6; last accessed 30 august 2020. ] elsewhere, i have explored some of the difficulties in identifying, in non-stereotypical ways, what gender means in this approach (see cooper 2019a). but what interests me here is the relationship between gender identity and expression, on the one hand, and an institutional account of gender, on the other. if gender is a legitimate terrain of political engagement, where do gendered subjects and personal gendered investments fit? liberal approaches treat gendered subjects (particularly adults, but not only adults) as the agents of action and the holders of rights, as they also treat them as the source of their own gender identity and meaning. yet, if we typically communicate more and other than we intend, what does this mean for gender? gender critical feminists, who treat sex as immutable, suggest “male bodied” persons express male power regardless of how they identify.[footnoteref:19] i do not pursue that argument here; at the same time, i am reluctant to treat gender – as currently understood and manifested (that is along its current conceptual lines) – as something that exclusively belongs to, and is controlled by, the gendered subject, given the complex factors that shape how gendered subjects and practices emerge, are enacted and read, and the complex factors that shape what follows. if gender exceeds our own personal projects of identification – or the social-cultural-psychic maps that normatively orient us even when we repudiate their terms (see also jenkins 2016, 2018), if gender is a social process, fundamentally, rather than a personal trait, how gender is made becomes important. such scenes of making exceed subjects’ gender identifications but, in the sites that i discuss, they simultaneously are compelled to engage with them. [19: for one elaboration of gender critical views, see forstater v. cgt europe and others et 2019, case number 2200909/2019.] the discussion that follows explores the relationship between social inequality and individual identity through the register of responsibility. when gender is primarily understood as a private attachment, public responsibility takes a specific form: namely to protect and empower people’s gender-property so subjects can express their gender as freely and fully as possible. much contemporary activism around gender aligns with this approach. but if responsibility for gender aims to counter gender’s socially pervasive and asymmetrically patterned character – its capacity to structure and shape state apparatuses, social divisions, norms, and epistemologies as well as people’s activities, assumed roles, desires, and interests – how should we account for this gender? over many decades, feminist theory has drawn on different conceptual frameworks and figures to encapsulate gender’s form, from axes, systems, regimes, and organising principles to performances, language, grammar, doings, and discourses. across and within these approaches (since they give rise to multiple versions), different cuts and joins in how gender is imagined, actualised, and in the movement between the two come into play. here, i focus on gender’s institutional dimensions – as one register of publicness that treats gender as a social patterning with force. institutional thinking has its limitations. but what is useful about it, in this context, is its emphasis on durability, inequalities of power, and the ways in which different social features cohere to form something forceful and meaningful. these qualities provide the impetus for taking responsibility, as i go on to discuss. gender’s institutional dimensions a tremendous body of feminist work, too extensive to enumerate, has detailed and analysed gender’s durability and significance within social life: how gender shapes people’s desires, behaviour, and choices; relations of violence, exploitation and discrimination; and the development of social institutions, from schools, economy, and law to the very notion of public and private domains. one useful strand of feminist work explores how gender shapes (and is embedded within) other institutions, including those of government (e.g., chappell 2006; lowndes 2020). while i am concerned in this essay with a governmental exercise of responsibility in relation to gender, i also want to consider the institutional qualities of gender itself. patricia martin (2004) helpfully sets out twelve institutional dimensions, which she argues gender shares (see also lorber 2000; risman 2004). these include social practices that persist across space and time, specific roles, procedures, rules, norms, social expectations, embodied agents, tangible things, and self-legitimating ideologies. thus, we might consider gendered practices of empathy and violence; parents’ and workers’ roles; the procedures and rules in place for establishing and changing one’s legal gender status; how gender imbues life-course expectations, bodily movement, and care-work; the gendering of clothes, toys, novels, and dance; and ideologies that depict gender differences as natural, elective, or something else. in exploring gender’s institutional character in britain, it is important to recognise the parts that other social relations and processes play, including race and class (e.g., see anthias 2008; crenshaw 1989; grabham et al. 2008; walby et al. 2012). it is also important to recognise gender’s institutional inconsistencies; how gender can take multiple forms; shifts and blurs; and is challenged and remade by different kinds of social agency (see also connell 1987; risman 2018: 36). these elements of multiplicity and contingency, shot through with inequalities of power, are foregrounded within critical institutional writing (see cleaver and de koning 2015), which also emphasises the place of “bricolage”: as “people, consciously and non-consciously, assemble or reshape institutional arrangements, drawing on whatever materials and resources are available, regardless of their original purpose” (cleaver and de koning 2015). at the same time, central to an institutional approach are the linkages (if not necessarily inevitable linkages) between different aspects of gender’s patterning. much feminist work focuses on these, since it is the arrangements and connections between bodies, resources, experiences, statuses, options, and power – in all their inequalities – which make gender critically intelligible (see also markovits and bickford 2014). gender’s intelligibility, however, does not take a common unitary form. current struggles over the authenticity of self-identification reveal the heightened levels of disagreement that exist regarding gender’s institutional character, particularly its key statuses, relations, and harms. while different perspectives exist, two have come to dominate public debate. one “side” focuses on the privileged status of “cis” gender,[footnoteref:20] and the harms caused to those who cannot or choose not to conform to a stable, dualist framework; the other “side” focuses on the gender-subordinated status of women, and the harms that make up this subordination (see peel and newman, this issue; also cooper 2019a; pearce et al. 2020). these diverging accounts draw on, and give shape to, different cuts and joins in gender’s material life, as they also, in turn, act upon it. nevertheless, despite these differences, and the changes in gender’s institutional form which i turn to shortly, recognising that gender has a patterned life that is forceful and un-equalising is crucial if gender is to be treated as having the necessary durability, systematicity, and social force to matter, and so give rise to relations of responsibility. in the absence of such patterning, gender loses its critical salience as a contemporary socio-political category. [20: the term “cis” is used to identify people whose gender (or sex) is assumed not to have changed from the way they were classified at birth.] responsibility for gender responsibility is often approached, particularly in legal contexts, as a set of obligations activated through retrospective lines of causation. in other words, responsibility arises from tracking what a body has caused or, at least, has benefited from. critical theorists have complicated and collectivised this account of responsibility (e.g., young 2006). however, past-facing questions of causation and culpability are not my concern here. since gender is ongoing, contemporary, and ubiquitous, a more useful way of framing responsibility, for my purposes, focuses on the responsibilities that flow from different bodies’ capacities, given the power they exercise, to respond to social arrangements that are hazardous, normalising, and animating, that have been inherited, and that continue to act (see also cooper and herman 2020). but if responsibility comes from an ability to make a difference, what does responsibility for gender entail? responsibility is often associated with maintenance – keeping something in good working order. in this sense, responsibility may be vigorously mobilised to re-discipline and order gender, as a “complementary” and hierarchical relationship, as the christian right has long attempted. for social conservatives, more generally, responsibility for gender as an institution is to keep it up and to assign responsibility for its upkeep. but responsibility for gender can work in other ways. many have written about the work and attention people put into their own gender-performances, as they assume responsibility for personal gender maintenance in conditions where failure or breakdown may cause other bodies – formally or informally – to intervene (see bartky 1988; west and zimmerman 1987; wilchins 1997). however, maintenance-oriented responsibilities are not the kinds of responsibilities i want to consider. in their contributions to this special issue, both sumi madhok and vanessa munro helpfully draw attention to responsibility’s risks, when it works to individualise or disempower, and so reinforces existing inequalities and geopolitical relations of control. with their hesitations in mind, i want to consider an outward-facing responsibility for remaking and unmaking gender. in doing so, i focus on the challenges, and sometimes tensions, that have arisen for governance bodies navigating feminist concerns about gender’s imposed asymmetric force alongside newly emerging concerns that self-identified gender claims be acknowledged and respected. the encounters (and sometimes confrontations) between different political agendas take shape in organised equality governance policies, initiatives, and provision, as well as in organisational scenes of micro-action. while the first foregrounds official, front-stage enactments, the second attends to what is undertaken backstage, when organisational workers deploy the resources, roles, and spaces they occupy for supplementary ends. equality governance has long approached gender as an institutional problem of barriers and brakes necessitating reforms to remedy unfair rules and norms, and empowerment strategies for those subordinated by them. these responses to the problems that gender poses were also identified in interviews, conducted as part of the project on the future of legal gender, with those holding an organisational equality brief. interviewees described the need for: “measures [] to try and help natal women overcome disadvantage that's linked to their reproductive functions. for example, a lot of problems in employment can be linked to pregnancy and maternity discrimination… [there’s also] the long-term disadvantages suffered over the lifetime of a woman’s working career, because of disruption and things like that.” “what we are trying to do is identify the barriers that you might experience as a student and as an employee because of your gender.” “let's say, think about education. you are thinking about the curriculum, is it relatable to girls, as well as boys? thinking about achievement between girls and boys, and what is holding girls back or what's holding boys back.” “it is about empowerment, i think, isn’t it? and it’s about … i use the word, equality. it’s about having protected characteristics and having some sort of disadvantage or prejudice or reasons why you are not able … you are not on an equal playing field with your neighbour and trying to overcome those issues so that it's, you know, fairness and the rest of it.” long-standing concerns with the unequal social field that women, particularly, have faced, have been accompanied more recently, and in some cases confronted, by a different set of concerns. gender here is less a name for asymmetric disadvantage and barriers than a descriptor of needs and interests. several interviewees described the institutional changes needed and being undertaken to recognise different kinds of gendered subjectivity. “post-equality act [2010], they were really keen for us to start collecting … data. we ask whether people are male or female, whether they are non-binary … and that would generally be used as a starting point for service needs and specific questions as well.” “i do think that it’s useful to name the groups that we work with, so pregnant women, pregnant trans men, pregnant non-binary people, they have very different experiences and different needs.” approaching gender as an institution with multiple subject-positions, equality governance interviewees stressed problems of exclusion and erasure. “if you are not identifying as either [male or female] then you are being made to make a fixed choice, which cuts at the heart of who you are as a person. … will you not receive a service because you are non-binary? no, you won’t not receive a service, but in order to receive that service, in some instances, you are receiving it as a man or a woman.” “so, when we did the trans needs assessment… non-binary came out as quite a large proportion of that... there was quite a number of issues. and one of the things that came out was the mx honorific… again, it's this thing about labels actually being, in some regards really, really significant for people. if i can't tick the right box on the form for my honorific, for my gender, then i don't exist.” recognition for other gender identifications was described as essential, even as it challenged the conventionally established ways that governmental organisations responded to (and enacted) gender. “if we didn’t say non-binary, there would be a whole load of people in the city that don’t exist. literally don’t exist. we are trying to be explicit because we want non-binary people to come and join the council perhaps in recruitment, or we want to make sure that they are recognised. so, wherever we have got – it’s more about recognising a community that’s there.” moves by equality governance staff to enact norms, rules, and forms of address in line with a self-determined account of gender demonstrate a soft form of decertification. while people continue to bear a formal legal sex/ gender status, this status was treated as non-determinative (or less relevant) in a range of circumstances, where self-identification was considered more salient. this move to self-identified gender, however, did not go uncontested. one significant challenge came from advocates of women’s sex-based rights, concerned with women’s sex-based vulnerability, and their need for protection from violence, harassment, sexual intrusion, and male dominance (see also peel and newman, munro, this issue). there is a long critical history regarding the place of vulnerability and protection within feminist politics – not least because of its socioeconomic, racialised, and sexualised implications (e.g., see hunt 1990). however, discourses of vulnerability rose to prominence within public feminist discourse in the late 2010s in the course of opposing legal reforms to relax how gender categories and the movement between them were to be regulated. demands to retain sex-specific provision, based on narrowly defined notions of who constituted a woman, provided a strategic claim and, also, a goal within the struggle over gender’s classificatory terms (see also bailey 2008: 579). equality governance actors, we interviewed, described the political pressures within their sector to respond to activist demands that the distinct legal status of sex be given proper recognition. “we have had challenges – we had a challenge about the fact that in some areas of our … in some of our wording, we use “gender” rather than “sex” or “sex and gender”. we thought, okay, actually, that is a fair challenge, because the protected characteristic in the equality act is “sex”. if you are listing it, you put sex; that’s fine. in some of our internal documents we actually expand, and we explain what we mean, or we put “sex/ gender”. we just think that’s fine.” “we do use – would prefer to use gender because it’s a broader term. you’ve also got to consider the issues of non-binary and things like this. but, under pressure, and in recognition that the legal term is actually sex…our response is, we will use “sex” when it is specifically about the protected characteristics. but at all other times, we would prefer to use “gender” when we are talking more generally.” in this way, equality governance became a site where disagreement between gender projects got played out: as one project coded public responsibility in terms of inclusion and recognition; and another focused on public bodies’ responsibility to undo the harms and injustices faced by women as a sex. yet, in this ongoing dispute over the use of sex and gender as categorical terms, what can get overlooked is the common ground between the two positions. one part of this common ground was their shared emphasis on social subjects – whether as the site of sex or of gender. focusing on subjects is, of course, important. it recognises that gender’s harms and injuries (including those associated with sex) are felt by people. it also recognises that organisational attempts at reform are carried out by sexed and gendered individuals who bring their own experiences, histories, and politics to the process. but one risk in foregrounding subjects is that it can normalise sex/ gender as something that just is. certainly, the equality governance sector addressed, and continues to address, structures of disadvantage, attending to gender’s institutional features, from stereotyping in schools to the criminal justice system’s response to sexual violence, to care-work norms and practices. however, the processes through which subjectivities become gendered (and, some would argue, sexed), the attachments and investments that form part of these processes, and the recognition of gendering as a social process, are rarely explicitly addressed. a subject-first approach coincides with a liberal understanding of gender in which people’s right to a (recognised) gender, and public treatment of gender as something of value, supersede more critical forms of political engagement. this creates problems for those feminist accounts which seek to question gender itself – not just the unequal allocations of goods that gender differentiations have historically been tied to. but should public bodies participate in this endeavour; and if so, how? given their institutional power and authority, participating in projects which challenge people’s self-identifications on the basis that they are the ideological effects of damaging gendering processes, treating certain people as proxies for excessively-powerful statuses, or articulating political goals and new common-sense norms outside of a progressive-liberal gender consensus can seem fraught. one striking refrain from our interviews was a felt public responsibility to be careful and proportionate, to mediate, build bridges, and be inclusive, a responsibility that interviewees characterised as expected of bodies, such as local councils, when engaged in equality governance. one equality officer told us, “i would not write a speech or kind of draft a note for my [chair] … that might have a… highly strident and polarising framing. … i think it’s just being sensitive that you can meet your legal duties and promote all the values that i have mentioned in a way that tries to bring people along with you and not alienate certain aspects of communities unnecessarily.” another remarked, “some people will say to us, well, there is a theatre called [], they’ve got gender-neutral toilets, why don't we have? we are not a theatre; we have to cater for the whole community. we are a council. we do have to – we have to strike a balance. we don't want to just sort of pander to the most conservative, but at the same time, we are serving the whole community.” yet, public bodies are not unitary formations, with a single ethos or approach; and treating them as singularities can miss the diverse (and sometimes divergent) agendas, activities, and norms of their parts (see also cooper 2016; 2019b: ch. 3). these parts include procedures, spaces, and objects; they also include human subjects. public bodies exercise responsibility for unmaking and remaking gender through the actions of their staff, clients, politicians, partners, and others. while these are sometimes undertaken explicitly in the organisation’s name, street-level actions and other micro-decisions can also involve informal organisational practices. here, actions may exceed what was formally intended or anticipated as human parts of public bodies pursue progressive gender norms, including norms that go beyond the official discourse of removing barriers, equalising opportunity, recognising group-based needs, or supporting individual rights. indeed, it may be in these seemingly less powerful, less official actions that gender’s structures can get named and confronted – at least symbolically. in my final discussion, i explore this process by considering one micro-scene of gender-based responsibility. given the minor (even trivial) status of this scene, i should stress that it has not been chosen for its importance to gender’s unmaking or remaking. rather, its utility lies in the informal organisational power it tracks, its invocation of the intractability – but also the pull – of symbolic dilemmas, and in how it exposes the complications generated by soft decertification and attendant moves to privatise gender. it concerns an episode in which a small group of organisational members were selected to fulfil a brief task: to interview someone for a job. together, they had to decide how to act. taking responsibility for gender’s unmaking or remaking can sometimes seem straight-forward – policies and action that respond to explicitly biased rules or stereotypical norms, for instance. but this was not the case here. instead, what seems, at first glance, an easy decision becomes increasingly complicated and uncertain. tracing the decision, and the gendered subjects on whom it rests, also brings a wider constellation of action into view. here, the dramaturgical language of “scenes” is helpful – not just as an interpretive frame, but as a concept that folds in particular forms of actualisation as well as imagining, including in ways that centre and decentre “the decision”. using informal organisational resources to take responsibility for gender taking responsibility for gender, as i have explored, can involve new policies, initiatives, and rules that seek to revise one room or corner in gender’s institutional house. but responsibility can also operate in less tangible ways – to involve, instead, a movement into a relationship of attention and social proximity as pat noxolo and colleagues discuss (2012), drawing on gayatri spivak’s (2008) work. this movement into attention became evident in this episode, where an attempt to symbolically resist gender’s unequal normative alignments momentarily redirected an organisational “scene”, away from what it was “supposed” to be doing.[footnoteref:21] it concerns an interview panel with three women and one man (or so it seemed), drawn from different parts of a large organisation. political and social theory typically equates the public domain of strangers and citizens with spaces and discourses outside of work (as well as outside of the home). yet, in contemporary post-industrial states, large workplaces often provide the sites where public relations of citizenship, acquaintance, and stranger-interaction take place as people who do not know each other (or at least not well) gather to perform a task. in the scene here, sifting through preliminary decisions before the candidate’s arrival, the question arose of who should chair. as mentioned at the outset, this is a fictionalised account loosely based on something that took place; so, let us imagine the boardroom table around which the four people sit, and one of them suggests that a woman should chair. the others look uncomfortable and indicate their surprise that such a suggestion has been made. but why? is it too intrusive and assuming, claiming something about those who are present that should remain unsaid? or is it that the proposal is too mechanistic: too simple and unsubtle for the complex relations of inequality at stake? what might taking responsibility for gender here entail? [21: my discussion of a “scene” is influenced by different currents of work on the dramaturgical dimensions of social and political practice. however, in contrast to some work, i do not rely on a division between performers and audience or treat a scene as necessarily invoking a powerful narrative or drama; for further discussion, see alexander (2017).] elsewhere in this special issue, robyn emerton and i explore a scaled-up version of the issues this scene poses. prioritising women on parliamentary shortlists and other forms of positive action – with their consequential need to “determine” what people “really are” (see also bailey 2008) – is often undertaken to change who or what is represented, who does the representing, and the style that representation takes. in the context of an appointment or job interview, it might be supposed that a woman chair would make women candidates feel more at ease and better understood; that it might shift the style of the interview, the questions asked, and deliberations on candidate performance afterwards; and that it might give a woman a welcome opportunity to chair. but while the last may be empirically true, the material benefits for users and recipients from having women in positions of authority, including political authority, is far from clear (see childs and krook 2009; childs and lovenduski 2013). thus, i want to focus instead on the cultural norms conveyed, where having a woman chair is intended to counter (or at least to avoid reinforcing) gendered assumptions about what authority looks like (see also chappell and waylen 2013; connell 1987). the association of authority with masculinity has long been something feminism has sought to counter. but suggesting a woman should chair an interview panel to avoid the “image” of a man commanding proceedings, flanked by three women, is also not a straight-forward proposition. one obvious and important complication is that gender is unlikely to be the only inequality, sutured to authority, at stake. if the decision is to help undo or refrain from reiterating normative codings of authority and power, then economic, racialised, dis/ability-based, sexualised, national and other social relations may also need to be considered in any pursuit of “representational justice” (see madhok, this issue). but does addressing these different relations depend on naming and identifying those who are present? how straightforward is this? in the case of gender, some of those present may identify with genders other than male or female or with no gender at all. we may think there is a man and three women, but this may be wrong. transgender people may be wrongly identified, but others may be also (see watson 2016).[footnoteref:22] the current momentum to privatise gender also may make it inappropriate to declare what other people are, assuming and asserting something that is for them, and only for them, to disclose if they want to. in a sense, the interview panel grouping might be construed as one of strangers where people, in richard sennett’s (1992: 63) terms, become “question marks to each other”. while people routinely make assumptions about each other’s gender, what acting-as-strangers suggests is that these assumptions are increasingly unreliable, difficult, and imperialising. in other words, gendered readings of others may be faulty in the sense of not corresponding with a person’s own self-identification. they may seem impossible where a person’s gender is unreadable or unplaceable within conventional categories. and ethically and morally, gender-based assumptions may be received as improperly intrusive or simply as being in “bad taste”. [22: one municipal space where the risk of misreading people’s gender identities has arisen is in sports and leisure centres. a council officer told us, “we are asking people not to try and second guess a gender when they come in. if somebody comes and says: where are the changing rooms? instead of immediately going, the female [changing room is] over there… to say: we have got a male changing there, a female changing there. there is an accessible changing room there and allowing them to make that choice. it’s about trying not to question people as they come in. and trying not to put them in that awkward situation.” ] then, there are other dilemmas. the argument that a woman should chair to avoid reinforcing the socio-cultural association of authority with masculinity may seem to prefigure gender – representing it as if it were otherwise; but this may be at the expense of a more authentic account of what the gendered hierarchy is really like. let us imagine that the man on the panel is more senior; does having a woman chair create a false or misleading optics? should hierarchical inequalities be presented as they really are? neoliberal tendencies to make things look good to mask or sanitise far more distasteful realities has generated much scathing comment.[footnoteref:23] but in the context discussed here, does a critique of masking and dissembling too quickly dismiss the performative work done by how things appear? this suggests that it may not be essential for the person who seems to be a man to identify as one, or for the person read by other panel members as a woman to identify as a woman all the time. personal gender attachments are not being asked for, assumed, or disclosed. what matters is what the scene is doing through its different parts – including human parts, not necessarily who (in a personal sense) is doing it. this also means that what the scene is doing will exceed what is intended, that it is interactively and collectively forged, heterogeneous (even multiple), and that it will be understood in diverse ways. [23: clothing companies’ use of cosmopolitan advertising visuals to present themselves as promoters of cultural diversity, while exploiting low paid workers in the south, has rightly been critiqued (e.g., hennessy 2013).] scenes do different things, and responsibility can face in different directions. it can represent what could be, including in prefigurative registers which treat this “could be” as if it is what “is” (see also cooper 2020). scenes can also represent what is critically – presenting power relations in their starkest polarity; and scenes can represent and enact dissention and change. scenes also involve action beyond what “appears”. i started with the optics in the decision of who should chair, but these optics (whether prefigurative or critical) may be complemented or complicated by what is said – as utterances reinforce, undermine or cut across what seems to be taking place,[footnoteref:24] for instance, the woman chair who repeatedly defers to a male panel member or makes sexist comments to interviewees.[footnoteref:25] in other cases, utterances may self-consciously mark a critical awareness of an inequality that, it is feared, will be reproduced by the optics of what appears. the verbal/written apology that is sometimes given for poor-appearing optics is one instance of this – why all the speakers at an event, for example, are men or white – an apology that rarely goes down well even as the reactions it encounters and provokes form a significant part of the scene (see also ahmed 2005).[footnoteref:26] exercising responsibility for gender can also take up other senses and movements. scenes of apology may involve gestures and action, such as people exiting in disgust. in other contexts, the optics of a senior man chairing an interview panel might be momentarily undercut by an avuncular pat as a woman lays her hand on his shoulder; or troubled by the lingering odour of stress, indicative of (or narratable as) tension – perhaps a row – prior to the job applicant’s appearance in the room. [24: the recent linguistic turn to “uterus” or “penis-havers” to counter the assumption that bodily characteristics align with sex demonstrates some current lines of contestation in the gendered politics of what is uttered; see cooper and emerton (this issue) for further discussion.] [25: this is a point which others have made in relation to the tensions between women’s descriptive and substantive representation; e.g., see phillips (1995).] [26: for a helpful discussion on the non/ performativity of expressions of commitment to antiracism, see ahmed (2012). political theory often focuses on what is visible, and what is said (and heard) – using idioms of speech, sound and vision that sit uncomfortably with feminist and critical disability politics. jacques rancière’s work in political theory exemplifies this tendency.] i have flagged gender’s institutional dimensions, in this essay, to foreground patterned relations, practices and norms that cannot be reduced to “my reproductive body” or “who i feel i am”. one limitation of contemporary discourses on gender is the emphasis placed on personal identity or sex-based subjecthood at the expense of socially formative gendering processes, including what gender might become. yet, focusing on who chairs an interview panel, as the target for responsibility’s exercise, may similarly seem to re-inscribe gender back onto subjects. it may not be the gender the person self-identifies as having; however, the analysis so far suggests that gendered scenes are made up of and delimited by the apparent (that is, legible) genders of those taking part. but scenes are not containers and magnifiers of human action alone. we can therefore think of the scene itself as making (and so, as also remaking and unmaking) gender through its objects, tempo, powers, constraints, spacing, bodies, talk, and other parts. as non-unitary arrangements, scenes can also carry and convey a range of political projects and registers, including ones that collide. a scene, for instance, may bear arguments in favour of sex-based rights, meeting arguments in favour of self-determination; and both may meet arguments in favour of a more structural approach to how gender operates. these arguments, importantly, do not only exist as utterances. scenes also enact claims through a range of material and practical actions. as such, we might think about people taking responsibility, collectively, for the multiplex character of what the scene is making and doing, rather than just for their own actions or for the decision that is taken – two conventional registers of accountability. decisions are often important. even micro-scaled ones, such as the question of who should chair, can draw people in. their oftentimes sticky, sometimes seductive, force holds participants in a relationship to the limited options available (with its risk of normalising or giving force to those limits). yet, as material and symbolic processes, decisions can also be granted too much weight. different literatures in political theory and policy studies have questioned the stress placed on the decision, demonstrating also how decisions can be thwarted, ineffectual, trumped, ignored, and unpredictable in their consequences (e.g., mackay 2014). discussion of responsibility can contribute to an imperial imaginary of the decision since responsibility is deemed to be exercised in and through the choices and determinations made. but responsibility can be approached in more polycentric ways. taking responsibility for the scene also means taking responsibility for what is excluded from it, for its effects, and for the histories that have bequeathed it a particular shape, as madhok points out (this issue). this is not necessarily a responsibility that imposes a practical duty to act, for this might prove impossible or ineffectual where the capacity to make a difference does not lie within the scene. even within the limited range of decisions that a scene constitutes as makeable, a correct response may prove impossible as the interview chairing decision reveals. here all options remain unsatisfactory since none can fully address the complex and divergent factors which they present themselves as a response to. gendered inequalities, authority’s alignment with masculinity, and the other relations of inequality at play, cannot be meaningfully undone or remedied by making a choice about who should chair. thus, we might approach responsibility instead, here, as a responsibility to enter into a relationship of attention, to notice, to care, and to exercise care. in organisational contexts, this may mean marking and drawing close those institutional processes that are routinely or officially constituted as too remote or commonplace to demand attention. in this way, micro-scenes, such as the one discussed, can temporarily adjust or put in motion a reordering in organisational geometries of concern. conclusion this essay has adopted a broad conception of gender’s public life to argue for its recentring within gender politics against the contemporary tendency to approach gender as an intimate property of the self.[footnoteref:27] this public recentring is not because individuals’ experiences of gender are unimportant – in fact, the reverse. to the extent that gender’s harms come from its institutionalised norms, power, and asymmetric effects, relegating gender to personal characteristic obscures its complex social character and force. it suggests already-gendered individuals meet a wider world that recognises or thwarts who they are. this ignores how gender is both made and making, that produces as well as restricts, as gendered social worlds shape, stimulate and redirect the formation of personhood, in the process rendering “the self” intelligible in hegemonic and, sometimes, counter-hegemonic ways. gender has a life that is not satisfactorily captured by either individual identification or natal sex; and it is this life, in its myriad settings – or rather as a life that takes shape through, and from, the myriad settings which help compose it, from schools and workplaces to gyms and prisons – that remains important. [27: for a contrasting depiction of gender’s association with property in this conflict, see kay green, “time for socialists to take action against gender stereotyping”, morning star 17 october 2019: https://morningstaronline.co.uk/article/f/time-socialists-take-action-against-gender-stereotyping; last accessed 17 august 2020. she writes, when “organisations like stonewall, pride and lgbt labour march into the heart of women’s territory, and declare it the property of others… even those who don’t object, but wish to negotiate the terms of the takeover – are called ‘anti-trans’” (italics added). ] today, progressive views on gender diverge along several lines. they diverge in whether gender should be undone or equalised; whether others’ gender expressions should be treated as sites of personal autonomy and self-making or as sites of political critique; and on whether the primary gendered divisions to be critically undone (or remedied) follow lines of sex or gender transitioning status. yet, to the extent that gender is recognised as involving asymmetrically patterned differences, questions of responsibility for countering these myriad differences and their effects remain. how responsibility is done will vary with the bodies involved. grass-roots groups may address systemic relations and structures that public bodies pursuing progressive-liberal gender agendas may steer clear of, foregrounding instead the (self)identified needs of gendered groups and individuals. but public bodies do not act as unitary entities (or at least not only as unitary entities). to the extent that their composition includes human agency, actors may use the informal authority and power they possess to counter regressive gender alignments, as my final discussion explored. in this case, responsibility invokes the surplus capacity and power of organisational subjects who can do more than is required – who can use the spaces, opportunities, resources, and authority of their role for not anticipated (or more than intended) ends. while literature on street-level discretion typically focuses on practical acts of micro-responsibility, organisational discretion can also be used symbolically to counter structures of power.[footnoteref:28] responsibility here may be less about making the right decision, in contexts where this proves impossible (or unknowable), and more about a readiness to bear some of the weight of being attentive and to where this may lead. as one council officer told us, worried about the danger of gender being forgotten, “the challenge is of keeping gender on the agenda…when we've got so many other things to consider.” yet, in pursuing responsibility, moments of non-responsibility, playful forms of irresponsibility, and the refusal to always be attentive, are also important to consider (see munro, this issue). public bodies may sometimes seek to close-down scenes of contested or unofficial responsibility-taking on grounds of illegality, impropriety or because they distract attention from “more important things”. but progressives may also consciously take a break from their assumed responsibility to remake or unmake gender for reasons of self-care, play, to gain critical distance, or to take care of other stuff (e.g., see halley 2008). [28: one controversial micro-drama i researched in the 1990s concerned a london primary head teacher, jane brown, who turned down subsidised tickets to take her pupils to the ballet romeo and juliet claiming, to the promoter, that among other reasons the play could be described as “heterosexist” (see cooper 1998: ch. 5). while jane brown received marked support within the local community, others denounced her actions as irresponsible, and as placing sexual politics above working-class children’s need to access england’s “high” culture.] running through this essay has been the question: what responsibility is gender due? the growing momentum for self-determination suggests gender is due respect, recognition, and at times the state’s classificatory withdrawal. while recognising the sharp concerns that underpin this formulation, this essay has taken a different approach: to explore the critical attention that remains important since gender’s shape is a social shape that exceeds its conventional human outline and contours. critical attention towards gender on account of its asymmetrical institutional force is a well-established aspect of feminist analysis. the question this essay has posed and traced through two sites where the challenge of soft decertification has surfaced is: what does critical attention mean; and how can responsibility be taken to unmake or remake gender in conditions where gender is also claimed as personal, even private, and so unmoored from the limits and restrictions of an imposed binary structure? references ahmed, sara. 2012. on being included: racism and diversity in institutional life. durham, nc: duke university press. ———. 2005. the politics of bad feeling. australian critical race and whiteness studies association journal 1: 72-85. alexander, jeffrey c. 2017. the drama of social life. cambridge: polity press. anthias, floya. 2008. thinking through the lens of translocational positionality: an intersectionality frame for understanding 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philosophy and policy 23 (1): 102-130. _____________________________________________________________________________________ 20 _____________________________________________________________________________________ 19 emily grabham exploring the textual alchemy of legal gender __________________________________________________________________________________ feminists@law vol 10, no 2 (2020) __________________________________________________________________________________ exploring the textual alchemy of legal gender: experimental statutes and the message in the medium emily grabham[footnoteref:1]* [1: * professor of law, university of kent, uk. email: e.grabham@kent.ac.uk many thanks to tasniem anwar, davina cooper, alain pottage, flora renz, helen xanthaki, participants at a 2019 future of legal gender colloquium where a first draft of this paper was shared, the people interviewed for this research, and the anonymous reviewers for feminists@law for very valuable feedback on previous drafts of this article. any errors are my own. this research has been funded by the esrc through the future of legal gender project, es/p008968/1.] abstract this article draws on original empirical research to explore the politics of experimental feminist statutes. it has two main aims. first, it traces how conventional legislative drafting techniques have participated in the wider social creation and continuance of sex/gender norms. it shows how dominant statutory expressions of sex and gender that might otherwise appear timeless have shifted with social change and legal innovation. the article contributes to debates in feminist legal studies, legal anthropology, and legislative drafting by making visible, and analysing the particular power of legislative text, its ‘alchemy’, in expressing and re-creating sex/gender as a social, cultural and political artefact. second, drawing on this research, the article explores what the future of legal gender project might consider and do when drafting an experimental statute to decertify legal gender. addressing questions of positionality, believability, legal form and the use of potentially innovative or contested drafting techniques (the singular “they”, the second person), the article explores tensions between legislative drafting and feminist legal method, as well as the benefits for bringing feminist analysis and perspectives to this important aspect of legal practice. given that legislative drafting does not merely inscribe pre-agreed policy ideas into legal text but helps to shape emerging ontologies of gender, then drafting an experimental statute invites feminists to pay attention to interlinked questions of substance and form in the exploration of prefigurative legal futures. … what i really want is for all the many gendered possibilities in the world to be, not normal, but rather profoundly ordinary and familiar. (eli clare, 2015, p.xxviii) the medium is not the message. (office of the parliamentary counsel drafting guidance, july 2018) introduction feminist legal research aims to understand how law shapes and limits social life, creating inequalities through gendered norms, practices and processes. this article contributes to such debates by exploring how legislative drafting supports the social construction of sex/gender – in other words how the writing of statutes has both drawn on and created powerful sex/gender norms.[footnoteref:2] legislative drafting is the practice of writing primary or secondary legislation for later debate in parliament and, depending on the outcome of those debates, eventual enactment into law.[footnoteref:3] as is evident from the current special issue, for the past two years i have been working on the future of legal gender project, an interdisciplinary research project that critically explores ways to reform the status of sex/gender in the law of england and wales.[footnoteref:4] our research is currently engaged with thinking through what it would mean for feminist legal scholarship and activism if gender were decertified in law – in other words, if the state no longer officially determined, guaranteed or registered required sex/gender and changed the law to reflect this (see further cooper and renz, 2016). what would be the implications for feminist politics if sex and gender were dis-attached from a legal edifice that stretches through the life course? this is an experimental or ‘prefigurative’ initiative, in other words, which engages with present and legal policy debates through a law reform question that has ‘not yet officially been asked’ (see cooper, 2018, 2020). [2: i am using the term sex/gender for two reasons. first, sex/gender refers to the mutual inter-relationship between concepts, embodied experiences, and social processes that support sex and gender. this term acknowledges the power of processes of social gendering, which often incorporate dominant concepts about sex and in turn have very strongly affected how sex has been interpreted as a ‘fact’ by a wide range of social actors. second, across many statutes and in wider literatures on legislative drafting, the terms sex and gender have not been used consistently to reference distinct social, physical or other facts or meanings. in this sense, i also use the term to reference the conceptual, semantic, and political unsteadiness of the words ‘sex’ and ‘gender’. where necessary in the article, i refer to the precise term that drafters, statutes, or commentators themselves use.] [3: some forms of secondary legislation do not require debate in parliament. see further: https://www.parliament.uk/about/how/laws/secondary-legislation/ (last accessed 24 september 2020).] [4: see further: https://futureoflegalgender.kcl.ac.uk/] part of such an inquiry is to create an experimental statute that performs the ‘decertification’ of sex/gender. as such, the current article draws on in-depth interviews with legislative drafters and feminist legal scholars to explore the politics of drafting sex/gender.[footnoteref:5] this is an engagement with text and form; drafting as feminist method. my research in this area has led to the belief that legal substance and legal form are inextricably linked, and that we might usefully pay attention to the power of drafting itself as much as our prefigurative thinking and substantive suggestions for law reform. given this, i have two main aims in the present article. the first is to explore what legislative drafting does, and has done, to participate in the wider social creation and continuance of sex/gender norms. as the article shows, dominant expressions of sex and gender in statutes that might otherwise appear timeless have shifted with social change, legal innovation and new bureaucratic forms. whilst legislative drafting experts and socio-legal scholars have explored the history of sex and gender categories in legislative drafting practice (petersson, 1999, 1998), as well as the politics of gender neutral (king and fawcett, 2018; wilson, 2011; xanthaki, 2019) and gender silent (revell and vapnek, 2020) drafting, this article focuses on the particular power of legislative text, what i come to term later on in the article its particular ‘alchemy’ in expressing, performing, and re-creating sex/gender as a social, cultural and political artefact. [5: this article draws on the data from one double interview and four single interviews of drafters and drafting experts in england, wales, scotland, australia, and new zealand, which took place between april 2018 and july 2020. interviews were secured on the basis of longstanding research contacts, performed in person or via skype, and transcribed for later analysis. this represents an adequate sample for the purposes of this article as the international community of legislative counsel is small and interviews with currently practicing drafters, in particular, are difficult to secure. in-depth interviews were also performed in the same period with five feminist scholars with experience in feminist judgment projects or legislative drafting. care has been taken to anonymise participants unless particular identifying information is needed to explain context. ] this is a distinct approach to legislative drafting that engages feminist legal scholarship in dialogue with debates in legal anthropology about the ‘agency of legal form’ (riles, 2016, p. 808): the power of legal knowledge to shape social reality.[footnoteref:6] as annelise riles puts it: ‘we can speak of legal categories and techniques as generative of certain kinds of social, political, and epistemological realities’ (riles, 2016, p. 808). my aim in this article is to connect feminist concerns and experiments with legislative drafting to scholarship in legal anthropology and socio-legal studies that analyses the craft, politics and institutional dynamics of legislative drafting for their effects on the making of law and legal subjects (pottage, 2014; pottage and mundy, 2004). legislative drafting techniques have not been consequence-free for feminists; they have helped usher in specific legal and textual formations with attached concepts and ontologies that have travelled far and combined with other long-lasting bureaucratic and wider social understandings of sex and gender. as such, we might try to understand not only how legislative drafting has apparently responded to social changes concerning sex/gender equality – for example through ‘gender neutral drafting’ – but also how the sex/gender constructions and innovations used in drafting themselves support complex wider social processes of gendering. [6: such an enquiry will in future turn to marxist debates about legal form and their relation to capitalist modes of production, through engaging with the work of evgeny pashukanis and others. many thanks to davina cooper for suggesting this line of analysis and to moritz neugebauer for increasing my understanding of the significance of pashukanis.] the second, related, aim is to explore what feminists are engaging with when we participate in the act of drafting an experimental statute. if legislative drafting does not merely inscribe pre-agreed policy ideas into legal text but helps to shape emerging ontologies of gender, then both form and substantive content are important aspects of prefigurative feminist legal projects such as the future of legal gender. here, the argument is that the method matters: the act of writing an experimental statute pulls us into relationships, norms, professional debates, and epistemologies of expertise and governance that are likely to fundamentally affect what we think is possible and what we can achieve. over the past decade or so, feminist engagements with law have increasingly turned to legal form, engaging with judgments in many jurisdictions, for example, through ‘feminist judgments projects’ that adopt or challenge the traditional conventions of judicial reasoning to varying degrees in exploring what it would mean to create law otherwise (enright et al., 2017; hunter et al., 2010). feminists have often also engaged in law-writing projects, either as part of established international legal processes, for example (riles, 2006), or as a means of working through an aspirational text for feminist law reform purposes, as was the case with an aspirational ‘model for change’ for feminist abortion law reform in ireland, drafted in 2015 by a group of feminist legal academics in advance of the successful campaign to repeal the eighth amendment to the irish constitution, thereby paving the way for the removal of the constitutional ban on abortion (enright et al., 2015a, 2015b). inspired by such engagements, my aim is to foster debate about the meaning, potential and pitfalls of legislative drafting for feminist purposes. what understanding of statutory law and its gendering power does this task bring with it? what opportunities and drawbacks attend such initiatives and what do they bring forth? in the following sections, i introduce the practice of legislative drafting and then tell one of many stories that could potentially be told across diverse jurisdictions and colonial contexts about the relationship of sex/gender to legislative drafting – the story of the development of certain approaches to sex and gender in english law culminating in current debates over gender-neutral drafting. whilst gender-neutral drafting and other similar techniques might appear to do little to shape the substantive content of statute, they are enmeshed in powerful webs of gendered norms, meaning, and symbolism that provide useful material for feminists to consider. i begin by tracing the genealogy of the ‘he or she’ construction, an expression with its own attached epistemologies that have been formed through shifting relationships with the use (or not) of binary gender pronouns. drawing on feminist research into the long history of legislative drafting, i then outline the distinct contribution of interpretation legislation to the legal drafting of gender, before engaging with original interview data to discuss more recent approaches to ‘gender neutral drafting’ that have evolved since the formal adoption by the previous uk labour government of a gender-neutral drafting policy in 2007. the article concludes by setting out some issues, opportunities, and challenges that the project may face when drafting an experimental statute decertifying legal gender. the message in the medium our language and our grammar is gender-specific. there is nothing we can do about that. (legislative drafting expert, 2019) because law is made up of words: words which are written in constitutions, statutes, reported decisions and negotiated agreements, and words which are spoken in courts and tribunals and other professional settings by lawyers and adjudicators, the use of language is fundamental to law. (mossman, 1995, p. 8) legislative drafting has a long institutional history and a foundational role in contemporary law-making (see greenberg, 2011). in the united kingdom, drafters now work in legislative counsel offices in london, cardiff, edinburgh, and at stormont. drafters write, rewrite, and settle the text of legislation in collaboration with government departments, testing instructions they receive from government lawyers, providing advice on the structure and likely effects of different legislative models and expressions, and drafting amendments where necessary (greenberg, 2011; page, 2009; xanthaki, 2015, 2014). the technical expertise of drafters is a common theme in conversations with lawyers and ministers, and it instantiates the drafting phase as an important process through which policy is materialised into legally effective language (grabham, 2016; xanthaki, 2014). it is relevant for our project that the work of drafters is still understood as highly technical and quite unique within the legal system as a whole (greenberg, 2011). we should be wary of assumptions that this technical focus somehow obviates the political significance of drafting more broadly. indeed, drafters have long been engaged in a struggle over the extent to which changing social experiences and definitions of sex and gender should be reflected, or made effective, through legislation. current debates about sex/gender and drafting have emerged from specific epistemologies of gender and structural discrimination, specific ways of imagining the political and social struggle of sex/gender inequalities as they relate to law, which have been especially influential since the late 1960s and 1970s, as second wave feminism began to permeate academic and legal professional circles. as will become clear, over the past few decades, professional communities of drafters and drafting experts have created technical solutions to these social struggles, mobilising their own legal practice in adjusting drafting to ameliorate, or at least not exacerbate, such gendered harms. as such, one object of our current study – understanding the potential role of drafting as a tool to pose an “as if” question – emerges against the backdrop of innovation and controversy in legislative drafting that has been, to very different degrees, responsive and future-oriented in terms of gender expression and inequalities, conjuring sex/gender as an object of attention in many different ways. the idea of one ‘best practice’ approach does not describe the plural, almost polyphonic sets of techniques and arguments on this issue that continue into the present. rather than attempting to make sense of these productively rowdy debates and ontologies, we are hoping to use them as resources when drafting our own experimental statute. yet in order to understand the legal and social context for these debates, we need to understand the contexts that have produced them. as such, this section provides a brief history of gender and legislative drafting, culminating in feminist challenges to the use of interpretation legislation to inculcate a ‘masculine rule’ in drafting. “he or she” a key assertion of this article is that the genres of sex/gender that have become so much a part of our institutional, social and cultural landscape have often been co-constructed through legal, textual, innovations. as such, they are also likely to change in the future. take, for example, the idea that binary oppositions of ‘he or she’ should provide a natural linguistic background to our conceptualisation of sex and gender and should structure our legal treatment of gendered experience and obligations. the ‘he or she’ binary is ubiquitous within social expression and legal and public texts (see further cameron, 1985; mills et al., 2011). as a feature of professional courteous language, it seems to reference an androcentric natural order that politely opens the door to women, signalling a public-facing yet essentially patriarchal type of post-world war two inclusion, with its tone almost of surprise, self-arrest, or afterthought (“or she”). yet the use of apparently binary gender pronouns has a long institutional history in english law, dating back to the mid-1500s if not earlier. and over that time, the politics surrounding the binary and its attachment to law have shifted several times, revealing multiple overlapping ontologies of sex and gender along the way. this is a story not only about centuries of sex/gender inequality in english law, but also about the unsteady grammatical basis for an apparently natural binary, and its relationship with the innovation and operation of interpretation acts as a modernist legal project. the story weaves in and out of third person pronouns. feminist legal scholars have long pointed to the problems occasioned by the lack of a non-gendered singular third person in the english language. the singular and plurals of both the first (i/we) and the second person (you) are not explicitly gendered. the third person is gendered in the singular (he/she) but not in the plural (they) (e.g., mossman, 1995, p. 10).[footnoteref:7] i return to this point later on when considering the potential for disruptive feminist drafting techniques. legislation is written in the third person, so the conditions exist for gendered differences to be inevitably structured into the text of the law itself through the use of binary, gender-specific pronouns. yet, as petersson demonstrates, the picture is not quite as straightforward as this might suggest. english law shows a history of highly variable sex/gender pronouns as language has evolved, along with distinct changes in how law has attached legal responsibility to these gender markers through statutory drafting (petersson, 1998). in middle english (1150-1500), pronouns changed considerably. in old english, hé referred to the masculine and héo to the feminine. for part of middle english, when the ‘o’ was dropped, masculine and feminine nominative pronouns were phonetically indistinguishable and ‘he’ was both masculine and feminine (petersson, 1998, p. 96). later, distinct pronunciations and spellings distinguished, again, between masculine and feminine such that late middle english saw the prevailing use of sche for the feminine (petersson, 1998, p. 96). using vagrancy law as an example, petersson shows that for many centuries, male terms were not consistently used in statutory drafting to represent women. by contrast, following an initial period of inconsistent pronoun use, a system of using female terms to represent women emerged in the elizabethan period with the vagrancy act 1572 and continued to the vagrancy act 1744. differences in wording in the 1824 version of the act made it even clearer when provisions applied distinctly to women. [7: the singular ‘they’ is discussed further below.] the shift towards distinct gender pronoun use in the elizabethan period could not have happened without the distinctions between nominative pronouns that had been reintroduced into middle english. as such, changes to statutory drafting – and the legal conceptualisation of identity along gendered lines – were dependent in part on the evolution of the english language. through the use of phrases such as “hee or shee” and “his or her” when both sexes were targeted, and “he” or “she” when one sex was targeted, elizabethan vagrancy laws referenced very real differences in status between men and women at that time (petersson, 1998). petersson terms this the ‘system of express reference’. the point about the system of express reference was that it recognised women’s distinct legal status under law, even as this status was often subordinate to men. for example, in the vagrancy act 1572, provisions suspending punishments for vagrancy on the basis of a property threshold were addressed only to men, and not to women, because women could not at that time legally hold property in their own name (petersson, 1998, p. 98). subordinate status therefore did not reside in legal invisibility or occlusion under an androcentric norm, it existed in plain daylight. when a statute affected both men and women, it would often employ both masculine and feminine pronouns. interpretation legislation: modernisation through the ‘masculine rule’ the system of express reference gave way to a new set of drafting norms – the ‘masculine rule’ – through an era of reform in the 1800s, through which interpretation statutes were used to pare down the statute book, making legislation more consistent.[footnoteref:8] this was part of overall efforts to render the statute book more manageable through a push to standardise and universalise common legal terms and definitions. the masculine rule was first introduced in the united kingdom in 1827 and included reference to the feminine within references to the masculine. interpretation statutes had previously been enacted in several british colonies (petersson, 1998, p. 103). as sarah keenan has shown, this process of colonial experimentation was at the heart of many modern law reform initiatives – such as land title registration, for example (keenan, 2017). this should make us attentive to the colonial histories and ongoing effects of large-scale law reform projects such as interpretation legislation itself.[footnoteref:9] [8: contemporary writing on interpretation statutes still references its objects of simplification, the avoidance of repetition, the promotion of consistency of form and language, and the clarification of laws’ effects (see xanthaki, 2013, p. 127).] [9: this point is the focus of ongoing research and due to limitations of space, will be addressed in future publications.] through a general wave of interpretation legislation in the 1850s and later, common defined words that were found throughout legislation were gathered together in a separate statute that was to apply to all others. and as petersson points out, the masculine rule was one of the earliest and most widely deployed examples of all the efforts at universal interpretation. however, legislative innovations and norms such as this were in constant tension with wider social movements. feminist legal activists were not dissuaded by the masculine rule in their efforts to achieve the vote, and indeed its inclusion within the abbreviation act 1850 led to an anxious flurry when some legislators perceived it as a threat to male-only entitlements. in a parliamentary debate in 1851 over a proposed repeal bill on this point, it was argued that one consequence of the rule would be to allow women the vote through reading women into those given voting entitlement (petersson, 1998, p. 107). these fears were later realised when 5,347 manchester women claimed the right to be put on the voting list on the basis that the representation of the people act 1867 should be read in conjunction with the masculine rule in the 1850 act so as to read women into the grant of the franchise to ‘every man’ with certain qualifications.[footnoteref:10] in this case, chorlton v lings (1868), the court stated that the legislature would not grant the franchise to women on the basis of an interpretation act. reading against the apparent meaning of the masculine rule, the judges reasserted the common law incapacities of women, including in relation to voting and public office (ritchie, 1975, p. 694). through important subsequent cases dealing with women’s inclusion within political and professional realms, the potentially radical effects of the masculine rule were asserted by feminists, only to be limited by judges’ use of context-related arguments (ritchie, 1975). this was in part due to the rule’s clarity, inclusivity and universal nature, which leant it to arguments that if all legal subjects were male, then all legal subjects should benefit from male entitlements. [10: chorlton v lings (1868) l.r. 4. c.p. 374. see further ritchie (1975, p. 693).] the argument here is that the apparently naturalistic and ubiquitous “he or she” binary found in much contemporary legislation and bureaucratic writing has a long and complex history, referencing fractious relationships between women’s distinct and subordinate status in law, gendered language (the very construction of nominative pronouns), and techniques for expressing sex and gender within statutes. the advent of interpretation acts forced the issue, occluding specific reference to genders based on distinct perceived social status or responsibilities with the ‘masculine rule.’ and the rule itself quickly became vulnerable to feminist legal attempts to re-seize the universal in pursuit of the franchise and other elements of civic status. yet despite these flurries of contestation, the masculine rule continued in the background over subsequent decades, driving drafting in such a way as to ‘promote uniformity’, constructing the legal sphere as apparently androcentric. as this drafter put it: the first interpretation act was 1850 … (t)he aim of the first act and subsequent ones is to promote uniformity. if you had within the interpretation act “he includes she”, that would obviously drive the drafting in a certain way. the people who hitherto said “he or she” because it wasn't clear if they said “he” it meant men would depart from that approach on the basis of now the background against which we’re legislating is this interpretation act. (interview with legislative drafter, 2019) feminism and the language of law: a ‘contaminated’ magic? as the previous section has shown, the practices, institutional dynamics, relations, epistemologies, and innovations associated with legislative drafting have helped fabricate diverse ontologies of sex/gender we see circulating in law at present. for reasons of brevity, this section turns to the question of how second wave feminists challenged legal language, with new and distinct perspectives on the politics of legislative drafting. motivated by feminist attention to gendering language (e.g., martyna, 1980; spender, 1980), lawyers and legal scholars from the 1960s onwards opposed the occlusion caused by the continued use of specific interpretation rules. canadian drafters and scholars watched as a now-famous debate played out in the pages of the mcgill law review in the mid 1970s between the revered canadian drafter elmer dreidger and the feminist lawyer margeurite ritchie qc, who differed on the question of whether the canadian federal interpretation act 1970 had failed to protect women in the context of feminist protests about the continued use of the masculine rule (dreidger, 1976; ritchie, 1977, 1975). these were debates about law, english, grammar, and the oppression of women. at the same time, however, critical legal scholars were turning to the power of legal language itself. in the late 1980s, karen busby argued that because of the unique power of language to construct reality, and because of its close connections with ideology, it was particularly necessary to trace the means by which legal language excludes and devalues women (busby, 1989). as busby put it, her task was to examine the idea that: ‘grammatical features of the legal register such as pronouns, generics, lexicon, semantics and syntax trivialize, exclude and devalue women and characteristics associated with women’ (busby, 1989, p. 192). she stated that analysing the language of legal text allowed a picture to emerge of its ‘preconstructions and preferred meanings’ that would allow better understanding of what law has emerged, with what implications for women (busby, 1989, p. 192). drawing on the feminist theorist mary daly, busby noted that legal language was in effect a ‘contaminated language’, which had been constructed along androcentric lines. this was a particular problem because of the tendency of law to place emphasis on legal signifiers or words, thereby creating a gendering symbolism that enacted exclusionary norms whilst simultaneously instantiating these norms as law through legal language in textual form. as wendy martyna put it, the widespread opposition that feminists faced in drawing attention to gendered and sexist terms was not merely due to antifeminism, but also perhaps to a cultural resistance against recognising the power of language itself: ‘we may still be in the midst of a cultural reaction against early preoccupation with the magical power of words’ (martyna, 1980, p. 492). many feminists at the time, and since, have understood the ‘magical power of words’ to go far beyond legal texts, encompassing a range of social and cultural expression. for feminist legal activists and academics in the 1960s and 1970s, the sheer power of language to shape and enact social norms when mobilised through law demanded a strategy that would intervene into legal text and expression, conjuring otherwise the magic of androcentric legal expression by bringing back in the neglected sex/gender. the results of these feminist interventions are inherently difficult to trace, leaving feminists curious about the social effects of language: … the more interesting question for me is, has it really changed? has language really changed the way people actually act? i don't know the answer to that. i do know that women have more opportunities than they had than when i started out. (interview with margaret wilson, former new zealand minister with responsibility for legislative drafting, 2019) yet the power of gendering language is now widely accepted within professional communities of legislative drafters. as the influential text thornton’s legislative drafting puts it: ‘the enactment of legislation in ‘masculine’ language contributes to the perpetuation of a male-oriented society in which women are seen as having a lower status and value’ (xanthaki, 2013, p. 80). reforming “he or she” reintroducing the feminine into statutory text has not been easy. an obvious target might be interpretation legislation itself. petersson identifies four potential reforms to the ‘masculine rule,’ for example: the two-way rule, the all-gender rule, the separate gender rule, and the removal of the masculine rule altogether (petersson, 1999, p. 36). the two-way rule is particularly interesting. it provides for words importing the masculine and the feminine to be read as each including the other. it was initially used in canada between 1837 and 1840 and much later adopted in the uk in section 6 of the interpretation act 1978: in any act, unless the contrary intention appears, (a) words importing the masculine gender include the feminine; (b) words importing the feminine gender include the masculine; (c) words in the singular include the plural and words in the plural include the singular. the rule is still in force. the ‘vice versa’ nature of the rule appears to bestow a certain form of binary equality between two genders – masculine and feminine. petersson’s criticism of the rule is that it is merely to be used in reading, rather than in writing, legislation, and so does not necessarily require a change to drafting practice.[footnoteref:11] the formal structure of the rule is an issue for petersson because it promotes ‘false neutrality’, retaining the masculine rule despite appearing to be balanced. the rule sets up an unhelpful equivalence between gender and number, running alongside and paralleling the number rule at section 6(c) (see above). as petersson puts it: [11: yet this does not mean that drafters have not been, and are not, influenced by such rules. as interview participants stated above, the masculine rule itself is taken to have driven the way that drafters approached legislative expression of gender from the mid-nineteenth century onwards. furthermore, margaret wilson recalls from her experience in the new zealand context that it was ‘difficult to get policy makers and drafters to understand that the male pronoun did not include women’ (wilson, 2011, p. 205).] in adopting the same structure, the two-way rule aspires to the neutrality of the number rule. however, the number rule is neutral because number is not socially significant. therefore any comparison between the number rule and the two-way rule is false because gender is socially significant … (petersson, 1999, p. 41) not only that, but the structure of the two-way rule preserves the integrity of the masculine rule by playing it first and having the feminine rule in a subsequent section (petersson, 1999, p. 42). finally, and perhaps most importantly, the two-way rule seems to have little effect in ‘real life’ on how people perceive gender equivalence. in interviews, drafters referred to the rule’s self-recursivity through equivalence whereby one gender was to be treated ‘as’ the other. this was felt not to recognise wider social dilemmas about very real gender inequalities. helen xanthaki, professor of law and legislative drafting at ucl, explained the reasons for this in an interview in 2019. she described a performative experiment she uses in teaching, in which she encourages students to stand up in line with the proposition that “she includes he”: i simply say to everybody okay, so in this class the following rule applies. “she includes he.” ladies, would you stand up? i still have not had a single male standing up on that basis. nobody, no man stands up if i say “she includes he”. (interview with helen xanthaki, 2019) if feminists have been looking for a type of interpretation rule that effectively re-includes women, the two-way rule has not reached this objective. in this way, far from merely writing statutes to government directions about the substance of legislation, therefore, legislative drafters have to resolve intense on-going dilemmas about how to adjust legislative expression to current and future sex/gender norms. “waving a wand” these deliberations are relevant not only for gender-neutral drafting techniques more broadly, which are addressed in the following section, but also because they intersect with debates about the structure and use of interpretation legislation. given the problems outlined with the two-way rule, it is clear that interpretation legislation is legally significant and has practical and symbolic importance within debates about legislation, attracting critique when not sufficiently inclusive or precise and also sometimes appearing to offer solutions to new social expressions of sex/gender. in an interview, for example, this drafter suggested a mechanism whereby interpretation legislation could be amended to provide that reference to one gender includes reference to any gender or people not of that gender: one way of recognising another gender or no gender would be to amend the interpretation act. you could have this as part of any general recognition of change or decision to do away with recording of genders, or whatever else there might be. the interpretation act at the moment refers to the masculine and the feminine and vice versa, for things post 1979. and it would be possible to say something like: “any reference to a person of one gender includes a reference to a person of any gender or a person who is not of any gender”. (interview with legislative drafter, 2019) i return below to the question of using interpretation legislation in relation to the decertification of gender. in the meantime, the drafter’s suggestion appears to offer an elegant solution to the structural inequalities found in the ‘vice versa’ or ‘two-way’ rule currently in force in the uk. it is worth noting that the solution is similar (but not identical) to what petersson has identified as the ‘all-gender rule’, which was adopted in the australian commonwealth in 1984: in any act, unless the contrary appears – (a) words importing a gender include every other gender.[footnoteref:12] [12: acts interpretation amendment act 1984 (cth) no 27 s 11; see petersson (1999, p. 43).] similarly, the gender interpretation rule in the new zealand interpretation bill 2017 states: 16. references to specific gender or kind of person include others (1) words denoting a gender include every other gender. the difference between what my legislative drafting informant suggested and the examples from australia and new zealand is the addition of the words “or who is not of that gender”, thereby including not just non-binary individuals, but also individuals who do not identify as any gender. an analogous approach can be found in the legislation (wales) act 2019, which aims to consolidate and eventually codify welsh law (welsh government, 2018, p.11), and which contains a broad provision explicitly allowing for the non-binary, even plural, gender interpretation of legislation: section 8: words denoting a gender are not limited to that gender in an assembly act or a welsh subordinate instrument, words denoting persons of a particular gender are not to be read as limited to persons of that gender. this provision expressly goes beyond the two-way interpretation rule in the uk’s interpretation act 1978. as the explanatory notes to the 2019 act put it: this section is equivalent to section 6(a) and (b) of the 1978 act, but it does not refer expressly to the male and female genders and therefore has a wider scope. (emphasis added) the explanatory notes point out that the rule is limited by context in a similar way as other interpretation legislation; that is, if ‘express provision is made to the contrary or the context requires otherwise’ then it will not apply.[footnoteref:13] this means that if a policy area requires specific application to one gender, then the rule will not override interpretation of legislation along those lines. [13: section 71, explanatory notes to the legislation (wales) act 2019.] in explicitly going far beyond the current interpretation rule in the 1978 act, the welsh provision raises intriguing questions about why such innovation has been possible in a devolved assembly and not at westminster. christopher williams proposes that this may be in part due to the welsh assembly legislating in two languages (williams, 2008, p. 152). welsh legislative drafters face particular challenges when drafting gender-related provisions across english and welsh with their very different approaches to gender (see further below). such dilemmas, with their associated potential for innovation, are a feature of any jurisdiction encompassing more than one language system and often accompany attempts (however effective they might be, or not) to devolve power or recognise plural legal systems within postcolonial legal contexts, often with associated language implications. for example, as king and fawcett point out, the te reo māori word ia is a gender neutral pronoun and can mean ‘he’, ‘she’, ‘him’, ‘it’ or ‘they’ (king and fawcett, 2018, p. 113). ia is used through the te ture mō te reo māori 2016/the māori language act 2016 in new zealand. in this way, dilemmas of addressing the masculine rule within interpretation legislation have distinct valences depending on colonial and linguistic context. given the spread of interpretation acts with their associated masculine rules (and variations thereof) throughout jurisdictions colonised by the british (petersson, 1999), and given changing developments in the legal recognition of diverse political and cultural constituencies, diverse legal solutions are likely to be forged as the continued use of interpretation legislation meets distinct gender ontologies with their associated terms and expressions. a final point to consider when we think about the sort of ‘meta’ solutions to legal problems that interpretation acts seem to offer is the matter of retrospectively altering or removing gender terms across the legislative field as a whole. as this legislative drafter put it, because this would be ‘a lot more work’, people might accept statutes as they have been historically gendered on the basis that future legislation would look very different: … in terms of a societal solution of saying “we don't like the fact that there is gender in the existing statute book”, that’s obviously a lot more work if you wanted to solve that rather than simply making a change in future acts. maybe people could live with it on the basis that it's part of the history or something and that the future doesn't look the same. it already doesn't look the same because of our move away from gender-specific drafting. (interview with legislative drafter, 2019) this is based on an assumption that as drafting techniques, government policies, and social norms change, anachronistic sex/gender expressions will eventually fall away. as such, the idea of using legislative drafting techniques to incrementally alter the statute book over time displays faith in the ‘drafter’s toolbox’ and ultimately in the potential for drafting to respond to its social context. margaret wilson juxtaposes the incrementalism of using a ‘toolbox’ with the immediate wholesale transformation of ‘waving a wand’ in her discussion of new zealand’s approach to legislative reform: you can't go through easily your whole legislative programme, particularly when you pass so many laws and make them gender neutral. the idea was, each time they came up for renewal or you had new and then you should actually have this as the norm in the toolbox of the drafter. if it is in the drafter’s toolbox, and it is actually seen as part of what they do, then you are part way there or mainly there, unless there is then another political reaction and their toolbox has changed politically or there is a movement within the legal drafting community … at the end of the day, it would have been lovely to have waved a wand. (interview 2019; emphasis added) “waving a wand” therefore references a tension between approaching statutes individually, bringing to bear new gender-related drafting techniques as they arise, and approaching the reform of legislative expression in a more universal and holistic fashion. however, both the toolbox and the wand metaphors evoke the idea of a body of legislation – termed ‘the statute book’ by drafters and lawyers which can be conceptualised in totality, as a ‘whole’. the new zealand chief parliamentary counsel is empowered by new zealand’s legislation act 2012 to make certain editorial changes to the text of legislation when re-printing it, including changing gender-specific language to gender-neutral language.[footnoteref:14] is this using a toolbox or waving a wand? in all drafting contexts, however it is conceptualised, the role of the drafter as the technician, or wand-bearer, is central to continued efforts towards intervening into the ‘magic’ of gendered legal terms. yet the conceptual pull of ‘statute book’ is significant: drafters tend to feel that measures should not be taken that create undue distortions or inconsistencies across the body of legislation as a whole (e.g. grabham, 2016). such considerations inevitably bear on any attempts to propose new forms of gender expression in statutes. with this in mind, the next section turns to the multiple techniques and concepts relating to gender-neutral drafting that are used, debated, and contested within uk drafting practice at present. [14: see section 25(1)(a) legislation act 2012: the chief parliamentary counsel may make the following changes in a reprint: (a) language that indicates or could be taken to indicate a particular gender may be changed to gender-neutral language so that it is consistent with current drafting practice, as long as it is also consistent with the purpose of the legislation being reprinted: examples the word “he” may be changed to “he or she”, or replaced with the relevant noun. the word “chairman” may be changed to “chairperson”. the words “her majesty the queen” may be changed to “the sovereign”. ] nothing but the words? …there are many ways for the drafter to achieve gender-neutrality when drafting. although the policy maker may give the direction for gender-neutral text, it is the drafter who has the responsibility of making it happen. (wilson, 2011, p. 207) in their survey of gender-neutral drafting in new zealand and internationally, ruby king and jasper fawcett state that ‘there seems to be an attitude among law-makers in the united kingdom of prioritizing traditional grammar over gender-neutral language’ (king and fawcett, 2018, p. 123). whilst the uk is not considered to be at the forefront of innovation in this area, the situation may be more complex than king and fawcett’s observation suggests. in a house of lords debate on the issue in 2013, lord kennedy of southwark wryly acknowledged that the uk was not at the forefront of innovation: ‘you could say that we have not been quick off the starting blocks here’.[footnoteref:15] yet uk drafters are aware of shifts in social norms and actively engaged in discussions about when and how to respond. gender-neutral drafting has been uk government policy since 2007 when it was announced by the then leader of the house of commons jack straw. straw stated that using male pronouns to refer to men and women was believed to ‘reinforce historic gender stereotypes’ and that it presented an ‘obstacle to clearer understanding for those unfamiliar with the convention’.[footnoteref:16] without explaining what gender neutral drafting entailed exactly, straw then stated that government bills would ‘take a form which achieves gender neutral drafting so far as it is practicable, at no more than a reasonable cost to brevity or intelligibility’ and that legislative drafters would need to ‘adopt a flexible approach to this change’.[footnoteref:17] he pointed out that the policy already applied in relation to tax law rewrite bills. [15: hl deb 12 dec 2013, col 1011.] [16: hc deb 8 march 2007, col 146 ws.] [17: ibid.] interviews with uk legislative drafters and experts indicate a ‘very high premium placed on freedom’, which allows drafters to solve problems independently whilst also deliberating their practice with colleagues on an on-going basis.[footnoteref:18] drafting is thus understood as something akin to both skill and art, resulting in work that is based on universal principles, yet specific to the drafter and to the instructions they get from the relevant government department (bowman, 2015). as this legislative drafting expert put it: [18: interview with legislative drafter, 2019.] i actually don’t think that two people could come up with the same draft. i don’t think it’s possible. i think there is so much subjectivity in drafting and again, that’s a good thing. (interview, 2019) nevertheless, innovations inevitably bring with them some kind of conversation about what is, and should be, ‘standard’. when i asked about how the office of the parliamentary counsel (opc) responded internally to the 2007 house of commons statement, drafters responded that it was not ‘uniformly liked or disliked’ but that there were debates in the opc about the extent to which gender-neutral drafting techniques would affect clarity: there was a mixture of views. some people thought that it would make our drafting less easy to understand and less clear. other people supported it and didn’t think it would particularly damage the clarity of the drafting. (interview, 2019) after the 2007 statement, attention turned to developing techniques to achieve gender neutrality. another common theme in interviews with drafters and legislative drafting experts is that efforts to draft in gender-neutral ways are often understood as resulting in improvements to drafting overall due to the dexterity and intense attention to the drafting process that this new approach requires: … one of the things that i found surprising was how often trying to rephrase it to avoid the issue, we ended up with a much better draft in any event than we could have got to in the first place. it sort of prompted us to rethink the way we were drafting more generally. (interview with legislative drafter, 2019; see also wilson, 2011, pp. 206–207) in any case, the emerging techniques have made their way into the opc’s drafting guidance, the most recent version of which is dated july 2018. the guidance states that it is opc practice to draft in a gender-neutral style ‘so far as it is practicable to do so’, following the wording of the 2007 ministerial statement. gender neutrality is thus a provisional goal. importantly, the opc notes that gender-neutral drafting applies both to drafting freestanding text in a new bill and also to drafting text that will amend an older act that is not gender neutral (opc, 2018, p.7). and once again, gender neutrality is not defined outside efforts towards its technical achievement, which is expressed in the guidance in terms of avoidance rather than positive suggestion: what does gender-neutral drafting require? 2.1.3 in practice, gender-neutral drafting means two things— · avoiding gender-specific pronouns (such as “he”) for a person who is not necessarily of that gender; · avoiding nouns that might appear to assume that a person of a particular gender will do a particular job or perform a particular role (eg “chairman”). (opc, 2018, p.7) the guidance then sets out three categories of techniques for avoiding gender-specific pronouns: (1) repeat the noun; (2) change the pronoun; (3) rephrase to avoid the need for a pronoun or noun (opc, 2018, p.7). similar techniques are used in jurisdictions across the commonwealth to varying degrees, and difficulties and controversies attach to each. in the remainder of this section, i address the first two categories, leaving an assessment of the final category (rephrasing to avoid the need for a pronoun) for future consideration. the first technique for achieving gender neutrality, therefore, is repeating the noun. the opc gives the following example: example ...earnings, in relation to a person, means sums payable to the person in connection with the person’s employment... (opc, 2018, p.8) this technique is widely used and advocated (see, e.g. salembier, 2015; xanthaki, 2013), yet it has a couple of acknowledged drawbacks. thornton’s legislative drafting succinctly states that it ‘creates verbosity’ (xanthaki, 2013, p. 81). the opc goes into more detail, explaining that ‘(c)onstant repetition of a noun or phrase in a way which would not occur in speech can jar and might detract from readability’ (opc, 2018, p.8). as such, the opc proposes slight variations, including using a defined term – for example “the offender” – or replacing the noun with a letter. using a letter is stated not to reflect english usage and the opc also notes that it creates a ‘mental hoop’ for the reader to go through, which decreases readability and means that the technique should only be used ‘judiciously’ (opc, 2018, p.8). for this feminist legal academic, the problem with using a letter instead of a pronoun is that it might create false equivalences or otherwise decontextualize the social harm or phenomenon that the legislation targets, creating a bar to interpretation: it tries to turn it into a maths problem. it is like the old maths problem with humans thing. it completely decontextualises the whole issue. so because a and b are equivalent, a and b just happened, it removes the whole context. it is not an aid to interpretation, it's a bar to interpretation, because if some judge comes along and thinks “what is all this about? i don't get it” then they can continue to be ignorant of it, because there is nothing that tells them what the actual social problem is that this thing is trying to address. (interview with feminist legal academic, 2019) whilst the technique was previously used quite widely in gender-neutral drafting, possibly being seen as a solution of sorts, it has now waned as drafters have re-considered its effectiveness: the more old-fashioned approach was sometimes to use “the first mentioned person”, “the second mentioned person” and your head starts to spin, especially if they’re mentioned quite a few times. in that case, we might still use letters. but there was a time when i think people were using letters, for example “p's” rather than “his”, to make drafts gender-neutral … i think that we would now say “we tried that and it didn't work”. we are not sure that is the best way of doing it. (interview with legislative drafters, 2019) as such, the situation now seems to be that letters may be used instead of pronouns in some situations to avoid repetition, but otherwise drafters do not consider it to be ‘the best way of’ achieving gender neutral drafting. the second technique of gender-neutral drafting – changing the pronoun – brings with it much more potential controversy than repeating the noun. there are two main debates here: the familiar conversation about “he or she”; and an intense ongoing controversy about the use of the singular “they”. beyond stating that ‘frequent use of “he or she” … can be awkward’, the opc guidance remains silent on the genesis of the “he or she” construction and its current reception within drafting circles. as we have seen, discussions about using “he or she” reference both its continued necessity and the risk of creating obsolescence. king and fawcett support these views, noting a shift away even from the ‘dual-gendered language’ that was seen as an improvement on the widespread use of ‘he’ (king and fawcett, 2018, p. 111). they argue that despite being more inclusive than the masculine rule, “he or she” wording currently still in use in new zealand, for example, does not recognise people outside the binary, and is perceived to ‘pigeonhole gender into two categories’ (king and fawcett, 2018, p. 111). within international conversations about legislative drafting, therefore, it seems that “he or she” is losing currency. this assessment of the direction of “he or she” is shared by legislative drafters, who consider its use not to be at the forefront of current practice: in the guidance, we still do mention that one of the techniques you can use is “he or she”. that's the one that isn't necessarily as gender-inclusive. we’ve examined it quite recently. there was a lively discussion … and different views were expressed on it. we reached the conclusion that we hadn't yet got to the point generally in society where “he or she” is regarded as an unusual way of expressing things. (interview with legislative drafters, 2019) drafters’ preoccupation with drafting to current social norms prevents them from adopting techniques that might be viewed as overly challenging of binary views of sex and gender. however, drafters appear to believe that as social norms and experiences change, it may be necessary in the future to draft for non-binary legal subjects, or for other genders, and hence do not perceive “he or she” as being useful in the long-term: there would have been a time when i might have thought, if i’m just talking about natural people, “he or she” or she is quite handy and i don't have to create contortions around restructuring my words, especially if it’s “his or her” something or other. but now i think, well, hold on a second, i can see that there must be a time when there is a possibility, to put it no higher than that, that there will be some other gender or non-gender, whether it's within the uk or abroad. and therefore, from my perspective, i think … there will have to be a technical solution if that happens. (interview with legislative drafters, 2019) these views extend to technical concern that using “he or she” might at some future point actively create anachronism or obsolescence within legislation: … from a personal position, i wouldn't use “he or she” just because i think i am building in obsolescence into the statute book. (interview with legislative drafters, 2019) another option for ‘changing the pronoun’, of course, is using the singular “they”. this technique has already been adopted in canada, australia, south africa, hong kong and the province of ontario (king and fawcett, 2018; revell et al., 1994; salembier, 2015). canadian federal legislative drafting guidance, for example, positions the use of the singular “they” as the first of a number of techniques for avoiding gender-specific nouns: 1. use the singular “they” and its other grammatical forms (“them”, “themselves” and “their”) to refer to indefinite pronouns and singular nouns. (government of canada department of justice, 2015) the opc’s drafting guidelines on this technique recognise that “they” is used in common parlance to refer to a person of either sex in the singular, but also acknowledge that this usage is contested: 2.1.16 they (singular). in common parlance, “they” is often used in relation to a singular antecedent which could refer to a person of either sex. 2.1.17 whether this popular usage is correct or not is perhaps a matter of dispute. oed (2nd ed, 1989) records the usage without comment; soed (5th ed, 2002) notes “considered erron. by some”. it is certainly well-precedented in respectable literature over several centuries. in the debate on gender-neutral drafting in the house of lords in 2013 a number of peers expressed concern about the use of “they” as a singular pronoun. 2.1.18 it may be that “they” as a singular pronoun seems more natural in some contexts (for example, where the antecedent is “any person” or “a person”) than in others. (opc 2018, 8-9, references omitted) in fact, the singular “they” has now been debated twice in parliament, in 2013 and in 2018, evidencing gradually decreasing hostility towards the construction. in december 2013, lord scott of foscote submitted a question for short debate in the house of lords asking the government ‘what guidance they issue to parliamentary counsel with regard to the use of gender-neutral language in the drafting of legislation’.[footnoteref:19] having introduced the context of the 2007 ministerial statement and section 6 of the interpretation act 1978, lord scott then largely turned his attention to the use of the singular “they” in legislative drafting practice, outlining a number of examples from primary and secondary legislation and explanatory memoranda, and describing them as ‘grammatically inappropriate plural pronouns coupled with references to a single person’.[footnoteref:20] arguing that primary and secondary legislation should serve as models for the ‘correct use of the english language’, he then asserted that ‘(t)o prostitute the english language in pursuit of some goal of gender equality is, i suggest, unacceptable’.[footnoteref:21] he further argued that using the singular “they” was unnecessary in light of section 6 interpretation act 1978. [19: hl deb 12 dec 2013, col 1005-7.] [20: hl deb 12 dec 2013, col 1004.] [21: hl deb 12 dec 2013, col 1007.] lord scott’s speech was followed by a short intervention by lord quirk, notable in light of his long academic career as an internationally renowned linguist and the originator and for many years director of the first international survey of english usage at university college london. lord quirk’s grammar of contemporary english (1972, with geoffrey leech and jan svartvik) and comprehensive grammar of the english language (1985, with leech and svartvik) were standard setting reference grammars in modern english for many years and he trained or helped train many specialists now working in the fields of linguistics and corpus linguistics. lord quirk did not directly criticise the use of the singular “they” in legislation. instead, he framed this technique as originating in an essential grammatical lack in english for which either of two fudges were often used: the singular “they”, on the one hand, and the universal “he”, on the other: … in grammar, like many other languages, english lacks an epicene third person pronoun that can have anaphoric reference to an ungendered antecedent – that is putting it in plain language. for literally hundreds of years, we have vacillated between solutions that partly fit the bill, especially “he”, which is third person and singular but not, of course, epicene, and “they”, which is third person and epicene but not, of course, singular.[footnoteref:22] [22: hl deb 12 dec 2013, col 1008.] lord quirk’s intervention put the use of the singular “they” on equivalent footing to the use of the universal “he”, positioning the latter as just as much of a problem, grammatically, as the former. he managed to acknowledge his colleagues’ fear of “they” ‘creeping into legislation’ whilst also performing the equivalent of a polite linguist’s shrug of the shoulders: what can you do if you lack the grammatical tools? and his reference to the practice of using the singular “they” as having existed over ‘hundreds of years’ positioned drafters’ use of the technique within a much longer time frame than possibly understood by lord scott and others. lord quirk finished his remarks by directly critiquing section 6 of the interpretation act on the basis that deeming the masculine to include the feminine had been shown by ‘convincing psycholinguistic experiments’ to create images of men as the legal subjects.[footnoteref:23] during the remainder of the debate, lord kennedy of southwark referred to the evolution of the english language which, he asserted, ‘is not a stand-alone, stand-still language,’ but which is ‘developing and shaping us into who we are today’.[footnoteref:24] finally, lord gardiner of kimble, in formally responding to the question, acknowledged the risks of using the singular “they” but stated that it ‘reflects common usage … and is well precedented in literature over the centuries’.[footnoteref:25] [23: hl deb 12 dec 2013, col 1010.] [24: hl deb 12 dec 2013, col 1011.] [25: hl deb 12 dec 2013, col 1011.] the 2013 debate did enough to raise concerns about the use of gender-neutral drafting techniques such as the singular “they” but never had the scope to settle any of these concerns. essentially, the debate seems to have spooked drafters in the opc, leading to the insertion of wording into the 2014 version of the opc drafting guidance recommending its avoidance.[footnoteref:26] yet drafters seem to be continuously assessing the use of this construction, to the extent that by the time of a later debate in 2018, drafters had already re-assessed the use of the singular “they”: [26: the guidance put it this way: 2.3.15 nevertheless, it was clear from the debate on gender-neutral drafting in the 2013 house of lords debate that to use “they” in legislation to refer to a singular subject is controversial. on that basis it is best avoided. (opc, 2014).] … there was the political context. we were … gently encouraging people not to the singular “they” because of debates in the house of lords. then we reviewed it again more recently and thought that things had moved on. in the more recent debate, which came shortly after we changed our guidance, but wasn't linked to our guidance, i don't think anybody objected to the use of the singular “they” on grammatical grounds. (interview with legislative drafters, 2019) the 2018 debate centred much more explicitly from the outset on the use of the singular “they” but evidenced a qualitatively different attitude to the issue amongst peers. notably, this debate took place shortly before the launch of a consultation on the gender recognition act 2004 and just after the national lgbt survey, which received over 108,000 responses, of which 6.9% were from non-binary people, 3.5% were from trans women, 2.9% were from trans men, and 2% were from intersex people (see further government equalities office, 2019). lord lucas asked the government whether they would ‘adopt the use of “they” as the singular pronoun in all future legislation in preference to gendered pronouns’.[footnoteref:27] he described the opc drafting guidance as a “halfway house” and asked whether the ‘whole aspect of gender in legislation and public practice’ should not be reviewed given the upcoming review of the gender recognition act.[footnoteref:28] baroness lister of burtersett shortly after followed up on the point, asking why using the singular “they” would be a ‘step too far’.[footnoteref:29] lord young of cookham replied that it had been used but that to require it in every case would deprive legislative drafters of flexibility. baroness barker then followed up with a question directly relating to trans people’s use of pronouns: [27: hl deb 28 june 2018 col 7.] [28: hl deb 28 june 2018 col 8.] [29: hl deb 28 june 2018 col 8.] my lord, trans activists who i know very well do not wish to stop anybody using gender pronouns; they simply wish to add more ways in which people can use terms that describe them more accurately. private sector companies are way ahead and are latching onto this.[footnoteref:30] [30: hl deb 28 june 2018 col 8.] lord young replied that he hoped that the consultation on the gender recognition act and the lgbt survey would reassure her that the government took the issue seriously, even though neither of these addressed the matter of legislative drafting, as such.[footnoteref:31] following the 2018 debate, the opc guidance which formerly recommended avoiding the singular “they” was changed to merely assert that it may be more ‘more natural in some contexts rather than in others’ (opc, 2018, p.9). [31: hl deb 28 june 2018 col 9. with thanks to flora renz for pointing out that the consultation and the survey did not address drafting.] amongst legislative drafters, drafting experts, and legal scholars, diverse views on the singular “they” remain. the canadian academic and drafter paul salembier, for example, asserts that the use of the singular “they” is grammatically incorrect, that it impedes comprehension by introducing subject-verb mismatches, and that it introduces ‘the potential for syntactic ambiguity’ resulting in a legislative text with two or more meanings, only one of which can be correct (salembier, 2015, p. 178). on the other hand, the australian drafter james dalmau argues strongly in favour of an open approach to issues of ‘contested usage’, such as the use of the singular “they”. he points out that the expertise of legislative counsel derives in large part from a large repertoire of techniques that drafters develop and practice. as he puts it, ‘denying recourse to a contested usage reduces this repertoire’ (dalmau, 2019, p. 28). king and fawcett note that language is organic, and that considering of shifting language norms should inform the reception of techniques such as the singular “they” (king and fawcett, 2018, p. 114). indeed, the singular “they” is endorsed by thornton’s legislative drafting on the basis that ‘grammar is simply a tool and not a chain’: although this technique has not been fully accepted, it is gaining ground rapidly … what seems to annoy most opponents to the technique is the grammatical error in its expressions … but is grammatical correctness that important? since grammar is simply a tool, and not a chain, in the hands of drafters, gender neutrality cannot continue to remain anchored down by the inherent limitations of language. (xanthaki, 2013, p. 82) the use of the singular “they”, therefore, evidences an approach to legislative drafting which is not “anchored down” by the limitations of language. in a similar vein, feminist legal scholar rosemary hunter notes the flexibility of “they” in responding to changing social context and the specific circumstances of each legal situation: … “they” is a travelling concept. it can run the characteristics that are relevant at the particular time. (interview, 2019) and as she put it, “they” is widely understood in public as referring to each gender. a similar breadth of opinion seems to be reflected within the opc, where views range from those who find the construction to be ungrammatical to those who consider there to be a movement in favour of its more widespread adoption: within the office, views are divided. i find that the use of the singular “they” grates at the moment. i would probably use it in a letter, but not in a draft. … i suppose that our discussion within the office of “they” reflects what is going on in society more widely. (i)f all the newspapers and most people start using the singular “they” in writing, i think that it will become second nature even if it once felt wrong grammatically. (interview with legislative drafters, 2019) a further potential option for ‘changing the pronoun’ is through using terms such as “ze” to replace “her/his” and “he/she”. such terms have become more widespread in educational and political organising contexts, for example, to avoid mis-gendering people and to acknowledge the need for gender-neutral pronouns (dembroff and wodak, 2018). indeed, successive generations of drafters seem to display less surprise at gender neutral drafting and more awareness of new evolving pronouns, as this drafter suggested: when we get a new batch of recruits we sit down and talk about the drafting guidance and i mention the chapter on gender-neutrality, we get some quite blank faces, because it's just not an issue … the discussion normally then turns to non-binary issues and have we considered using “ze” or other things like that. (interview with legislative drafters, 2019) however, when asked whether the opc would consider using terms such as “ze”, the reply was in line with the opc’s approach of reflecting standard english usage but trying to avoid innovating beyond current social norms: i think “ze” isn’t standard english usage, so that would be one of the reasons. that’s why we wouldn't use it at the moment. gender-neutral drafting is an area that we keep revisiting and talking and thinking about. (interview with legislative drafters, 2019) yet terms such as “ze” might come into use in legislative drafting if new proposals for ‘gender inclusive’ and ‘gender-silent’ drafting take hold. helen xanthaki has written about the conceptual potential of ‘gender inclusive’ drafting, encouraging an approach in which ‘the subject does not need to identify as one of the two genders: they can see themselves as any or none or anything in between’ (xanthaki, 2019). xanthaki strongly endorses the use of the singular “they” within the gender inclusive approach, recognizing that ‘everyone, not just men and women, is equal before the eyes of the law’ (xanthaki, 2019), and thereby clearing a path for recognising a wider range of genders. she views the singular “they” as grammatically controversial, yet she argues that its adoption within drafting practice is ideal in eliminating gender as a relevant factor in legislation. as xanthaki put it during an interview: my personal view is, no, we need to be brave. this is a problem in our society and it's a problem generally, for me. it's unacceptable that we exclude people because they are not of a specific gender at that specific moment in time. for me, it needs to be dealt across the board. if this is considered to be too much, okay, experimental legislation has happened before. it's not a novel thing. (interview, 2019) in a similar vein, donald revell and jessica vapnek have recently advocated for the ‘gender silent’ approach, which is explicitly oriented at reflecting and supporting the rights of transgender and non-binary individuals (revell and vapnek, 2020). based on an extensive summary, internationally, of drafting in english speaking countries, revell and vapnek argue for an increased recognition by drafters that ‘gender and sexual identities exist along a continuum’ (revell and vapnek, 2020, p. 105). they note that many jurisdictions are moving towards such an approach through the use of techniques already addressed above, for example, repeating the noun or using the singular “they”. as they put it, such an approach is ‘not a fad: it reflects the fact that society is changing’ (revell and vapnek, 2020, p. 145). what emerges from this debate is a set of evolving drafting techniques that drafters use, re-assess, and drop or alter, depending on whether they work well and on wider legal, and particularly parliamentary, debate. drafters described coming up with an initial set of practices after the 2007 government statement, some of which became over-used when drafters started adopting them in other contexts. the overall impression is that drafting practice is alive with controversies of ‘contested usage’ (dalmau 2019) and fosters ‘technical pluralism’ (grabham, 2016) through which multiple techniques are adopted, developed, and phased out (if necessary) over a field of legislation. as indicated, each of these techniques is associated with a slightly different political ontology of sex/gender. that these very different orders of thinking about sex/gender attach to distinct drafting techniques provides fascinating material for the project’s ongoing work on statutory law. balls, bones, and grenades in preparation for this debate, i asked myself: what is the english language? (lord kennedy of southwark, hl deb 12 dec 2013, col 1010) .. the question is are the drafters communicating or are they simply passing on others’ attempts to communicate? (stefanou, 2015, p. 4) what does the drafting feel like? the drafting feels like juggling a number of different balls in the air, i suppose if you want an overused metaphor [laughs]. and they are not all balls. some of them are bones. some of them are grenades. (feminist legal scholar, 2019) this article has charted longstanding and more recent debates in legislative drafting about the expression of sex/gender in order to provide a basis for the project’s future work on an experimental statute decertifying gender in law. with that in mind, the future of legal gender project has two main sets of questions to consider in relation to legislative drafting. the first is how to achieve decertification in an experimental statute – how to draft the statute, what principles and sources to use, how to make it as potentially effective as it would need to be. this is as much an aspirational question as it is a technical dilemma and our ongoing work engages with legislative drafters and feminist activists, policy-makers and scholars to further explore it. in terms of substance, the experimental statute will target specific areas where the gender assigned at birth is used for identification or other legal reasons throughout the life course and where raise particular questions of opportunity, note of caution in the context of feminist politics (cooper and emerton, this issue; peel and newman, this issue). our ongoing work in this area focuses intensely on the gendered character of dominant social systems, how law upholds these systems, and the potential benefits and disadvantages of unpicking legal gender status through decertification. this special issue has canvassed certain of these substantive concerns, for example relating to same sex provision (e.g. renz, this issue) and future publications, including in relation to the experimental statute itself, will further explore these issues. in terms of drafting, however, we have a number of potential concerns, routes, dilemmas, and solutions. for example, we might consider using interpretation statutes to support the decertification of gender: changing the text of the interpretation statute so as to support a reading of all legislation that dis-attaches legal gender from the subject or which references decertification itself. this has already been proposed and analysed as a more ‘meta’ technique, which addresses not only the reception, but also the drafting, of legislative text. however, this kind of technique would do very little to help the project address the substance of sex/gender inequalities more broadly. given the genealogy of interpretation statutes in erasing female legal subjects, using this route within a decertification project could bring with it unhelpful associations, and within contemporary practice in the westminster system (through which policy-making and drafting are divided and distinct) it would not help ongoing feminist activist or policy concerns if legislation ‘invisibilised’ sex/gender dynamics and politics. the temporality of interpretation statutes is also a potential issue, as they tend to look forwards and not backwards, leaving a legacy body of legislation subject to a distinctly gendered regime oriented at people with certified sex/gender. yet clearly interpretation statutes are also seen as a locus for legal change and innovation, with examples from the welsh assembly and australia already referring to a wider range of genders than male or female, as we have seen, and it may well be that attention to interpretation legislation could become one aspect of a broader legislative approach. the evolution of new techniques of gender-neutral drafting is positioned as a key means of bringing about change in drafting overall following the 2007 government statement and recent moves towards ‘gender-inclusive’ and ‘gender silent’ drafting. we have already seen that drafters have a degree of independence, yet they work in teams and engage in dialogue about drafting problems and innovations (xanthaki, 2015), leading to incremental shifts in adoption, the uptake of new techniques, and even the use of linguistic research to help advance their practice (dalmau, 2019). essentially, then, if we imagined that our project would respond to the wider legal world as it currently is, then we would be interested in how drafters would engage with decertification over time. if sex were not formally recorded at birth, or not attached to a lifelong, gendering, system of state identification, would this require drafters to draft sex/gender differently, and if so, how? what would a move to decertify gender do to the techniques of gender-neutral drafting currently used by the opc, which focus on repeating the noun, changing the pronoun, and rephrasing to avoid the need for a pronoun or noun? it seems that decertifying gender would have most effect on the group of drafting techniques outlined above that focus on changing the pronoun, with possibly fewer effects on the other two groups of techniques. this is because gendered third person pronouns have been used across the statute book and it is still within drafters’ technical range to use such pronouns where they see fit. decertifying sex/gender would certainly challenge the continued use of gendered pronouns in the third person, including the familiar “he or she” construction. given that decertification would not claim to erase widespread inequalities of sex/gender, as davina cooper has pointed out (this issue), it might be possible that gendered third person pronouns may still be used in some circumstances when it is important to recognise the effect on an individual of a social system or phenomenon that is acknowledged to be gendered. this could apply even with the use of “they”, which is not necessarily always understood as ‘non-gendered’ but often as ‘gendered differently to male and female’.[footnoteref:32] there is in any case a move away from using the “he or she” construction when alternatives are present and using only “he” is falling well outside of contemporary drafting practice, especially following the 2007 government statement on gender neutral drafting. furthermore, gender-inclusive and gender silent approaches to drafting increasingly shift away from assuming in advance what sex/gender a legal subject wishes to claim. [32: many thanks to flora renz for making this point.] it may well be that too much attention to pronouns would be inappropriate for the kind of re-orientation of focus that decertification would perform. if decertifying gender is about not putting all the work of sex/gender onto individuals to carry through their lifetime, but instead to focus on sex/gender as a set of social systems and institutional orientations, then the focus on pronouns, with their inherent targeting of gendered individuals, may shift. for this reason, our statutory drafting practice may focus on techniques currently used by drafters to ‘rephrase to avoid the need for a pronoun or noun’ (opc 2018, 7). given that legislation still occasionally needs to target legal subjects as individuals, it is possible to imagine a situation in which decertification might encourage drafters increasingly to use the singular “they” as a non-gendered third person singular, and this would also align with xanthaki’s ‘gender inclusive’ approach, although from a different conceptual direction. another approach might be to question the continued use of the third person as the ‘voice’ for legislation. this appears more radical than rephrasing to avoid the need for a pronoun, but both techniques effectively engage in a shift in expression. as many commentators have pointed out (mossman, 1995; salembier, 2015; xanthaki, 2013), the issue that drafters face is that there is no gender-free third person singular pronoun in the english language – that is, if objections to the widespread use of the singular “they” are taken as read. however, the second person (“you”) is un-gendered. the second person is often associated with the imperative, which is used more readily in other languages (e.g. german) and not generally considered for use in statutory text.[footnoteref:33] as salembier puts it: ‘the imperative mood (put that cookie back in the jar) is commonly used for speaking but is not appropriate for legislation’ (salembier, 2015, p. 176). the office of the scottish parliamentary counsel (ospc) has also considered the use of the second person within the context of plain language drafting. the ospc points out that referring to ‘you’ would catch readers of legislative texts who are not the intended audience of the obligations or rights contained in the statute, for example judges or lawyers. however, it also acknowledges that ‘there may occasionally be circumstances in which it may be advantageous to draft in the second person’.[footnoteref:34] as the project continues investigating the rich intersections of sex/gender and legislative drafting, future work could focus on the potential for using the second person as part of a broader set of feminist techniques that sit comfortably with a more disruptive approach to drafting overall (see further below). as such, the second person might provide a technique for avoiding the binary dilemmas of gendered third person pronouns, helping to support the decertification of gender (along with its focus on social relations of gender rather than gender as an individual property of the legal subject), and also unsettling communicative conventions of drafting within broader processes of law-making (see further stefanou, 2015). [33: there is not space here to engage with speech-act theory in relation to critical legal studies but my future work on the project will explore this. see, for example, martel (2015).] [34: office of the scottish parliamentary counsel (2006, p.33).] the second set of questions in this final section builds on these latter concerns by asking how feminists can and should engage with legislative drafting. we might, for example, try to alter the current tools, contributing to on-going debates about sex/gender within current legislative drafting practice from the perspective of a situation in which people would not enter legal forms of address with formally sexed or gendered subjectivities. conversations about gender and drafting, the on-going controversy over the use of the singular “they”, for example, and historical debates over the use of interpretation statutes, all reference the performative power of legal statutes and their gendering effects. the unsteady histories of sex/gender in english law as well as current dilemmas of contested usage indicate that this area of legal practice is as full of controversy as any other. with that in mind, it would be inaccurate to frame any feminist approach to drafting as challenging a monolithic institution or practice. yet writing statutes from an explicitly feminist perspective also necessarily engages questions of positionality right from the outset. for feminists engaging with statute writing, using the tools, conventions and aesthetics of drafting does not necessarily mean aspiring for the same norms of independence and neutrality found in legislative counsel offices. however the need to follow something akin to the received conventions of statutory drafting is still felt to be necessary in order to make a convincing enough argument about what could be different, substantively or formally, in the law. as erika rackley put it: … my concern with not following the rules, the traditional rules of legislation, is that you would end up with something that looks so different to legislation that the people would no longer see it as legislation. the powerful argument of “you could do it this way” would be much harder to make. (interview, 2019) in addition to positionality, the political and legal orientation of feminist statute-writing can vary depending on whether the proposed statute is the result of academic initiative, engagement with ngos, or work undertaken for political parties. máiréad enright, who with many other feminist legal academics has co-organised and written feminist judgments as well as feminist legislation, spoke of the effect on decisions about form and substance being driven significantly by context, as she highlights here, when speaking about the different expectations involved in writing proposed legislation for the alliance for choice in the northern irish context, compared with writing proposed legislation on abortion reform for the irish labour party: their [the alliance for choice] political position was “draft something that is the gold standard, so that we can measure whatever we get in the future or we can educate ourselves and we can think ourselves in terms of the gold standard”. whereas with the labour party it was draft something that's not too frightening and that meets the constitutional requirements. (interview, 2019) enright refers here to ‘gold standard’ drafting, a request to draft the kind of feminist statute that would recognise the ‘best’ on offer to feminists on abortion across jurisdictions, made applicable to the northern irish context. the difference between ‘gold standard’ and ‘not too frightening’, then, relates to content and form and can draw on very diverse sources. yet, importantly, writing statutory text is felt to be a more immediate kind of prefigurative intervention than judgment writing or other forms of feminist legal praxis. with these points in mind, we might aim for a believable ‘gold standard’ with the aim of safely persuading as many policy makers as possible of the workability of our proposed experimental stature. or we might forge distinctly feminist tools, challenging aspects of drafting practice that are currently very well embedded. there are precedents for this kind of legal squatting/vandalism/re-orientation (depending on your politics): the feminist judgments project, the african feminist judgments project, and the northern/irish feminist judgments projects are some examples.[footnoteref:35] this might mean turning away from text towards performance or other art forms, strategically de-stabilising certain epistemologies and practices of drafting, such as the distinction between policy-making and drafting, or the tools of neutrality, distancing, and objectivity that often structure current ‘best practice’ in drafting communities (greenberg, 2011). [35: see enright et al. (2017); hunter et al. (2010); the african feminist judgments project at: https://www.lawandglobaljustice.com/the-african-feminist-judgments-project; the scottish feminist judgments project at: https://www.sfjp.law.ed.ac.uk/ and cowan et al. (2019). ] inevitably, the process of producing an experimental statute takes place outside of the usual westminster (or relevant other jurisdictional) processes whereby the substance of primary legislation is formed through policy considerations within government departments and then transmitted to drafters by means of ‘instructions’. in interviews, legislative drafters were careful to convey their observance of this norm, establishing the limits to their deliberative technical engagement with departments. as such, any feminist attempt to use the tools of drafting to write law ‘otherwise’ inevitably collapses what are considered to be important procedural distinctions between the policy phase and the drafting phase into each other (see further greenberg, 2011; page, 2009). nevertheless, there may be considerable power in occupying both roles at once, making more radical interventions into both substance and form than would otherwise be expected. precedents for this kind of approach include the northern/irish feminist judgments project and the scottish feminist judgments project, both of which aimed to trouble the usual form of judicial writing and decision-making by involving a wider group of artists, litigants, and social activists (cowan et al., 2020; enright et al., 2017). it will be for the next stage of our research to consider whether and how to take a similar approach. finally, those who have engaged in feminist judgments or statutory drafting have become increasingly aware of the limited role of each aspect of law-making within wider legal assemblages. speaking of the provisional power of legislative drafting in the context of judicial decision-making, one feminist academic described it as a ‘choreographed free for all’ in which judges had wide scope to use their tools in such a way as to read down legislative provisions if they wanted. as she put it: it's a very sort of choreographed free for all. i do think that there are hard boundaries, but they are pretty wide. i think that there are an awful lot of ways that judges can decide which particular tools they are going to deploy in a particular situation, whether it's to uphold something, to read it narrowly, to read it broadly, to make sense of it or to make nonsense of it, and then they have those options and they have the perfectly legitimate rational ways of making that seem inevitable. (interview, 2019) these remarks point to the interconnections and relationships existing between different arenas, types, and registers of law, reminding us of the importance of statutory interpretation alongside legislative drafting, and the purchase of wider debates about the limits of authorial power (e.g. kamuf, 1988; walker, 1990). concluding remarks: grasping the alchemy of legal gender the synthesis of words and legal meaning, text and expression, that we find with legislative drafting means that ‘drafting otherwise’ is not simply a matter of using current techniques to implement a new approach to legal gender, it is much more productive and political than might otherwise be assumed. this project has led me to become preoccupied with the question of whether a technology that has contributed many of the legal categories, idioms, exclusions, and ideologies that contribute powerfully to norms of sex/gender can be employed in decertifying gender. in line with new materialist perspectives on the ‘mattering of methods’, i find myself bewitched with the politics and materiality of text just as others ask about the ontological force of legal gender and the material and political effects of changing how sex and gender attach to law (coleman et al., 2019). over recent months, i have brought to research meetings the shiny things i have been finding in interviews with legislative drafters: debates over the singular “they”, discussions over gender in the interpretation act 1976, the fact that drafters know about gender-transformative expressions of “ze” and will readily discuss non-binary gender. these debates have raised second wave feminist insights about the power of legal language – its magical quality – as a matter of ongoing enquiry. magic is, in some ways ineffable, and the legal technical fabrication of sex/gender through text and innovation over the past few centuries has come to seem slightly more scientific, something more like alchemy. in such moments, the larger project of working out what would be the implications of dis-attaching sex/gender from legal personhood has appeared to be as just as much a question of legal expression, the oddly tenacious power of legal text, as about an iterative working-through of feminist prefigurative legal and political thinking, requiring, as it does, careful assessment of how this whole web of meaning, effect, politics, and inequality is connected. in other words, i have become entangled in this research somewhere between text and substance. my problem is that when the task is done, we may well have expressed ourselves, again, through legal text and certainly, to some extent, through legal form. i cannot dis-attach my own involvement in this project from the emerging realisation that whatever we wish to do, prefigurative, revolutionary, or transformative has to engage with an archetypal practice of law-making that has been a ‘black box’ until very recently. the mutual inter-relationship of sex/gender and legislative drafting has raised more questions than it has answered, and it seems like risky work, having identified the alchemy, to try and harness it. yet with such risks come new opportunities. i hope this article has conveyed some sense of our statutory dilemmas as we continue our research on decertifying gender. references bowman, g., 2015. is legislation literature? sir william dale annual memorial lecture. eur. j. law reform 17, 385–402. busby, k., 1989. the maleness of legal language. manit. law j. 18, 191–212. cameron, d., 1985. feminist and linguistic theory. macmillan, london. coleman, r., page, t., palmer, h., 2019. feminist new materialist practice: the mattering of methods. mai fem. vis. cult. https://maifeminism.com/feminist-new-materialisms-the-mattering-of-methods-editors-note/ cooper, d., 2018. acting as if other law reform questions were already on the table? future of legal gender blog 13 october. https://futureoflegalgender.kcl.ac.uk/2018/10/13/acting-as-if-other-law-reform-options-were-already-on-the-table/#more-520. cooper, d., 2020. towards an adventurous institutional politics: the prefigurative ‘as if’ and the reposing of what’s real. sociol. rev. 68, 893–916. https://doi.org/10.1177/0038026120915148 cooper, d., renz, f., 2016. if the state decertified gender, what might happen to its meaning and value? j. law soc. 43, 483–505. cowan, s., kennedy, c., munro, v. 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(ed.), 2013. thornton’s legislative drafting. bloomsbury __________________________________________________________________________________________ 46 __________________________________________________________________________________ 45 davina cooper, robyn emerton pulling the thread of decertification _____________________________________________________________________________________ feminists@law vol 10, no 2 (2020) _____________________________________________________________________________________ pulling the thread of decertification: what challenges are raised by the proposal to reform legal gender status? davina cooper and robyn emerton[footnoteref:1]* [1: * davina cooper: research professor in law, dickson poon school of law, kings college london, uk; email davina.cooper@kcl.ac.uk (corresponding author); robyn emerton: research associate, dickson poon school of law, kings college london, uk; email robyn.emerton@kcl.ac.uk. thanks are due to the peer reviewers for feminists@law for their comments, to the other members of flag for their input (flora renz, emily grabham, elizabeth peel and hannah newman), to didi herman for her feedback, and to the discussants on this paper, ruth fletcher and ambreena manji. this paper also benefited from comments and discussion following talks and lectures at ubc, carleton, osgoode, the lse, queen mary, the university of miami, and emory. the research for this article was funded by the esrc, award number es/p008968/1.] abstract in decertification, the state withdraws from registering, assigning, or guaranteeing a person’s sex and gender, giving one shape to the growing momentum towards their informalisation. this article explores decertification as a speculative reform, now emerging onto the political and legal agenda, in two primary ways. first, it asks what contribution, if any, might decertification make to a feminist politics intent on undoing gender-based hierarchies. second, as a methodological thread, what concerns, issues, and hopes does decertification bring with it? in addressing these questions, the article considers different versions of decertification alongside an alternative reform strategy of legally recognising multiple gender identities. it explores the feminist benefits of decertification; the concerns and criticisms expressed; and strategies for responding to feminist worries. here, the article turns to possible and already in-place governmental strategies to manage the informalisation of sex/ gender, alongside criticisms that can and have been made of these strategies. it then considers decertification’s relationship to other strategies that foreground purpose, specificity, connection, and context, within a politics intent on questioning and unsettling existing orderings. finally, the article considers the risks of androcentrism and gender-neutral law; and argues for the need to embed decertification within a wider multiplex progressive agenda. introduction the future of legal gender (flag) is a critical, feminist research project concerned with gender’s relationship to law, inequality, subjectivity, society, and imagined futures. flag approaches these relations through the prism of reform. its focus is one specific legal proposal: the decertification of sex/ gender.[footnoteref:2] we use the term decertification to describe a regulatory move in which the state[footnoteref:3] steps back from registering (or assigning) sex at birth and so, also, from subsequent procedures of sex/ gender recertification. decertification means people would no longer have a legal sex/ gender status. this puts sex/ gender on a par with other social characteristics such as ethnicity and sexuality, which are not legally formalised even though they remain sites of inequality and of statutory equality remedies. thus, it is important to recognise, from the start, that decertification does not mean the withdrawal of access to equality protections on sex/ gender grounds (however unsatisfactory these practically prove to be). [2: the use of sex/ gender terminology is heavily disputed. this article follows the approach adopted by flag in focusing on gender as a socially manifested process. this process includes ‘sex’ as a key gender term, including in legislation. legally and in public policy, the two terms of sex and gender are used unevenly – sometimes interchangeably, sometimes deliberately to distinguish and separate features assumed to be biological from those defined as social and cultural. we use sex/ gender to identify those instances where either the analysis or the claims we are discussing concern sex and gender. in some cases, this is because they are interconnected; in other cases, it is either because the analysis or claim made applies to both terms, or because views differ on which is the salient term. ] [3: for the purposes of this discussion, we use the term “state” to identify the assemblage of largely official apparatuses involved in public governing and ruling; see also manji (this issue). states are not unified agentic structures, and state agency is performed in different ways, including by apparatuses acting as if the state can speak. this aspect of the esrc project builds on earlier work by cooper (particularly 2019b; but see also 1994, 1995, 2016). discussion in this paper approaches state law as one expression of, and device for, organising and producing state agency. ] opening a project with a proposal may seem counterintuitive. typically, sociolegal projects arrive at law reform proposals towards the end of the study as different ways of responding to or resolving identified harms are assessed. flag reverses this methodology. it starts with a law reform proposal to draw out the hopes, anxieties, possibilities, fears, practices, and narratives that articulating such a proposal generates. proposing change brings ideas and feelings towards what is and what could be to the fore. these can be very uncomfortable (even hostile) feelings, as elizabeth peel and hannah newman also explore in this special issue. however, despite – and perhaps because of the criticism that it faces – decertification is worth exploring. it offers a framework through which to examine contemporary conceptions of gender; the challenges and conflicts surrounding gender’s regulation and reform; and the stakes and effects of gender’s reimagining. but decertification is also more than an analytical method, or kind of “tickling”, even as it “engage[s] in play and provocation around law and its limits” (enright et al., 2020: 18). in the socio-political context of england & wales (the case-study jurisdiction for this project),[footnoteref:4] decertification forms a plausible option – at least for discussion. this region has several features that make decertification reasonable. these include: the growth in gender-neutral legislation and legal drafting causing sex/ gender to become increasingly undifferentiated at the level of statutory legal form (also grabham, this issue); legal recognition of gender transitioning (through the gender recognition act 2004); and the social flourishing of gender diversity. at the same time, england & wales remains a jurisdiction in which gender endures as a source of inequality,[footnoteref:5] and as an abiding structuring feature of societal organisation. this has important implications for how we think about law reform. [4: for reasons of history and present-day devolution, the law in scotland is different. however, where there is convergence, we use “britain” to cover both jurisdictions. ] [5: we identify gender as an institutionalised, asymmetrical patterning, that remains anchored in the terms of male/ female and masculine/ feminine – these terms also have descriptive and referential salience for other gender identifications. ] our analysis of decertification, in this article, develops through the following five steps. 1. we start by considering an alternative option, which some have proposed, that would diversify the gendered identifications or categories that state law recognises; and we explain why this option is less critically appealing than decertification. 2. we then explain decertification and its benefits for a feminist politics oriented to transformative change. 3. we explore some feminist criticisms of decertification. and 4. we trace responses to these concerns, focusing on governing strategies that seek to pre-empt the harms and risks that critics identify as well as political responses that fold decertification, more explicitly, into projects for change. finally, 5. we critically consider the relationship between decertification and androcentric law. our analysis draws on qualitative data from anonymised semi-structured interviews with approximately eighty policymakers, union officials, and ngo workers and activists,[footnoteref:6] along with publicly available government reports and other documentary and text-based materials. we also draw on feminist scholarship. materialist, poststructuralist, institutionalist, performative, and sociolegal feminist writing provides intellectual resources for the discussion and analysis that follows. central to our discussion is a concern with power and harm, articulated together in the gendered dimensions of oppression – of “exploitation, marginalization, powerlessness, cultural imperialism, and violence” – that iris marion young (1990) powerfully examines (see, also, conaghan 1996; coy 2016; dustin and phillips 2008; gill and anitha 2009). [6: we selected interviewees based on key sectors of interest (government, trade unions, gender-based ngos, religious organisations, and social welfare sectors), using purposive sampling and snowballing.] it is worth stressing at the start that, while our article focuses on a specific legal measure, we do not assume that legal reform, and particularly legal reform to “informalise” sex/ gender status,[footnoteref:7] will radically undo gender-based inequalities or the reproduction of gendered categories more generally (see, especially, smart 1989; see also, e.g., bottomley and conaghan 1993; munro 2001; sandland 1995; fletcher, manji, this issue). state law and legal reform, in this context, are not that powerful. it should also be said that decertification has not been fully introduced formally in any jurisdiction (although “light” versions are emerging, as in tasmania, discussed below). we therefore cannot empirically assess its statutory effects. consequently, our focus is on the narratives and imagined consequences – optimistic and feared. we take these up to ask: does decertification contribute to accounts of how gender-based injustices might be undone (in ways that could include gender’s undoing as well) or does it merely signify state withdrawal in conditions of continuing gender inequality, exploitation, and violence? [7: we use the term “informalisation” to capture legal responses to gender that incorporate destandardisation, self-identification, lack of formalities, flexibility, and change. in other words, informalisation suggests a process in which sex/ gender are no longer recognised in fixed ways or through fixed processes. however, this does not mean that sex and gender no longer function as legal (or legally recognised) terms. ] 1. diversifying gender options in law we start, however, with a different legal strategy – one that, some have suggested, may prove more practical and effective than decertification at the current time (see discussion in clarke 2018). rather than abolishing legal gender status, it involves diversifying gender categories to reflect (in more, or less, open ways) people’s own self-identifications. expanding formal gender categories has occurred in several jurisdictions, most commonly through a third category of “non-binary” or “other” for gender registration or documentary purposes (see cannoot and decoster 2020; clarke 2018; holzer 2018).[footnoteref:8] here, formal gender identifications are retained in an officially expansive form, while the formalities required for people to move between sub-category headings are typically minimised.[footnoteref:9] the move towards treating gender as a less dualistic, more flexible framework aligns with a growing liberal common-sense that identifies gender as personal, elective, varied, and generally deserving of recognition (discussed further by cooper, this issue). it also aligns with a more practical set of concerns; namely, that state certification can be beneficial for those whose gender identity is experienced or treated as precarious or contested;[footnoteref:10] and it responds to some people’s desire or need to be formally recognised outside of the categories of male or female. [8: see for instance iceland, which in june 2019 introduced a third gender option (x), available if people apply to change their legal gender; https://www.pinknews.co.uk/2019/06/25/iceland-third-gender-trans-rights/. in the british context, see the women and equalities committee (2016: 11, para 31), which recommended: “the government must look into the need to create a legal category for those people with a gender identity outside that which is binary and the full implications of this”.] [9: currently, states vary on the procedures for identifying or changing gender in conditions where the gender category an individual takes up does not “match” their birth certificate entry. the question of match, however, is complicated by challenges to the notion that identifying birth sex as female, for instance, somehow can match (or straight-forwardly corresponds to) a later gender identity as woman or feminine; for discussion on the relationship between female and feminine, see paechter (2006). ] [10: this may be because their gender designation is an unconventional one, or because they are perceived as unconventionally expressing a conventional gender designation. it may also result from socio-economic, sexualised, racialised, disability-based and other social relations that shape how gender is manifested and experienced in different contexts. ] legal recognition of gender plurality seems to hold out promise, both symbolically and materially, of disrupting the hegemonic status of the dualistic gender categories currently operating in britain. however, in our view, introducing multiple gender categories is not a straight-forward solution to the problem of gender inequality and oppression. some commentators focus on the practical difficulties of extending legal recognition to third and other genders. adding categories to forms (e.g. for data collection purposes) is relatively straight-forward; dealing with spaces and services which are currently organised in a dualist fashion is more complex.[footnoteref:11] developing provision for other gender identifications is often posed sceptically to emphasise the host of practical, resource-based, and logistical difficulties. however, it also begs more fundamental questions about sex and gender-based differentiation. for feminists who argue for the eradication of gender, legislating gender diversity appears simply to add more, constricting and defining, “boxes”. jessica clarke (2015: 753) writes that more categories “may pigeonhole liminal, marginal, disruptive, diverse, and dynamic identities into a set of ill-fitting options, or penalize them with nonrecognition.” four other potential shortcomings also emerge from our research (see also braunschweig 2020; venditti 2020). first, the move to legally recognise diverse gender categories foregrounds gender as a human characteristic – an expression of the subject that deserves recognition. in so doing, the societal interactions and relations that generate gendered practices, categories, and interpellations, and that give them force and meaning, risk being further obscured. second, it treats gender as intrinsically, potentially, or hopefully equal[footnoteref:12] (see also paechter 2006) (even as it begs questions about what this gender might mean and be). third, it re-inscribes gender as normal and valuable – something that exists and is sufficiently significant to formalise. fourth, it gives state authorities the power to determine which gender categories count and what they count for (see also fletcher, this issue). sonia katyal (2017: 411) writes: “the legal regulation of sex… establishes the …power of the state – and its codes – in determining, recognizing, and ultimately administering identity.” as such, she argues, “the state gains a monopoly power in assigning …sex, obviating the power of alternative interpretations.” [11: this was recognised e.g. by the scottish government in its (first) consultation paper on the gender recognition act 2004 (2017: paras 7.23-7.29). cf. dunne and mulder (2018: 645) re the possible implications for binary sex-based services and facilities given germany’s new third legal category for intersex births. also renz, this issue, on how schools try to adapt to non-binary pupils.] [12: such an imaginary of “equal-but-different” resonates with a liberal multicultural discourse of diversity that has also been heavily critiqued (e.g., anthias 2002; fortier 2008).] 2. why might decertification be a good idea? diversifying gender as a set of legal identity categories may improve on the current two-gender system. however, its tendency to reify gender as a natural or benign aspect of personhood and, so, to downplay gender as a societal process, leads us to decertification instead. decertification involves state law’s withdrawal from determining, registering, or guaranteeing gender and can take different forms. its “lightest” formulation might mean a state treats sex as an optional descriptor on birth certificates even as people continue to have a presumptive legal sex/ gender (e.g., see wipfler 2016).[footnoteref:13] in april 2019, for instance, the australian state of tasmania introduced legal reform, which specified that sex, while still registered, would only be recorded on a birth certificate if the applicant requested it.[footnoteref:14] at its strongest, decertification might mean the state formally refusing to recognise gender as a dimension of personhood altogether. this could render gender status illegal or, at least, beyond state law’s regulatory structure, its terms of recognition or gaze.[footnoteref:15] a strong version of decertification, in the case of sex/ gender, could lead state law to withdraw from providing remedies for discrimination, from collecting data on gender-based inequalities, and from allowing gender terms to publicly animate services, organisations, policy decisions, and so on.[footnoteref:16] [13: “light/ strong” here describes the extent to which state law leaves itself able to recognise or attend to sex/ gender. it contrasts with the discussion of “soft” decertification (in cooper, this issue), which focuses on the institutional form of informalisation, i.e., whether it is undertaken by state law, by other legal orders, by public bodies engaged in policy-making, or by grass-roots bodies and communities. ] [14: people continue to have a legal sex/gender status, however, even if it is not displayed on their birth certificate. tasmanian law (amendments to the births, deaths and marriages registration act 1999 (tas) effective since september 2019) also now enables adults to register their gender as “male”, “female”, “non-binary”, “indeterminate”, or “neither exclusively female nor exclusively male”. the difficulties with this formulation, in suggesting that male and female are themselves somehow “binary”, run through many of the frameworks adopted. see also tasmania law reform institute (2020).] [15: for a parallel example, see attempts in france to remove race as a category from legislation and from the constitution, see https://www.france24.com/en/20130517-no-such-thing-as-race-french-lawmakers-france-racism-hollande and http://constitutionnet.org/news/removing-race-and-adding-gender-french-constitution-constitutional-redundancy-and-symbols. it is also unlawful to collect data on race or ethnic origin in france; see e.g. https://www.economist.com/europe/2009/03/26/to-count-or-not-to-count.] [16: for a related account of strong decertification as “disestablishment”, where state law and state bodies would assume a stance of neutrality between genders, and between gender and a lack of gender, see cruz (2002).] neither the light nor strong versions of decertification, however, form the centre-ground of our research. flag focuses on a version of decertification between these two poles. in other words, the decertification framework that we discuss does not entail state withdrawal, neutrality, or disregard when it comes to gender oppression; nor does it simply involve converting sex/ gender into an optional entry on a form when registering births. rather, we are interested in a version of decertification that removes the state from registering sex at birth, and so from pulling people into a formal, legally gendered edifice stretching across the life-course. at the same time, gender (and embodied sex) remain as sites of critical and remedial concern, including through equality law and affirmative action.[footnoteref:17] this puts gender on a legal par with sexuality and ethnicity – areas of inequality that, in britain, are not tied to the state’s assignment or formalisation of status. [17: for wider discussion on ways of reforming british equality law, both within the existing framework and in ways that do not rely on identity categories, see, e.g. collins (2003), hepple et al. (2000), hepple (2010) and (2011), malleson (2018), and solanke (2019). ] but why might decertification be a good idea? as one interviewee, rather damningly, remarked when asked about the proposal: “it's like taking a number plate off a car and saying you have changed the car. you haven't changed the car and the car is still a car. that is not going to deal with pollution, is it?” the experiences of people who seek to officially/legally transition in countries, like britain, where this is a cumbersome, expensive, slow, sometimes humiliating and pathologising process, offer one set of reasons why no longer having a presumptive legal gender based on birth-registered sex might be a good idea.[footnoteref:18] similarly, the experiences of people whose assigned birth sex comes to seem erroneous, or who identify as neither male nor female, also provide reasons why getting rid of such a registration structure might be beneficial (e.g., see garland and travis 2018; holzer 2018). decertification also allows people to live legally as agender – that is as formally outside of sex/ gender classificatory systems. this does not mean that they can escape the gendered society which we inhabit; identifying as agender does not ensure people are treated in non-gendered ways by others. but decertification would make it harder for organisational bodies to demand that people conform to (dualist) gendered norms, including in modes of address, dress codes, and documentation. more generally, decertification symbolises the possibility of living and raising children beyond gender, while providing a practical and discursive support for those who refuse to accede to gender’s terms (see also quinan et al. 2020; venditti 2020). [18: for further discussion of state classification procedures and the effects on people who transition, see davy (2010), hines (2010) and (2013: ch 4), renz (2017), wec (2016: 11-14, paras 29-45), and, more generally, spade (2003).] from a critical and feminist perspective, decertification also has other potential advantages. despite the momentum towards gender neutral law in countries such as britain (a move feminists do not read as unequivocally beneficial, as discussed below), registering sex at birth encodes sex as a significant normative distinction;[footnoteref:19] one, as cannoot and decoster (2020) also argue, that remains central to the maintenance of heteronormative order. our starting point is not that abolishing the assignment or registration of sex at birth will end gender-based socialisation, sexual violence, the economic exploitation of feminised workers and carers, or institutional arrangements that take affluent white men as the norm – that would be too easy (see also waylen 2014). however, to the extent that state law contributes to the constitution of gendered subjects, including through its hailing function (see also grabham, this issue), decertification may weaken the naturalisation of gender-based distinctions and inequalities, which arise from treating humans, from the start, as legally sexed and gendered subjects. in a sense, we might think of decertification as prefiguring what gender could more broadly become – patterned or idiosyncratic differences devoid of power. yet, like all prefiguring projects, one risk in acting “as if things were otherwise” is losing the critical engagement with how things currently are (see cooper 2020). can decertification contribute something here too? [19: and, also, as one that precedes birth (as regulations in the human fertilisation and embryology act 2008 on restricting embryo sex selection demonstrate). ] approaching gender as legally belonging to the subject, whether as a status or identity, can be problematic in reinforcing the notion that gender naturally takes a human shape. decertification undoes this reinforcement. it is not that it articulates, by itself, a more societal-shaped account of gender, but it avoids contributing to the notion that gender is something that belongs to humans, and only to humans. reducing gender to human-sized pieces leaves a lot of important processes unaccounted for, from the gendering of public space to the gendering of international relations and war. but in recognising these processes as also gendered, and in approaching gender as an ordering process that gives things shape, one challenge is how to navigate the relationship between a societal account and a human-centred[footnoteref:20] one, concerned with gendered expressions of selfhood, recognition, and attachment as well as gender-based harms (see also fletcher, this issue). [20: the gendered character of harm also extends beyond humans as a species; for discussion which troubles the human/ animal boundary when it comes to understanding social processes and affective relations, see riggs and peel (2016: ch 4). ] 3. feminist criticisms of decertification while some feminist interviewees and discussants did not view legal formalisation as necessary, or even helpful, for ameliorating gender-based injustices, others we spoke with did. they argued that retaining a system of legal gender status, based on the sex registered at birth (with some limited regulated movement between categories) provided a crucial regulatory framework for tackling gender-based domination, inequality, and violence. participants in the research identified three sites as especially vulnerable to decertification’s detrimental effects: women-only spaces and activities, affirmative action, and gender-based statistics. after discussing these, we explore managerial responses to the concerns raised before turning to address decertification’s potential to be leveraged into a wider critical project. unsettling single-sex spaces we start with sex/ gender-defined spaces, provision, and activities. these are diverse, and include sites of incarceration and discipline, such as prisons and detention centres, those of vulnerability, such as hospital wards and refuges, and sites of empowerment, pleasure, and community, such as women-only events and festivals (see, e.g. browne 2009; cooper 2012; jackson 2008). single-sex spaces, provision and activities are the focus for much of the concern that feminists have expressed about gender’s informalisation (see also peel and newman, this issue; renz, this issue)[footnoteref:21] – concerns that have not received much attention by those calling for sex/ gender “deregistration”.[footnoteref:22] these concerns align with different feminist politics and agendas; however, in recent years, their public take-up has been associated with the high-profile emergence of a feminist politics anchored in women’s (biological) sex-based rights. sex-based rights feminists argue that the viability of separate women’s activities and spaces depends on state law defining and categorising people by sex in consistent, shared, and durable ways.[footnoteref:23] decertification’s problem is that it informalises sex/ gender, allowing people to self-identify according to personal, potentially idiosyncratic criteria and understandings of what their gender (or sex) is. karen ingala smith, chief executive of the anti-violence organisation, nia, told a parliamentary inquiry on the equality act 2010, that also addressed the act’s effects on the operation of women-only spaces: [21: for further discussion from different perspectives, see browne (2004), jeffreys (2014), and schilt and westbrook (2015) (the "bathroom issue”); gottschalk (2009) (women’s services); lamble (2019), nellis (2019) and sharpe (2018) (prisons); and, more generally, dunne (2018), finlayson et al. (2018).] [22: we use the term decertification rather than deregistration to emphasise the extended implications of no longer having a formal sex/ gender status. these, as we discuss, go beyond how people are known or described in official documents and data. ] [23: they prefer the term “sex” to “gender” since it anchors women’s subordination in what they identify as a biologically immutable core; see also cooper (2019a).] “i have a comment on women-only spaces. that phrase is meaningless if we cannot even agree what a woman is. in our policy, we are very clear … there are many ways of being a woman, but there is one thing that women share in common; we are adult human females … we are very clear about that.”[footnoteref:24] [24: karen ingala smith, ceo, nia, oral evidence to wec on how the equality act 2010 affects the operation of single-sex services, hc 1470, 22 may 2019 (at q538), http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/women-and-equalities-committee/enforcing-the-equality-act-the-law-and-the-role-of-the-equality-and-human-rights-commission/oral/102570.html. ] one criticism of decertification, and of related moves to informalise sex/ gender, is that it would make sex/ gender-based divisions in prisons, schools, refuges, hostels, changing rooms, public toilets, and sports legally impossible or extremely difficult to accomplish since there would be no authoritative basis for excluding people or challenging their self-identification. critics argued, this would damage (cis) women’s lives in several ways. it would withdraw resources and opportunities for women’s empowerment; cause women to be outcompeted in sports; and leave women subject to male intrusions, unwanted sexual interactions, violence, and physical injury. as one interviewee remarked, “there is a bloody good reason why we separate prisoners by sex. female prisoners are at risk from male prisoners.” others noted that the effects of decertification on single-sex/ gender spaces would not be evenly felt. several interviewees mentioned challenges for religious women (and, in some cases, religious men) in navigating spaces where sexed bodies were no longer separated, citing concerns that it would impede their use of public provision such as leisure centres and swimming pools, along with other public spaces, if toilets and changing rooms moved to a mixed-sex model.[footnoteref:25] [25: less discussed was how affluence and poverty might structure experiences of same-sex/ gender provision. affluence allows people to purchase privacy in many contexts, and it is striking that many of the spaces that decertification might “mix”, such as hospital wards, hostels, immigration detention spaces, and prisons, are spaces of compelled or involuntary use, typically by poorer, more vulnerable populations.] confusing gender-based policy work a second set of concerns invoked by the proposal to decertify sex/ gender relate to statutory affirmative action provisions. there are currently limited contexts in england & wales where discrimination in favour of people on grounds of disadvantaged or under-represented “protected characteristics” is permitted. under the equality act s.159, where two people are of equal merit, an employer can choose to recruit or promote the one from an under-represented constituency.[footnoteref:26] training and education can also target under-represented groups to tackle occupational segregation (equality act s. 158);[footnoteref:27] and the equality act s. 104(7) permits women-only parliamentary shortlists (see also childs and lovenduski 2013; kelly and white 2016). critics’ worry here, then, is twofold. first, they worry that “under-representation” will lose its meaning, force, and evidentiary base if sex/ gender becomes self-determined. in britain and the eu, in recent decades, gender mainstreaming has entailed a series of measures to assess men and women’s accomplishments and presence in different areas of life; and to monitor the effects of existing and remedial policies on groups defined by their sex/ gender. if there is no clear and agreed differentiation between sex/ gender categories, can policies continue to be effectively assessed? [26: for analysis of the intersectional complexity of this, see malleson (2018: 604-5). a similar voluntary tie-break provision operates in relation to appointments to the judiciary (constitutional reform act 2005, s.27(5a), as inserted by the crime and courts act 2013), although the application of the provision has been restricted, for the time being, to “race and gender” (guidance on the jac’s approach to diversity and equal merit), updated october 2019, https://www.judicialappointments.gov.uk/equal-merit. ] [27: see ehrc (2019) on the use of positive action to address under-representation of ethnic minority groups, disabled people, and women in apprenticeships, alongside gender segregation in some sectors in which apprenticeships are undertaken.] remedial strategies’ reliance on knowing accurately “what people are” has also generated concern over how sex/ gender-based statistics are gathered. some women’s rights’ advocates argue that knowing people’s “sex” is essential for generating evidence of patterned disparities – from economic inequalities[footnoteref:28] to acts of violence.[footnoteref:29] disparities between women and men will be obscured if people answer questions about sex based on self-identified gender, while discrepancies in interpretation, and discontinuities in how survey questions are asked, make data less intelligible or meaningful. one interviewee told us: [28: e.g. for the purposes of mandatory gender pay gap reporting, the equality act 2010 (gender pay gap information) regulations 2017 requires relevant employers to report on differences, including between female and male employees’ rates of pay. currently, to bring a claim for equal pay for equal work under the equality act 2010, a person must be able to show that they are “employed on work that is equal to the work that a comparator of the opposite sex does”, s. 64. for a critique of the lack of attention paid to the potential effects of gender self-determination on women’s sex discrimination and equal pay claims (especially as regards the comparator test), see ludwig (2020).] [29: e.g., see the government’s biennial women and criminal justice report. https://www.gov.uk/government/statistics/women-and-the-criminal-justice-system-2017. this compiles statistics from data sources across the uk, including police recorded crime, to provide “a combined perspective on the typical experiences of the different sex groups in england and wales”. ] “the data [being] collect[ed] is meaningless, because it's not being held up to the same benchmark. how do you measure something if the measurement keeps changing? it has absolutely no meaning.” second, critics worried that decertification would allow people to claim unchallengeable membership of disadvantaged groups. these concerns, and potential consequences, were not located only in the future. in 2018, the labour party adopted a self-identification approach for women-only parliamentary shortlists – a move that generated considerable heat, politically and legally.[footnoteref:30] in the neighbouring jurisdiction of scotland, the move to define “woman” more expansively for the purposes of the gender representation on public boards (scotland) act 2018 also generated controversy.[footnoteref:31] these kinds of disputes are not limited to gender. anxieties about opportunistic entry, and the risk of identity categories being overly permeable, mark many discussions about positive action measures including in relation to ethnic, racial, and national categories (see also bailey 2008; bailey and peria 2010).[footnoteref:32] yet, as we discuss below, these concerns also raise wider questions about the value and effectiveness of remedial measures that rely on targeted bodies or group “representatives” as the way to address wider systemic inequalities. [30: e.g., see https://www.theguardian.com/society/2018/mar/17/legal-challenge-to-labour-over-shortlists-and-transwomen. see also coverage of david lewis’s suspension from the labour party for putting himself forward as a women’s officer on the provocatively claimed basis he self-identifies as a woman on wednesdays, e.g. https://www.theguardian.com/politics/2018/may/23/labour-suspends-activist-challenging-gender-self-identification-policy and https://blogs.spectator.co.uk/2018/05/the-catch-22-of-labours-gender-policy/. ] [31: it includes a person who is “living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female”, and so “has the protected characteristic of gender reassignment (within the meaning of section 7 of the equality act 2010)”, s. 2(c). see, further, statutory guidance, para 2.12-2.15: https://www.gov.scot/publications/gender-representation-public-boards-scotland-act-2018-statutory-guidance/. on criticism of a more expansive definition of “woman”, see https://www.scotsman.com/news/politics/demands-change-definition-who-should-qualify-woman-scots-equality-law-2550073. ] [32: although, as bailey (2008: 604) also notes, people may self-exclude from opportunities and benefits by not identifying with the targeted group or as disadvantaged people deserving benefits.] 4. responding to decertification’s risks across public media, concerns about the viability of single-sex provision, opportunistic take-up of targeted places, and unusable statistical data, arising from the informalisation of sex/ gender, have been repeatedly raised. similar concerns were expressed by some feminist interviewees regarding decertification. yet, the informalisation that decertification articulates also aligns with a feminist politics, intent on challenging the notion that “birth means destiny”. to recall our earlier discussion: informalisation through decertification removes official state processes that standardise, fix, and allocate sex/ gender categories. this allows people to shape their own terms of belonging and identification; makes it possible to live without a gender label; withdraws the constituting and naming work of the state; and, at a societal level, diminishes gender’s normative significance. at the same time, epistemically, decertification would remove an official prop sustaining the belief that gender (and, some would argue, sex) are intrinsic human attributes rather than organising principles of differentiation and inequality that contribute to societalisation (see cooper 2004; walby 2020). if decertification, then, has feminist benefits, what responses can be offered to the feminist concerns identified? how might the informalisation of sex/ gender operate without generating violence, unfairness, or ineffectual public policy? in this section we consider some responses that have been introduced or proposed to tackle the challenges associated with gender’s informalisation. we do so in two parts. first, we consider governance strategies for dealing with the dangers and risks associated with looser or weaker sex/ gender boundaries. these strategic responses are sometimes cited by advocates of self-determination; however, they have received little systematic attention – or critique – in this context. we then turn to a set of responses that use the challenge of decertification, politically, to question and unsettle different kinds of ordering arrangement – from elite sports to political representation. in this discussion, we orient this unsettling towards a progressive transformative politics that cannot be split into discrete strips – in which gender sits neatly alongside other relations of inequality. governance strategies for managing weaker sex/ gender boundaries we start with privacy – a rationality and technique routinely invoked by those who suggest that physical design can manage the proximity of bodies with different genitalia (regardless of sex/ gender identity) in toilet cubicles, changing rooms and, to a lesser degree, hostel and hospital wards.[footnoteref:33] here, privacy design becomes a solution to the threat of intrusion in contexts where people are undressing or undertaking intimate bodily functions.[footnoteref:34] yet, it is a solution that has also generated concerns. one interviewee remarked, [33: see nhs policy on delivering same-sex accommodation (2019: 5), “non-permanent structure changes to the estate can support the delivery of same-sex accommodation where the partition is solid, opaque and floor to ceiling, and protects the privacy and dignity of the individual patient”, https://improvement.nhs.uk/documents/6005/delivering_same_sex_accommodation_sep2019.pdf. ] [34: the stress (and reliance) on privacy through physical modifications, flagged in this and some other interviews, suggests a move away from designing such spaces for observation – witnessed, for instance, in the deliberate gaps around public toilet doors (see cavanagh 2010). a related development can be seen in the extension of the criminal law to tackle “upskirting”, see voyeurism (offences) act 2019 amending the sexual offences act 2003.] “my local swimming centre is moving from having separate cubicles to having a changing village. they were having a display about it and i was talking to one of the guys and i said … i am a bit worried, because in [town/city],[footnoteref:35] …the teenage boys pull themselves up over the edge and it's really intimidating. … they said, oh no, and then went through that the walls are floor to ceiling … [and] made of drill-proof material.” [35: town/city name redacted to protect anonymity.] the concerns of this interviewee indicate how moves to achieve privacy through walls can create a restless need for further and greater walls. but the problem does not only lie in privacy’s limitless logic. separation through physical barriers reflects, and so normalises, social and cultural anxieties about contact (haptic, but also optic and sometimes aural) that is cross-sex, between strangers, and intergenerational. creating private spaces may seem to provide protection. however, this assumption exists in uneasy tension with the policy principle that safety is regularly enhanced through the presence of others, including those not personally known. the tacit individualism, and normative bodily imaginaries, invoked by the notion of private cubicles, also coexists uneasily with a care-based ethics, in which spaces should comfortably incorporate carers, mobility aids, and other forms of assistance. but safety and care are not the only issues here. privacy norms may be socially unremarkable. yet, it is because they are socially unremarkable that they are powerful in reinforcing culturally specific notions of bodily modesty and shame – something that public breastfeeding activism and nudist politics, in different ways, have also sought to address (e.g., see barcan 2004). a second governance technique for managing gender’s informalisation, and the specific mix of bodies that may arise, is “risk assessment”. utilised in a wide variety of venues, including carceral spaces and provision for vulnerable populations, such as hostels and refuges, risk assessment gets folded into determinations of who is included/ excluded, and the terms under which this occurs. while introducing dividers and walls pre-empts embarrassment and risk by keeping bodies apart, risk assessment determines which bodies can gather, and attends to the social and spatial indices of danger,[footnoteref:36] through actuarial or governance techniques. like the walls that designing for privacy introduces, risk assessment can also be read as an attempt to box social subjects in. even when it focuses on behaviours, rather than bodies or identities/ subjectivities, risk assessment is often applied unevenly. certain subjects, including those who are economically marginal, racialised (see e.g. mythen et al. 2009), or who have transitioned,[footnoteref:37] are more typically identified as subjects of concern. in the precautionary drive to pre-empt possible and imagined risks by knowing their signs, risk assessment restrains and excludes those deemed to hold danger before danger occurs (see rose 2000; werth 2019). [36: linked also, in current discourse, to safeguarding, this can also have a spatial and procedural dimension as safe spaces, and orderly processes, are relied upon to organise (out) risk. see also ramsay (2017) on safe spaces and the prevent programme/duty (https://www.gov.uk/government/publications/prevent-duty-guidance.] [37: ministry of justice and hm prison and probation service policy on the care and management of individuals who are transgender (reissued 27 january 2020), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/825621/transgender-pf.pdf. ] with its focus on harm, risk assessment techniques, like privacy measures, also insufficiently attend to an important set of reasons why feminists and others desire women-only provision. these reasons are not primarily about safety or danger but about the pleasures, solidarities, community-building, and politics that come from activism and consciousness raising, as well as from cultural, religious, arts-based, erotic and recreational activities, that are women-only (see jeffreys 2018). state law’s withdrawal from registering and assigning sex/ gender does not make women-only spaces impossible. it depends on whether community organisations, as informal legal orders, can do this selection work instead. for this to happen, state law plays a part. this is one reason why we have not described decertification as deregulation since state law is likely to continue to structure the powers and freedoms of other bodies. in conditions of decertification, state law can structure rulemaking by community-based organisations, in relation to membership and access, in several ways,[footnoteref:38] with varying implications for those who are vulnerable to organisational or community exclusion.[footnoteref:39] state law might permit organisations to identify target categories for membership, services, and activities (for instance, as agender, women, subordinate genders, or men-only) but then require organisations to admit everyone who self-identifies. it might allow organisations to set category criteria, establishing, for instance, definitional principles for what it means to be a woman, man, agender etc. it might allow organisations to determine the evidence that is required to meet the criteria; and it might permit organisations to assess whether individuals have adequately met the criteria, even as certain modes of assessment might be proscribed. the extent of organisational autonomy appears a key factor in shaping the social landscape post-decertification, albeit one insufficiently discussed. asking about decertification is to also ask about state relations with other bodies, in terms of the latter’s freedom, power, and resources. community bodies also have rules and norms; and so, the interplay between different legal orders is central to decertification; state law is not the only law that counts. [38: permitted organisational powers might depend on organisational size in terms of budget, membership or user numbers; whether the organisation provides a government-funded public service; its type of activity – campaigning or service provision; whether it is aimed at subordinate groups rather than dominant ones; or something else. legal assessment of these kinds of criteria, in relation to organisational autonomy to define gender categories, arose in vancouver rape relief society v. nixon et al. [2005] bcca 601; see, also, e.g., finlay (2003). ] [39: this is a live contemporary issue generating litigation in contexts where religious bodies and communities, in particular, seek to exclude members who are deemed to lack the requisite social characteristics, such as being heterosexual or non-trans, see cooper (2019b); see also in the matter of m (children) [2017] ewca civ 2164 (appealing denial of contact for a transgender woman with her children in the orthodox charedi community). ] the final approach to managing the informalisation of sex/ gender, we want briefly to address, foregrounds practice. decertification may mean that gender is not assigned or registered by state authorities, but state law can still treat gender as a property or characteristic of subjects. here, instead of state law basing formal recognition on compliance with specific formalities or biological attributes, it recognises people as members of a particular gender category because they act, in everyday life, as if they are. jessica clarke (2005) explores this practice-based approach in an interesting and illuminating discussion of the commonalities between adverse possession, functional parenthood, and common-law marriage. while she suggests a practice-based approach has been less evident for gender, things have changed since her article’s publication. the “real life test” comprises a formal element in several legally recognised transitioning procedures. for instance, the gender recognition act 2004, s.2(1)(b) requires people to live for two years in their “acquired” gender.[footnoteref:40] a british practice-based approach is also evident in the growing de facto recognition, by state and other public authorities, of the gender identity in which people (effectively) live (see also cooper, this issue).[footnoteref:41] [40: this can be met by a change of name and pronouns, including on official documentation.] [41: although see r (on the application of mcconnell & anor) v. the registrar general for england and wales [2020] ewca civ 559, upholding the ruling in r (on the application of tt) v. registrar general for england and wales and others [2019] ewhc 2384 (fam), in which the court concluded (at para 279) that a person’s status as mother “derives from their biological role in giving birth” even when the person giving birth is a trans man. thus, a functional approach to motherhood here trumped legal gender status. ] for some, living in a gender – with its connotations of gender as a place in which people dwell (and so should dwell comfortably) – constitutes the proper basis for determining which category people come within for forms, take-up of single-sex provision, admittance to community membership, and affirmative action. a practice-based standard also speaks to feminist concerns about people claiming to be female without experiencing the quotidian subordinations, erasures, and dismissals that come with living and being treated as a woman; and it recognises an important interactive dimension of social identity/ status – that it depends on and is forged through relations with others. however, one problem with a practice-based approach to gender, as with other de facto (or retrospective) bases for assigning status, is that it can reinforce established norms – what it means and looks like to act as an owner, parent, spouse, man, or woman. in the case of gender, one fear is that inequalities and stereotypes about how women and men behave get reinforced. this concern is also expressed by people going through legal transitioning procedures who feel compelled into more stereotypical behaviour in order to successfully attain the formal status sought (renz 2017; 2020).[footnoteref:42] a practice or experience-based approach to gender status might, however, take other forms. scottish-based guidance on gender representation on public boards makes it clear that to be eligible as a woman does not require someone “to dress, look or behave in any particular way.”[footnoteref:43] but what then is this phenomenon: “gender”? if it mainly concerns pronouns and names, on what basis should it remain a regulatory object for states? if it is about domination, and is defined by experiences of domination, does it reduce gender to oppression; and is this a problem? if it is about accomplishment or attainment, does gender become encoded as a form of property that can be invested in, acquired, and given value (see cooper and renz 2016). we return to the dilemma of how to account for gender below. [42: in other cases, conventional gendered enactments may be deliberately (if ambivalently) taken up to minimise personal risk.] [43: see https://www.gov.scot/publications/gender-representation-public-boards-scotland-act-2018-statutory-guidance/pages/2/ para 2.13.] embedding decertification within a broader critical politics privacy, risk assessment, devolved authority, and recognising “lived” gender form part of the governance toolbox used to manage the growing informalisation of gender. this toolbox, we anticipate, would also be available to deal with the dilemmas that decertification might pose. the tools we have discussed can be used in aid of diverse political projects, but we have focused here on their take-up to maintain and safeguard the organisational provision and structures that already exist. decertification, however, can also be sutured to a more open-ended politics that questions the premises and purposes underlying anxieties about informalisation. in the discussion that follows, we consider how a purposive or granulated approach can problematise the taken-for-granted usages of sex/ gender in pursuit of a broader critical social justice politics. this does not make gender’s terms always or necessarily redundant. suturing the decertification of sex/ gender to the undoing of other relations of inequality organised around race, socio-economic class, disability, and sexuality involves a series of different moves. these highlight the challenges in using and also in not using, the classificatory terms and understandings that liberal governments and law rely upon (see also malleson 2018). we start with the claim that policymakers, planners, and medical professionals need to know people’s sex, to consider whether categories of sex and gender have become increasingly unreliable proxies. knowing that someone is a woman or man, for instance, may give little indication of what their body is like, or what it can do. one official told us, “it feels like it’s only really medical situations where that would be the case and, there, i don’t think you would simply be asking a question on what is your sex? you would be asking much more specific questions to do with, i don't know, hormones or anatomy or things like that or what was actually relevant. … the sort of example that people will usually bring up is population projections and essentially working out how many babies might be born. but, equally, if you kind of think further about that, you realise that well, right now, the projections are based on the number of people who say they are female, but plenty of those women can’t have kids for all sorts of reasons. it’s already an estimate.” as this interviewee suggests, even leaving aside questions of choice or social diversity, the argument that sex provides a stable classificatory structure is complicated by the bodily changes some people undergo (hormonal and through surgery); by bodies that diverge from sexed expectations (e.g., hester 2004); and by science research which challenges the notion of a sex-based binary division (e.g, see fausto-sterling 2016; sanz 2017). at the same time, there remain good reasons to know how people live, shape, and experience the world, including in the terms that social relations give rise to. while using the language of gender, class, race, and other social relations may risk their normalisation (e.g., see maré 2014), a critically attentive account and politics requires them. but not all contexts are best addressed through these social relational terms. competitive sport is one area where other frameworks may be worth attending to. the problem of sex has long been identified as an issue in women’s sports (erikainen 2019). in the contemporary period, trans women’s participation has provided a focus for anxieties about the limits or disutility of regulating and sorting participation through gender categories – whether lived or legal. testosterone levels are frequently used to determine entry into women’s sports (e.g. see cooky and dworkin 2013; henne 2014)[footnoteref:44] perpetuating racialised histories of scrutiny and judgment as black women and those from the global south become especially subject to intrusive bodily incursions, judgments, and norms (karkazis and jordan-young 2018). yet, despite the belief, held by some, that hormonal or “real” sex is the proper basis for determining participation in sports, “meaningful competition” can be calibrated in other ways (see, e.g., kerr and obel 2018). sports, such as boxing, judo, and wrestling, and the paralympic games, use sex/ gender as an allocation device; but they also use other criteria, such as body weight, to determine “fair” or “meaningful” competition.[footnoteref:45] such criteria are not fixed or uncontentious; paralympic sports, particularly, demonstrate some of the contestations and constant adjustments that complex systems entail as they assess different kinds of strength and capacity.[footnoteref:46] [44: see also the international olympic committee’s guidelines for transgender athletes, https://www.theguardian.com/sport/2019/sep/24/ioc-delays-new-transgender-guidelines-2020-olympics; and world rugby’s guidelines, https://www.theguardian.com/sport/2020/jul/19/transwomen-face-potential-womens-rugby-ban-over-safety-concerns. ] [45: see for instance, https://paralympics.org.uk/sports/para-powerlifting. ] [46: see for instance, https://www.abc.net.au/news/2020-08-23/paralaympics-wheelchair-basketball-reclassification-ipc/12539302; https://www.abc.net.au/news/2016-09-06/what-do-the-paralympic-classifications-mean/7813860; https://www.theguardian.com/sport/2017/oct/30/paralympic-athletes-face-reclassification-in-row-over-exaggerated-disabilities; and https://www.insidethegames.biz/articles/1057214/tim-hollingsworth-the-continued-positive-development-of-classification-fundamental-to-development-of-paralympic-sport. ] revisiting the question of a “fairer” match, rather than assuming it aligns with sex, also opens larger, more fundamental questions about the purpose of elite sports and athletic competition, along with the geopolitical and economic inequalities that skew success (by shaping, for instance, access and time with elite training facilities and equipment). purpose and the opportunity to think about material practices in other terms also arise in the different context of surveys and data-gathering. sex and gender are routinely asked for on forms (with tensions and debate about whether both, neither, or one term only should be used).[footnoteref:47] but what these terms do in fact reveal remains opaque. a purposive, more granular, approach, by contrast, focuses on what it is that planners, researchers, employers, or service providers are trying to discover. is it about reproductive capacity, the relationship between lived gender (which might include multiple genders) and pay, or the relationship of sexual and racial violence, care work and care work’s uptake to gender roles, experiences, appearance, body form, or something else? emphasising purpose and context here makes two features that are typically tacit explicit. first, data does not simply reflect and represent specific concerns, identities, and interests; it also helps to constitute them (see squires 2008). second, the production and use of data take place within and through a series of wider conversations that, as here, can be intensely politicised (see murray and hunter blackburn 2019). when it comes to surveys and other data-gathering documents, respondents will consider what categories were intended to mean and should mean, and how the data will be used, as they deliberate upon what box to tick. subsequently, those undertaking data analysis trace back along these processes (see peel and newman, this issue). [47: see sullivan (2020a) and (2020b), and responses from hines (2020) and fugard (2020); also the office for national statistics draft guidance regarding questions on sex, gender identity and sexual orientation for the 2019 census rehearsal for the 2021 census for england and wales: https://www.ons.gov.uk/census/censustransformationprogramme/questiondevelopment/genderidentity/guidanceforquestionsonsexgenderidentityandsexualorientationforthe2019censusrehearsalforthe2021census. ] positive discrimination and affirmative action identify a further area where a purposive and granular approach supports critical reflection, responding to critics’ concerns that loosely defined or absent sex/ gender boundaries will generate opportunistic self-characterisations. again, such an approach asks: what exactly is being sought? in the case of parliamentary representation, where conflict has arisen in britain over the means and rationale for determining “woman” in women-only shortlists (as described earlier), does the gendered “lack” to be remedied and compensated for concern a particular social optics, genitalia, status, experience, agenda, interest, or something else (also mackay 2008)? while the popular tendency is to assume these features cohere, this has been questioned on multiple grounds. this does not mean an absence of gender patterning, simply that it takes a looser, more complex, and intersectional form (e.g., see hobson et al., 2007; smooth 2011). approaching positive discrimination in broader social justice terms means attending to the wider context (also mackay 2008), to the mix of inequalities at play (evans 2016; krook and nugent 2016), and to other ways of advancing gender equality that do not rely on “correcting” the demographics of bodies in elite spaces.[footnoteref:48] [48: women-only shortlists may sidestep rather than address the barriers to women’s representation in parliament, see uk parliament (2018) and wec’s work in this area (2017-18) https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/women-house-of-commons-evidence-17-19/. for related barriers to women’s participation in local government, see local government commission (2017).] in the case of women’s political representation, parliamentary organisations, policy agencies and social movements may prove more effective in representing (in their diversity) women or subordinate gender experiences (allen and childs 2019; squires 2008; weldon 2002). the demographics of parliament (and government) is also only one aspect of how state politics is gendered. other aspects include the schedules, occupational norms, remit, purview, rationalities, discursive style, authority, and power of state apparatuses. these are gendered in their uneven correspondence with male, female, and other actors (in terms of who establishes, uses, and is affected by them).[footnoteref:49] but they are also gendered through their constitutional, political, economic, and cultural histories which, rooted in the divisions and norms of patriarchal power, continue to exert effects. finally, it is important to note that parliamentary decision-making is one tip of a far larger, more complex iceberg of policy practice, much of which is carried out by non-state bodies as political power and responsibility has moved to other geopolitical entities including non-state agencies. johnson (2018: 69-108) describes how privileged women in power have been “boxed in” through informal rules that have had “bait and switch” effects – where levers of power appear in reach only for those reaching them to find that political power no longer resides there. these lines of analysis, which foreground the complexity of substantive political representation and responsiveness do not mean we should dismiss the value of attending to the demographics of representation (see also cooper, this issue). but they do act as a reminder that when representation becomes a site of boundary disputes and social policing, as proprietary claims get made over categories now treated as belongings, bedrock concerns with the democratisation of political power can get lost. [49: for instance, see annesley and gains (2010: 910) on “the gendered ‘disposition’ of the core executive in terms of recruitment, resource allocation, relationships and rules and how this disposition structures the opportunities available to feminist actors therein to make a change to policy outcomes.”] policy and regulatory approaches that refuse to rely on sex/ gender as a basis for naming subjects, or, indeed, refuse to rely on naming subjects altogether may seem better able to respond to the radically diverse, unevenly patterned ways that sex/ gender is lived and organised. but a granular approach that disassembles categories can also appear depoliticising to the extent it denies (or fragments) gendered forms, and their enduring, hierarchically ordered effects. one contemporary context where this has arisen is in how to describe what are conventionally known as sexed body parts. should they be described neutrally to be inclusive or through the language that has given them social and political meaning – “uterusand vagina-havers” or “women”, for instance?[footnoteref:50] some feminist critics of sex-neutral body-language assert the intrinsically sexed character of physical patterns such as menstrual cycles and menopause, or of the need to use gendered terms that users and other publics will recognise. others emphasise the importance of claiming back a gendered category that has been disavowed. one ngo member told us, [50: see, e.g. the debate surrounding the british medical association’s guidelines, which recommend that staff use the term “pregnant people” rather than “expectant mothers”, https://www.telegraph.co.uk/news/2017/01/29/dont-call-pregnant-women-expectant-mothers-might-offend-transgender/; and similar criticism of cancer research’s leaflet targeting “anyone with a cervix”, https://www.telegraph.co.uk/news/2018/06/14/cancer-research-removes-word-women-smear-campaign-amid-transgender/. ] “i mean there are good feminist reasons for …not bowing to pressure to never again utter the word ‘woman’, which is rapidly becoming a dirty word. … i think there are feminist reasons and reasons … to do with equality. i think there are also very pragmatic reasons for us in terms of the groups that we work with, that actually being understandable and accessible, and talking to women in language that they understand, given that lots of the women who access our services don’t have english as their first language.... i’ve seen it elsewhere, pressures to talk about people with uteruses or people who can become pregnant and, actually, it’s just very clumsy language that doesn’t speak to the vast majority of women who would need those services.” identifying and naming bodily assemblages in gendered terms can be important because it is in and through these social terms that such assemblages form and work. in other words, it is through concepts such as woman and man that gendered characteristics are articulated together, given meaning, and have effects. a similar argument can be made for other categories of social injustice. the challenge, however, is how to recognise the organising work, ideationally and materially, that these terms do while supporting moves to destabilise them (given their legacies, exclusions and power-asymmetries), on the one hand, and, on the other, to prefigure new more progressive representational (and more-than-representational) terms. 5. decertification and gender-neutral androcentric law the place of human subjects in negotiating, recrafting, and being subject to the social life of gender is an enduringly complex and complicating aspect of gender-based law reform. while different features of oppression are felt as harms by human subjects, we approach gender in this article and project, more generally, as a societal condition. people experience gender; and, personally and collectively, help to remake it, but conceptualising gender as a property or dimension of personhood is too limited. gender is far more networked,[footnoteref:51] far more social, and far more heterogeneous in its forms. thus, in thinking about decertification’s contribution to a feminist and critical politics, one question that arises is what decertification’s impact might be on the institutional elements (of rules, systems, roles, power relations, things, places, interactions and temporalities) that make up gender, and which gender in turn makes up (see also martin 2004; risman 2004; cooper, this issue). [51: this is something clarke (2019: 195-8) briefly discusses in relation to “networked pregnancies”, in exploring the conditions and consequences of pregnancy as something that extends beyond individuals, couples, or gestational/ functional parents.] merely removing the legal hailing so that gender is no longer interpellated through the state-endorsed cry: “it’s a girl” or “boy” causes some feminists to fear that undesirable gendered social processes would flourish. instead of delinking sex/ gender from human subjects in ways that stimulate critical awareness, moves such as decertification may, undesirably, reinforce normative and powerful forms of masculinity. this argument has two strands. the first reads decertification as a form of gender-neutral law. gender-neutral law typically adopts male norms in its expectations of how people behave and live, and then applies these norms to all social subjects. feminists have long critiqued gender-neutral law (see generally conaghan 2000 and 2013; munro 2007; smart 1992), and similar concerns were expressed in criticisms of decertification, specifically, that it would not remove gendered inequalities but simply make them harder to identify and to tackle. the second strand of argument focuses less on the asymmetrical effects of gender-neutral law and more on its values and ethos. one dystopic narration has decertification escalate the development of androcentric society. here, members share and are subject to masculine values and norms in all politically meaningful respects (even as presented gender identities may vary); other gendered values are located elsewhere, beyond the borders of the “here and now”. in other words, internal androcentric norms are defined by an exterior societal “other” – those contrasting, seemingly feminised (but not only feminised) norms, meanings, systems, and experiences relocated to a place beyond the present. concern that decertification, at its most successful, would intensify androcentric norm-building within social and political life raises questions of strategy and process. it also poses questions about the relationship between gender and other socio-political norms and principles. what does it mean to align specific norms and principles with specific genders in declaring that societal processes are androcentric? feminists have long argued that militarism, competition, global corporate markets, neoliberal government, the devaluing of care, and environmental depredation are in some way male or masculine (see also beckwith 2005). yet, even if this alignment was once powerfully pervasive, what evidence exists – and what evidence needs to exist to know that it endures? is ongoing alignment or suturing something that can be assumed; or does there arrive a point when certain values, practices, or regimes (militarism, competition etc) are no longer cultivated and experienced, or usefully represented critically, in gendered terms? one feminist ngo activist captured this uncertainty when interviewed. having argued that men receive higher bonuses than women from employers because they express more highly regarded values, she commented: “maybe it’s not gender difference. maybe it’s ‘approach difference’ or ‘priority difference’ within society that we’ve linked to gender. but maybe it doesn’t need to be linked to gender.” severing the linkages between gender and specific social values can be read in critical, prefigurative, reform-oriented, or normative terms as what is, could, or should be (see also mackay 2014).[footnoteref:52] yet, as a critical project, flag situates the proposal to decertify sex/ gender within a broader framework attuned to the injuries and harms of different social injustices as well as more utopian “better society” values. it may therefore not much matter whether contemporary (or future) practices and values of care-work, peace, environmental sustainability, and horizontal decision-making are defined as feminist, feminine or in some other fashion. abandoning the need to draw tight critical/ normative alignments between projects and categories allows for a more capacious approach, including in relation to the policy dilemmas that decertification invokes. following the thread of decertification takes us to a series of value-based policy choices that are not primarily about gender but are nonetheless brought into the spotlight through the question of gender’s legal reform. if state law in england & wales was changed to eliminate legal sex/ gender status, other laws would also require revisions. these include laws relating to embryo selection,[footnoteref:53] parental leave,[footnoteref:54] schooling,[footnoteref:55] and housing, among others. for instance, to take the last, less familiar example: overcrowding is defined in the housing act 1985 as taking place when “two persons of opposite sexes who are not living together as a married couple or civil partners”, and who are age ten or over, are required to share a bedroom.[footnoteref:56] how should this be amended if decertification makes the legal notion of “opposite sex” meaningless? progressive welfare principles might suggest all teenagers, and adults, should have their own bedrooms, with knock-on effects for building and allocating public housing. such a move could be framed in terms of feminism – whether as a liberal project of human autonomy and privacy or a left project of economic redistribution through the expansion of public welfare. but given flag’s broad social justice perspective, nothing rests on labelling this framing as a feminist one or as one anchored in other social justice norms. [52: in a detailed discussion of “constitutional re-engineering”, to re-gender the scottish parliament, fiona mackay (2014: 559) explores how “each principle of the new politics model can be seen to present a challenge to ‘politics as usual’ and traditional ‘command and control’ models.” however, as she (2014: 561) discusses, these “new elements have not displaced the old but interact and coexist with masculinist practices and underlying norms of ‘politics as usual’”. ] [53: see human fertilisation and embryology act 2008 (amending the 1990 act), s.11 and schedule 2, s.1za-c.] [54: a wide range of primary and secondary legislation governs this area, including the employment rights act 1996, the maternity and parental leave etc regulations 1999, and the shared parental leave regulations 2014.] [55: the equality act 2010, s.85(1), prohibits discrimination by a school governing body in relation to offers of admission, and terms of admission, to a school, but insofar as it relates to sex, s. 85(1) does not apply to single-sex schools (by virtue of an exemption provided in schedule 11, s.1).] [56: housing act 1985, ss.324 and 325. ] conclusion this article has explored the speculative proposal to decertify sex/ gender. given the alternative legal path of formally recognising sex/ gender diversity, we have traced arguments in favour of decertification, the counterarguments of critics, and different ways of responding to the issues that critics pose. in doing so, we have considered two kinds of response. the first involves governance strategies to minimise the confrontations, which it is feared, gender’s informalisation will lead to, so that present arrangements can continue. here, we have considered use of privacy design, risk assessment, decentralising classificatory authority, and recognition of “lived” gender. the second set of responses links sex/ gender’s informalisation to a politics of unsettling and re-examination, drawing on techniques of granularity, deconstruction, connection-forging, and refocus, to pivot decertification towards more fundamental and multiplex social justice agendas. here, rather than just asking how we can know and define women for sports competition, it asks about the purpose of sports-based competition. rather than ask how we can ensure (cis) women do not lose opportunities to make up effective women-only parliamentary shortlists, it asks about the place of representation in political processes. asking these questions does not deny the value of more moderate reforms, and it is not necessarily intended to supplant them as if we inhabited a zero-sum political game. but when increasing energy is placed in maintenance strategies that seek to minimise and contain the challenges that gender’s informalisation poses, including through decertification, it becomes important to ask what this maintenance is for. and to explore how decertification might be tied to a more challenging set of responses as well. in this article, and project more generally, we approach decertification as a thread – something we “pull” (and pull apart) to consider the challenges and politics that it elicits. this pulling is partly deliberate, but it is also an inevitability in adopting a methodology that does not dismiss, as tangential, the wider issues and concerns that decertification raises. law reform here becomes a critical method for studying connection and relationship, and for branching out against the countertendency to narrow in as the study of problems funnels towards solutions. following the thread of decertification takes us to four clusters of issues. one is the emotional investments, anxieties, hopes, and (occasionally) pleasures triggered by talk of gender-based law reform as peel and newman (this issue) also explore. another concerns the principles for deciding how the british government might act. if every part of state law that references sex or gender status (implicitly or explicitly) requires revisiting and probably revision, how should these revisions be made? what choices should be made so that a wider progressive politics of welfare, anti-poverty, environmentalism, cooperation, care, internationalism, and anti-racism is embedded within these reforms? this question takes us to much longer and wider debates about what can be accomplished, politically and legally, within the evolving frameworks of liberal nation-state capitalism (see also manji, this issue). a third cluster of issues relates to governance techniques, including of statutory law-making (grabham, this issue), and to how people and agencies make sense of law. asking the members and staff of equality agencies, ngos, trade unions, governmental bodies and wider publics about decertification brings their views and usages of law as it is to the fore. while this foregrounds the take-up and comprehension of state law, equally important for our research is state law’s ongoing and evolving relationship to organisational and community rules and norms (e.g., merry 1988). for instance, many employers and service providers now seek to implement a “gender as diversity” approach in the registration forms and pronouns they use. flora renz (this issue) explores how some girls’ schools now welcome people with other gender identities even as they retain their historic single-sex name. this is one response to what gender is identified as coming to mean and be. it is not required by state law, but it is also not prohibited by it. finally, this article has followed the thread of decertification to questions of conceptualisation – of what gender is given the critical value of pulling it away from the propertied form that is coming to dominate. we do not want to ignore or dismiss the ways in which people take up gender and are injured by gender; recognising too that many people today, in britain as elsewhere, treat gender as a positive attachment. for some, a paradigm of multicultural gender diversity, somehow divorced from relations of power, provides a major political aspiration. yet, its posing requires more discussion about what such a gender might mean. if gender frees itself from relations of domination, does it simply become a stylisation or modality of the self? 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gaye orr[footnoteref:1]* [1: * lecturer in law, bournemouth university, uk. email gorr@bournemouth.ac.uk ] abstract in cases where mothers were wrongfully convicted of killing their children, both forensic and non-forensic evidence was admitted. although the expert opinions and evidence were subsequently robustly scrutinised, the same is not true for informal evidence of maternal behaviour. the paper proposes that if we consider an analogous area of criminal justice which has seen interpretations of the feminine strongly challenged, such as in rape trials, then we might learn from rape myth scholarship how better to analyse child death cases. the article explores the difficult issues in rape myth scholarship in identifying what a rape myth is, how widely it is held, and how complex layers of functionality and connections constitute belief systems. by focussing on behavioural normativity and the deployment of fixed beliefs the article proposes a device based on the insights of rape myth scholarship with which to interrogate the behaviour evidence admitted in child death cases. using the concept of modern mothering myths may prevent the possibility of background evidence being used as a vehicle for smuggling in prejudicial material of little probative value. introduction when mothers stand trial for killing their children, the body of evidence presented has to be considered as a whole. given the array of its constituent parts it may be difficult to know why precisely a woman has been found guilty. in seeking better to understand how particular miscarriages of justice occurred, my research has explored a number of cases involving mothers accused of killing their children, including those of sally clark, angela cannings, angela gay and donna anthony.[footnoteref:2] these cases were notably characterised by expert evidence and expert witnesses later shown to be unsound and unreliable respectively, and inevitably the search for reasons to explain the wrongful convictions have concentrated on the expert evidence and its handling by the criminal justice system (cjs).[footnoteref:3] [2: referred to here as child death cases: r v clark (sally)(appeal against conviction) (no 2) [2003] ewca crim 1020, [2003] 2 fcr 447; r v cannings (angela) [2004] ewca crim 1, [2004] 1 wlr 2607; r v gay (angela), r v gay (ian anthony) [2006] ewca crim 820, 2006 wl 1078909; r v donna anthony (appeal against conviction) (no 2) [2005] ewca crim 952, 2005 wl 816001.] [3: law commission, the admissibility of expert evidence in criminal proceedings in england and wales a new approach to the determination of evidentiary reliability (law com consultation paper no 190, 2009); law commission, the admissibility of expert evidence in criminal proceedings in england and wales (law com no 325, 2011).] but, as feminist scholar celia wells commented, there was ‘no attempt…to ask why it was so easy to leap to conclusions that now seem so wrong’.[footnoteref:4] she submitted that ‘feminist arguments’[footnoteref:5] could help ‘unravel these questions’.[footnoteref:6] fiona raitt and research psychologist suzanne zeedyk further proposed that ‘hidden factors’[footnoteref:7] such as ‘underlying assumptions’[footnoteref:8] and ‘discourses of motherhood’[footnoteref:9] may have ‘played a major role in the initial convictions of cannings and clark’.[footnoteref:10] emma cunliffe too suggested that the mechanism for achieving a mother’s (wrongful) conviction in clark and cannings, drew on discourses of motherhood within legal discourses.[footnoteref:11] difficulties arise from such propositions however, because they are sizeable claims: for example that, in the absence of conclusive expert opinion, advocates were forced to explain children’s deaths in clark and cannings by filling the evidential gaps using ‘social expectations’ about ‘proper mothering’;[footnoteref:12] or that where the diagnostic techniques of child mistreatment are uncertain, mothers may be criminalised by deliberately portraying them as failing to conform to the dominant ideology of motherhood.[footnoteref:13] such claims are, as laura hoyano rightly points out, ‘very large and diffuse’.[footnoteref:14] it is possible, that the difficulties arise because ‘hidden factors’,[footnoteref:15] ‘underlying assumptions’[footnoteref:16] and ‘discourses of mothering’[footnoteref:17] are as yet insufficiently defined and require further analysis in order to clarify how they are deployed by agents of the cjs in portraying maternal behaviour. [4: wells c, ‘the impact of feminist thinking on criminal law and justice: contradiction, complexity, conviction and connection’ [2004] crim lr 88, 99.] [5: ibid.] [6: ibid.] [7: raitt f and zeedyk s, ‘mothers on trial: discourses of cot death and munchausen’s syndrome by proxy’ (2004) 12 fem ls 257, 263.] [8: ibid.] [9: ibid.] [10: ibid. ] [11: cunliffe e, murder, medicine and motherhood (hart publishing 2011) 37, 100, 101, referencing english criminal cases in her examination of the conviction of australian kathleen folbigg, ‘convicted of the murder of two of her infant children, the manslaughter of another and of causing grievous bodily harm to, and murdering a fourth’: r v folbigg [2003] nswsc 895 para 1 per barr j; r v folbigg [2005] nswcca 23.] [12: raitt and zeedyk (n 6) 264.] [13: cunliffe (n 10) 100 citing klein m, ‘complicating the ideology of motherhood: child welfare law and first nation women’ in ma fineman and i karpin (eds) mothers in law: feminist theory and the legal regulation of motherhood (colombia up 1995) and roberts de, ‘motherhood and crime’ (1993) 79 iowa l rev.] [14: hoyano l, ‘book review, murder, medicine and motherhood’ (2014) 18(2) evid & proof 200, 202.] [15: raitt and zeedyk (n 6) 263.] [16: ibid] [17: ibid.] as both hunter[footnoteref:18] and redmayne[footnoteref:19] suggest a technically complex evidential context may hide the true operation of informal background or character evidence in practice[footnoteref:20] and in examining the wrongful conviction cases, it is evident that informal non-medical[footnoteref:21] and non-forensic material[footnoteref:22] such as maternal behaviour and childcare[footnoteref:23] was freely admitted to these trials. when further child death cases were examined where female childminders and baby-sitters were convicted,[footnoteref:24] where mothers remain incarcerated,[footnoteref:25] and where mothers were acquitted[footnoteref:26] or their conviction was reduced from murder to manslaughter,[footnoteref:27] information about maternal behaviour and childcare was admitted in all cases apart from two.[footnoteref:28] consequently, it appears that information about a woman’s behaviour is normatively admitted where women are accused of killing their children. the presence of such material as part of a body of evidence that includes highly complex, contested and controversial expert opinion, supports the concerns raised by feminist commentators that portrayals of maternal behaviour may have influenced trial outcomes.[footnoteref:29] thus, in particular miscarriages of justice, not only may overzealous expert opinions and flawed scientific information bolster the prospect of injustice, but interpretations of the feminine also. [18: hunter j, ‘publication review: character evidence in the criminal trial’ (2016) evid & proof 162, 163, in relation to evidence of character as ‘background evidence’.] [19: redmayne m, character in the criminal trial (oup 2015).] [20: hunter (n 17) 166. see her suggestion ‘that a complex evidentiary and advocacy landscape often hid from law reports the full operation of character evidence in practice’.] [21: non-medical evidence may be defined in a number of ways, but is used here to refer to information that is not presented by an expert, nor based on research, whether scientific or medical. in the context of the cases examined in this paper, the information includes maternal behaviour, child care, internet search history, diary entries, and sexual, personal, social and health records and history. the term non-medical is used instead of non-expert in order to avoid confusion, as the latter term is often used to describe evidence purporting to be specialist and its author an expert, but the courts have decided following rigorous scrutiny, that neither the evidence nor the presenter is expert. see ward t, ‘“a new and more rigorous approach” to expert evidence in england and wales’ (2015) 19(4) intl j evid & proof 228; pattenden r, ‘conflicting approaches to psychiatric evidence in criminal trials: england, canada and australia’ (1986) crim l rev 92; pattenden r, ‘the proof rules of pre-verdict judicial fact-finding in criminal trials by jury’ (2009) 125 lqr 79; redmayne (n 18).] [22: mike redmayne also employs the term ‘non-criminal bad character’ (n 18) 77-86.] [23: both past behaviours and behaviours concurrent with the child’s death are admitted; for example whether the mother: commenced immediate resuscitation, called the ambulance, used an apnoea monitor consistently, forgot in which cot a baby died, had an addiction or dependency, or reacted to the death hysterically or over emotionally, or in an ‘attention seeking’ way. other indicators that may be found are mothers who: were inexperienced, had unrealistic expectations of their baby, found it difficult to bond, gave the child to someone else to care for, disliked being home alone, went back to work, felt resentful if their partner was away from home, had had a previous cot death, had a dirty home, was vulnerable, or had been abused as a child.] [24: r v stacey (helen brenda) [2001] ewca crim 2031, 2001 wl 1135255; r v holdsworth (suzanne) [2008] ewca crim 971, 2008 wl 1867253; r v henderson [2010] ewca crim 1269, [2010] 2 cr app r 24.] [25: r v kai-whitewind (chaha'oh niyol) [2005] ewca crim 1092, [2005] 2 cr app r 31; r v folbigg [2003] nswsc 895, r v folbigg [2005] nswcca 23.] [26: r v patel (trupti) (reading crown court, 11 june 2003); lb of islington v al-alas and wray [2012] ewhc 865 (fam); r v khatun (saleha) (central criminal court, 22 december 2009); r v haigh (tara elizabeth [2010] ewca crim 90, 2010 wl 308548 cacd; hainey v hm advocate no 7 [2013] hcjac 47, [2013] slt 525, [2014] jc 33; r v smith (margaret) (newcastle crown court, 10 november 2004); r v underdown (nicky) [2001] ewca crim 1556, 2001 wl 753325; walker (jennifer) v hm advocate [2011] hcjac 51, [2011] slt 1114.] [27: r v harris (lorraine) [2005] ewca crim 1980, [2006] 1 cr app r 5.] [28: underdown (n 25) and walker (n 25). in walker the wrongful conviction was based upon the lack of proper judicial directions on expert evidence and in underdown the defence offered no argument even though expert opinion for the prosecution was significantly flawed. ] [29: wells (n 3); raitt and zeedyk (n 6); cunliffe (n 10).] prima facie, admission of non-medical and non-forensic behaviour information at trial seems sensible. at the law-science interface however, jurors face unenviable decision making responsibilities based on contested, controversial or scant expert opinions. in such situations, behaviour evidence may become more significant as jurors may be tempted to rely on fixed beliefs.[footnoteref:30] if such material is then stereotypically[footnoteref:31] or even prejudicially[footnoteref:32] interpreted, then constructions, assumptions and expectations of the feminine may contribute to unsafe convictions. [30: hunter (n 17) 170. ] [31: stereotype is defined as ‘a widely held but fixed and oversimplified image or idea of a particular type of person or thing e.g. the stereotype of the woman as the carer’: oxford dictionaries http://www.oxforddictionaries.com/definition/english/ (accessed 19 may 2016).] [32: prejudicial is defined as ‘harmful or detrimental to someone or something’: ibid.] in contrast to the exhaustive investigations into the use of expert opinion and scientific evidence in criminal prosecutions,[footnoteref:33] scant attention has been paid in the literature to the impact on criminal proceedings of admitting evidence of maternal behaviour and child care in cases where mothers are accused of killing their children. nor is there robust research demonstrating that past female or maternal behaviours and actions before and around the time a child dies lead to reliable inferences. consequently, it is possible that evidence of maternal behaviour generally discounted as holding merely informal, peripheral or contextual value may be influential when admitted into criminal proceedings and may need to be considered more carefully in relation to its use or even its admissibility. [33: law commission no 325 (n 2) paras. 1.8, 1.17, 1.18, 1.21, 2.16, 3.3, 3.4. ] in order to explore whether and how evidence of maternal behaviour might influence trial outcomes, a comparable situation within the criminal justice system in which information about women’s conduct and personal history is admitted as informal background evidence has been sought. two key topic areas were identified: the first when abused women have killed their husbands,[footnoteref:34] and the second when women are claimants in rape cases.[footnoteref:35] in each area feminist scholarship and judicial commentary indicates that adverse interpretations of female behaviour may occur at trial and may influence outcomes.[footnoteref:36] significantly, rape myth scholars have argued that the use of stereotypical assumptions and/or the device of rape myths to interpret evidence of female behaviour, results in damaging inferences and adverse outcomes in criminal proceedings.[footnoteref:37] for reasons of space only one area can be considered here, although both are considered at length elsewhere.[footnoteref:38] [34: childs m and ellison l (eds) feminist perspectives on evidence (routledge cavendish 2000) 16; r. v. lavallee [1990] 1 scr 852; sanghvi r and nicholson d, ‘battered women and provocation: the implications of r v ahluwalia’ (1993) crim l rev 728; herring j, criminal law (3rd edn, oup 2008) 302; r v ahluwalia [1992] 4 all er 889; r v thornton (no 1) [1992] 1 all er 306; r v thornton (no 2) [1996] 2 all er 1023; r v dhaliwal [2006] ewca crim 1139, [2006] 2 cr app r 24.] [35: childs and ellison, ibid., 11; ellison l and mcglynn c, ‘commentary on r v a (no 2)’ in r hunter, c mcglynn and e rackley (eds) feminist judgments: from theory to practice (hart publishing 2010) 205; easton s, ‘the use of sexual history evidence in rape trials’ in m childs and l ellison (eds) feminist perspectives on evidence (routledge cavendish 2000) 167; r v seaboyer (1991) 83 dlr (4th) 193; r v d [2008] ewca crim 2557, times 26 november 2008; r v h [1997] 1 cr app r 176, 177-178 per sedley j: ‘it has become standard practice for defence lawyers in rape…cases to seek to compel the production of any social services, education, psychiatric, medical or similar records concerning the complainant, in the hope that these will furnish material for cross-examination’. see also concerns raised in m v director of legal aid casework [2014] ewhc 1354 (admin), [2014] acd 124.] [36: for example, madame justice l’heureux-dubé in r v seboyer [1991] 2 scr 577 paras 140-152 and 207: ‘whatever the test, be it one of experience, common sense or logic, it is a decision particularly vulnerable to the application of private beliefs. regardless of the definition used, the content of any relevancy decision will be filled by the particular judge’s experience, common sense and/or logic. for the most part there will be general agreement as to that which is relevant, and the determination will not be problematic. however, there are certain areas of inquiry where experience, common sense and logic are informed by stereotype and myth. as i have made clear, this area of the law has been particularly prone to the utilization of stereotype in determinations of relevance and, again, as was demonstrated earlier, this appears to be the unfortunate concomitant of a society which, to a large measure, holds these beliefs. it would also appear that recognition of the large role that stereotype may play in such determinations has had surprisingly little impact in this area of the law’. and at para 140: ‘of tantamount importance in answering the constitutional questions in this case is a consideration of the prevalence and impact of discriminatory beliefs on trials of sexual offences. these beliefs affect the processing of complaints, the law applied when and if the case proceeds to trial, the trial itself and the ultimate verdict’.] [37: temkin j and krahé b in sexual assault and the justice gap: a question of attitude (hart publishing 2008) 31 theorise that the justice gap identified in sexual offending statistics – i.e. the discrepancy between the rapidly rising number of recorded rapes and the relatively static number of convictions – may be explained by such beliefs. see crown prosecution service, narrowing the justice gap (2014) http://www.cps.gov.uk/publications/prosecution/justicegap.html (accessed 2 june 2016).] [38: orr g, mothering myths, child deaths and the law (routledge forthcoming 2020).] rape myth scholarship (rms) has therefore been explored to learn whether using the rape myth as an analogous device to analyse cases, perhaps by identifying mothering myths, may be helpful where mothers are accused of killing their children. although several cases have been analysed, for reasons of space two key cases are used as illustrations, and the following brief overview shows how foregrounded expert evidence may be interwoven with informal background behaviour evidence. sally clark following the consecutive deaths of sally clark’s first two infants, christopher and harry, suspicions were raised and she was later found guilty of murdering both.[footnoteref:39] her first appeal, dismissed by henry lj,[footnoteref:40] was followed by a second successful appeal granted by kay lj.[footnoteref:41] at trial, the prosecution, using flawed statistical[footnoteref:42] and later discredited medical opinion,[footnoteref:43] had argued that clark had smothered her sons to death. the successful appeal relied on fresh evidence in the form of microbiology test results not disclosed at trial indicating that a cerebro-spinal fluid infection may have been the cause of harry’s death. [39: r v clark (sally) (chester crown court, 9 november 1999).] [40: r v clark (sally) (appeal against conviction) (no 1) 2000 wl 1421196.] [41: clark (no 2) (n 1).] [42: ibid paras 96, 99 per kay lj. at trial expert witness professor meadow was quoted as saying the odds of two infants dying from natural causes in one family were 1 in 73 million and those odds he suggested, were equivalent to placing a bet on a horse at the grand national at odds of 80 to 1 for four consecutive years and winning. ‘yes, you have to multiply 1 in 8,543 times 1 in 8,543 and i think it gives that in the penultimate paragraph’, referring to fleming p, blair p, bacon c, et al., sudden unexpected deaths in infancy: the cesdi sudi studies 1993-1996 (tso 2000) 92 table 3.58, and referred to in clark (no 1) (n 39) para 131 per henry lj.] [43: meadow r, the abc of child abuse (3rd edn., bmj publishing group 1997) 29: ‘one sudden infant death is a tragedy, two is suspicious and three is murder, unless proven otherwise’. this opinion represented as a ‘law’ was based upon the opinion expressed in di maio dj and di maio vjm, forensic pathology (elsevier 1989) 291: ‘it is the authors’ opinion that while a second sids death…is improbable, it is possible and she should be given the benefit of the doubt. a third case, in our opinion, is not possible and is a case of homicide’.] the way clark’s behaviour was portrayed at trial is noteworthy. despite being described positively as a ‘normal, happy, caring mother’,[footnoteref:44] she was also characterised as a woman who resented being left alone and, who ‘tended to drink more heavily when her husband was away’.[footnoteref:45] such representations may have been true, but were also prejudicial to clark’s credibility because of the way in which mothers dependent on alcohol may be judged.[footnoteref:46] at trial and at first appeal clark’s alcohol dependency was given greater evidential weight than in the second appeal judgment. clark indicates that it is not only medical opinions that may bear contrary interpretations at different stages within a child death case, but evidence of maternal behaviour may at first instance and first appeal be perceived as highly relevant but, at a later appeal, may be considered of no probative value. [44: clark (no 1) (n 39) para 17 per henry lj.] [45: ibid para 87.] [46: cave e, the mother of all crimes: human rights, criminalisation and the child born alive (ashgate 2004).] angela cannings the way sally clark’s behaviour was portrayed, and possibly perceived, was echoed in cannings. cannings had four children, three of whom died suddenly in infancy.[footnoteref:47] tried for the murder of two of her children by smothering, the prosecution used circumstantial evidence and medical opinion to argue that cannings had murdered two of her three children. she was convicted, but acquitted two years later because medical opinion suggesting that the rarity of three infant deaths in one family was evidence of murder,[footnoteref:48] was unsafe.[footnoteref:49] in addition to medical opinion the appeal report records information about maternal behaviour and childcare. for example, ‘there was no suggestion of ill-temper, inappropriate behaviour, ill-treatment, let alone violence, at any time with any one of the four children’.[footnoteref:50] her behaviour as a mother was apparently exemplary; cannings was depicted as a ‘woman of good character, described as a loving mother’.[footnoteref:51] health visitors reported that she and her husband had always cared for their children properly,[footnoteref:52] and that cannings had bonded with her daughter jade, who ‘seemed to be a well-cared for and loved baby’.[footnoteref:53] [47: cannings (n 1); and also see donna anthony, convicted of two counts of murder in r v anthony (donna) (bristol crown court, 17 november 1998) by smothering her two babies on the basis of similar medical opinions to those presented in clark and cannings, and acquitted at her second appeal on similar grounds: anthony (no 2) (n 1).] [48: meadow (n 42).] [49: cannings (n 1) para 165 per judge lj.] [50: ibid para 160.] [51: ibid para 4.] [52: ibid para 66.] [53: ibid para 94.] her children had unexplained health difficulties, however, and at trial, prosecution counsel suggested that cannings had smothered one of her sons ‘in an attempt to evoke sympathy’.[footnoteref:54] by suggesting that cannings was mentally ill, prosecution counsel may have sought to reduce her credibility by alluding to the syndrome munchausen syndrome by proxy (msbp)[footnoteref:55] and suggesting that at the very least, cannings had something wrong with her as an attention-seeking mother. once fresh medical opinion was accepted that three sudden infant deaths in one family could occur naturally,[footnoteref:56] prosecution arguments included in the judicial summing up[footnoteref:57] seeking to syndromise or portray cannings as a mentally ill mother, were no longer relevant. [54: ibid para 59. ] [55: munchausen syndrome ‘is a psychological and behavioural condition where someone pretends to be ill or induces symptoms of illness in themselves. it is also sometimes known as factitious disorder. people with the condition intentionally produce or pretend to have physical or psychological symptoms of illness. their main intention is to assume the “sick role” to have people care for them and be the centre of attention. any practical benefit for them in pretending to be sick – for example, claiming incapacity benefit – is not the reason for their behaviour. from the available case studies, there appear to be two relatively distinct groups of people affected by munchausen's syndrome: women aged 20 to 40 years old, who often have a background in healthcare, such as working as a nurse or a medical technician’ see uk nhs website http://www.nhs.uk/conditions/munchausens-syndrome/pages/introduction.aspx (accessed 2 august 2015). msbp is a condition where the person pretends that someone else (typically their child) is ill or induces symptoms of illness in the child.] [56: cannings (n 1) para 148 per judge lj.] [57: ibid para 5.] the two brief case summaries show that both worthy and questionable maternal behaviour may be admitted and such information is unlikely to be ruled inadmissible unless there is a ‘risk of jury irrationality’.[footnoteref:58] overall, the courts’ approach is to place as much relevant, or ‘more or less relevant’[footnoteref:59] information before a jury, and to rely on judicial directions,[footnoteref:60] together with ‘judicial warnings and common sense to ensure that it is properly evaluated’.[footnoteref:61] the admission of informal, extraneous female behaviour evidence has long been a feature of sexual assault and rape prosecutions.[footnoteref:62] the relevance of certain behaviours such as previous sexual history have been strongly challenged by rape myth scholars to the extent that this material may now not be admitted without leave.[footnoteref:63] nevertheless, other types of claimant information may be sought by defence teams such as medical, mental health and social welfare records,[footnoteref:64] archived internet searches[footnoteref:65] and more recently mobile phone content[footnoteref:66] and social media[footnoteref:67] with text and image content.[footnoteref:68] [58: pattenden r, ‘authenticating “things” in english law: principles for adducing tangible evidence in common law jury trials’ (2008) 12 intl j evid & proof, 273, 279] [59: tapper c, cross and tapper on evidence (oup 2010) 65 and explanatory notes at n 686-687.] [60: see e.g. courts and tribunals judiciary, crown court compendium part i: jury and trial management and summing up (judicial college 2016) https://www.judiciary.gov.uk/publications/crown-court-bench-book-directing-thejury-2/ (accessed 1 september 2016).] [61: pattenden r, and ashworth a, ‘reliability, hearsay evidence and the english criminal trial’ [1986] lqr 292, 296.] [62: roberts p and zuckerman a, criminal evidence (2nd edn, oup 2010) 109, 115-125, 581.] [63: youth justice and criminal evidence act 1999, s 4: ‘restriction on evidence or questions about complainant’s sexual history. (1) if at a trial a person is charged with a sexual offence, then, except with the leave of the court—(a) no evidence may be adduced, and (b) no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant’.] [64: but see s 278 of the canadian criminal code (ccc) regulating disclosure of personal records in sexual offence trials. in s 278, a ‘record’ is defined as ‘any form of record that contains personal information for which there is a reasonable expectation of privacy’.] [65: ramage s, ‘case comment: r. v kular (rosdeep adekoya)’ (hcj 25 august 2014) (2014) crim law 2. rosdeep kular was convicted for the culpable homicide of her young son following the identification of internet searches suggesting motive. she had typed into search engines, ‘why am i so aggressive to my son?’, and ‘i find it hard to love my son’. see also brooks l, ‘rosdeep adekoya jailed for 11 years for killing her son mikaeel kular’, the guardian (london, 25 august 2014) http://www.theguardian.com/uk-news/2014/aug/25/rosdeep-adekoya-jailed-11-years-killing-son-mikaeel-kular (accessed 4 november 2014).] [66: owen bowcott, ‘victims’ commissioner sparks row over rape case phone searches’, the guardian (london, 24 july 2019) https://www.theguardian.com/society/2019/jul/24/dame-vera-baird-sparks-row-over-case-police-phone-searches?cmp=share_iosapp_other (accessed 25 july 2019); opinion, ‘my sexual assault case was dropped because i wouldn’t hand over my phone’, the guardian (london, 31 july 2019) https://www.theguardian.com/commentisfree/2019/jul/31/sexual-assault-case-dropped-phone-traumatic?cmp=share_iosapp_other (accessed 31 july 2019). ] [67: o’floinn m and ormerod d, ‘the use of social networking sites in criminal investigations’ (2011) 10 crim lr 766, citing (at n 10) warren g, ‘interactive online services, social networking sites and the protection of children’ (2008) ent l rev 165, referring to evidence ‘such as search, email, messaging, chat, blogs, gaming, discussion forums, voip [voice over internet protocol e.g. skype], photos, music and videos’.] [68: owen bowcott, ‘police demands for access to rape victims’ phones “unlawful”’, the guardian (london, 23 july 2019) https://www.theguardian.com/law/2019/jul/23/police-demands-for-access-to-victims-phones-unlawful (accessed 25 july 2019). ] for women accused of killing the children in their care therefore, any past behaviour information including internet searches, medical and mental health or social welfare reports and counselling records may be freely admissible. such a position echoes that of rape complainants for whom feminist and legal commentary have identified the dangers of a permissive approach to the admission of behaviour evidence, because some female behaviours[footnoteref:69] may be readily misinterpreted as rape myths. [69: for example: dress, demeanour and failure to immediately report the assault. ] the following section will examine how a rape myth has come to be conceptualised in rms and how this concept may be used in understanding what may have been happening in rape trials. rms has studied the admission of evidence of female behaviours and sought to show how the rape myth device works in calling out prejudicial and stereotypical beliefs. by analogy, this paper suggests that in cases of women accused of killing their children, damaging but unfounded inferences may be drawn from maternal behaviour admitted at trial, and proposes that a similar device, the mothering myth, may help in identifying unfounded and prejudicial beliefs about mothers. there are some methodological difficulties to consider. first, the totality of rms cannot be represented here and so only key developments in the search for definition are examined. secondly, the analogy between rape trials and child death cases is complicated by the fact that in rape trials the woman is the complainant and in child death cases she is the defendant; in rape trials the woman has alleged that the defendant should be convicted while in child death cases the mother as defendant seeks to be acquitted. the divergences in adversarial attitude and carceral intention are put to one side in this paper, to focus on how rape myth scholars have approached the issue of defining a rape myth, and how their work might enable us better to analyse child death cases. rape myth scholarship the issues raised by unjust interpretations of female rape complainants’ behaviour are considerable and rms has challenged the relevance of and constructions of behaviour evidence in rape and sexual assault trials relating to sexual history,[footnoteref:70] dress, alcohol and drug use, time of reporting,[footnoteref:71] and more recently, personal records.[footnoteref:72] complainant behaviours have been subject to interpretation using normative expectations about women’s behaviour and the circumstances of alleged rape, in order to reach conclusions on issues of claimant consent and credibility.[footnoteref:73] unjust acquittals have been argued to have occurred because a complainant’s credibility has been unfairly devalued as a result of the admission of information about her conduct, and its adverse interpretation.[footnoteref:74] ellison has suggested that the admission of information about the complainant’s behaviour has been a function of masculine judicial perspectives on questions of relevance,[footnoteref:75] which may ‘at best, risk…the undervaluing of women’s experience and interests’.[footnoteref:76] the consequence is, as temkin and krahé have argued, that unjust acquittals create a justice gap in the cjs generated by rape myths.[footnoteref:77] but, to prove that rape complaint attrition and unjust acquittals in rape trials are due to myths – ‘widely held but false beliefs or ideas’[footnoteref:78] – has been problematical. it is likely that the same may hold true if without more, we were to say that wrongful convictions in child death cases were caused by hidden factors, underlying assumptions, discourses of mothering or even mothering myths. [70: easton (n 34); r v seaboyer (1991) 83 dlr (4th) 193.] [71: r v d [2008] ewca crim 2557, times, 26 november 2008.] [72: h [1997] 1 cr app r 176, 177-178 per sedley j: ‘it has become standard practice for defence lawyers in rape…cases to seek to compel the production of any social services, education, psychiatric, medical or similar records concerning the complainant, in the hope that these will furnish material for cross-examination’. see also concerns raised in m v director of legal aid casework [2014] ewhc 1354 (admin), [2014] acd 124. ] [73: childs and ellison (n 33) 211, 213, 219.] [74: ibid 11, citing (at n 34) adler z, ‘the relevance of sexual history evidence in rape: problems of subjective interpretation’ [1985] crim lr 769; mccolgan a, ‘common law and the relevance of sexual history evidence’ [1996] ojls 275.] [75: ellison and mcglynn (n 34) 205, 206-207, citing (at n 7) kinports k, ‘evidence engendered’ (1991) 2 u illinois l rev 413, 431. ] [76: ibid.] [77: temkin and krahé (n 36) 165, 172-175. ] [78: oxford dictionaries, http://www.oxforddictionaries.com/definition/english/myth (accessed 19 may 2016).] issues in definition, linkage and functionality of ideas about rape. the definitional difficulties encountered in rms have been considerable; they include determining functionality,[footnoteref:79] achieving agreement on who believes rape myths[footnoteref:80] and how many people accept them; whether they function as feared, i.e. leading to adverse decision making; and if they even exist.[footnoteref:81] burt first coined the term rape myths to describe ‘prejudicial, stereotyped, or false beliefs about rape, rape victims and rapists’.[footnoteref:82] these beliefs included: ‘“only bad girls get raped”; “any healthy woman can resist a rapist if she really wants to”; “women ask for it”; “women ‘cry rape’ only when they've been jilted or have something to cover up”; “rapists are sex-starved, insane, or both”’.[footnoteref:83] burt identified that such beliefs were linked to beliefs justifying sexual violence.[footnoteref:84] in seeking to define rape myths, burt conducted a regression analysis of interview data to question whether ‘settled ways of thinking or feeling’ about rape or rape attitudes, were ‘strongly connected to other deeply held and pervasive viewpoints such as sex role stereotyping, distrust of the opposite sex (adversarial sexual beliefs), and acceptance of interpersonal violence’.[footnoteref:85] burt’s pioneering work in developing rape myth acceptance (rma) scales demonstrated the broad extent to which such beliefs were held and that they fulfilled cultural functions by endorsing other gendered ideas. [79: burt mr, ‘cultural myths and supports of rape’ (1980) 38 j pers soc psychol 217; burt mr, ‘rape myths and acquaintance rape’ in a parrot and l bechhofer (eds) acquaintance rape: the hidden crime (wiley 1991); costin f, ‘beliefs about rape and women’s social roles’ (1985) 14 arch sex behav 319; lonsway ka and fitzgerald lf, ‘rape myths: in review’ (1994) 18 psychol women 133; gerger h, kley h, bohner g and siebler f, ‘the acceptance of modern myths about sexual aggression scale: development and validations in german and english’ (2007) 33 aggressive behav 422.] [80: gerger et al., ibid.] [81: reece h, ‘rape myths: is elite opinion right and popular opinion wrong?’ (2013) 33(3) ojls 445.] [82: burt ‘cultural myths’ (n 78).] [83: ibid.] [84: see in particular lonsway and fitzgerald (n 78); gerger et al. (n 78); for example: ‘women often make up rape accusations as a way of getting back at men’; ‘women cry rape only when they’ve been jilted or have something to cover up’; ‘a woman who initiates a sexual encounter will probably have sex with anybody’; ‘a woman shouldn't give in sexually to a man too easily or he'll think she's loose’; ‘men have a biologically stronger sex drive than women’; ‘a woman who goes to the home or apartment of a man on their first date implies that she is willing to have sex’; ‘it isn’t a rape unless he has a weapon’; ‘one reason that women falsely report a rape is that they frequently have a need to call attention to themselves’; ‘women often provoke rape through their appearance or behaviour’; ‘men often can’t control their sexual urges’.] [85: burt, ‘cultural myths’ (n 78) 229.] building on burt’s foundational work, lonsway and fitzgerald reviewed the literature and also found difficulty in clearly defining rape myths, because of belief interconnections and unexpected functionality for those making decisions in criminal trials.[footnoteref:86] rma they found, had at its core gender, traditional sex role attitudes, negative attitudes towards women, and a likelihood of raping.[footnoteref:87] they concluded, that ‘such a configuration conveys a powerful message about how rma relates to other beliefs about women in our society’.[footnoteref:88] lonsway and fitzgerald proposed that rape myths could be characterised as ‘false or apocryphal beliefs that are widely held’; they explain some important cultural phenomenon; and they serve to justify existing cultural arrangements’.[footnoteref:89] nevertheless, because of the identification of the interrelatedness with sexist attitudes, defining a rape myth was difficult because of the ‘lack of any comprehensive articulation of the domain of rape myths’.[footnoteref:90] questionnaire scales seeking to measure rma were, lonsway and fitzgerald suggested, unreliable because different studies had used different scales of questions to identify acceptance (or not) of particular beliefs.[footnoteref:91] lonsway and fitzgerald sought to take into account the arguments for interconnectedness and functionality, proposing that ‘rape myths are attitudes and beliefs that are generally false but are widely and persistently held, and that serve to deny and justify male sexual aggression against women’.[footnoteref:92] their findings echo burt’s in that rape myths could be expressed as rape supportive beliefs.[footnoteref:93] [86: lonsway and fitzgerald (n 78) 134, 156, 158.] [87: ibid 134, 156, 158.] [88: ibid 155.] [89: ibid 134.] [90: ibid 156.] [91: ibid 155-158.] [92: ibid 134.] [93: ibid. lonsway and fitzgerald also suggested that rape myths were ‘best conceptualised as stereotypes’ and not as myths.] gerger et al. drew on the insights of previous studies in a later review of rma literature seeking to define beliefs as rape myths and to measure rma.[footnoteref:94] despite agreement with the general usefulness of an rma measurement or construct, this study concurred with lonsway and fitzgerald that most scales produced skewed results as a result of methodological approaches.[footnoteref:95] gerger et al. developed a new questionnaire they denoted the acceptance of modern myths about sexual aggression scale (ammsa).[footnoteref:96] the reasoning behind the creation of ammsa was to take account of more recent research for example by swim et al. into modern sexism and racism,[footnoteref:97] which argued for a greater degree of subtlety about scale question content areas.[footnoteref:98] this they suggested was because of widespread and institutional denials that discrimination against women, their needs and demands still occurred.[footnoteref:99] gerger et al. concluded that the ammsa scale incorporating more nuanced versions or modern myths, was found to be both reliable and consistent.[footnoteref:100] but they noted that their own studies were also limited by sampling methodologies.[footnoteref:101] [94: gerger et al. (n 78) 423. ] [95: ibid 424.] [96: ibid.] [97: ibid 424-425, citing swim jk, aikin kj, hall ws and hunter ba, ‘sexism and racism: oldfashioned and modern prejudice’ (1995) 68 j pers soc psychol 199.] [98: ibid.] [99: ibid. ‘whereas ‘‘old-fashioned’’ sexism was characterized by the endorsement of traditional gender roles, discriminating treatment of women, and stereotypes about lesser female competence, swim and her colleagues suggested that modern sexism, like modern racism, was characterized by the denial of continued discrimination, antagonism toward women’s demands, and a lack of support for policies designed to help women’. it is of course also debateable whether in 2020, modern sexism and racism are now not more overt than they were in the 1990s. ] [100: gerger et al. (n 78) 434.] [101: ibid 436.] when rape myth functionality was explored by gerger et al., they concurred with burt’s work on cultural functionality[footnoteref:102] that rma may have meaning for both women as well as men, whereby rma ‘allows women to reduce their subjective vulnerability to sexual assault and protect their self-esteem’.[footnoteref:103] so, some women believe that if they do not dress revealingly in public and do not go out alone late at night they will not be assaulted. that of course is a false belief, but functionally the belief serves a purpose in (wrongly) allaying female fears[footnoteref:104] and providing a platform for some to judge others, and is therefore a rape myth. [102: burt, ‘cultural myths’ (n 78) 229.] [103: gerger et al. (n 78) 423-424.] [104: see, e.g., ‘i was raped as a student and i’m not the only one’ (bbc news, 6 march 2018) https://www.bbc.co.uk/news/stories-43258170 (accessed 25 july 2019). hannah price said of her sexual assault experience, that ‘i don't remember being taught about consent at school, other than “no means no”. what i do remember is being told not to walk home on my own, or i’d risk being raped by a stranger in a dark alley. but when i was raped it was not in the street, but in my own student house, and i had taken the precaution of being walked home by someone i knew’.] controversially however, arguments for the existence of rape myths have been considered to be overstated[footnoteref:105] as an explanation for the ‘justice gap’ in rape cases.[footnoteref:106] reece in particular criticised gerger et al.’s work by arguing that ‘some attitudes are not myths…not all the myths are about rape and there is little evidence that the rape myths are widespread’.[footnoteref:107] her paper and later public lecture questioning the existence and nature of rape myths and how they are identified and measured prompted heated debate.[footnoteref:108] i cannot do justice here either to reece or her critics. my point is that the progress of rms in seeking to demonstrate that particular beliefs are myths is not straightforward. rma or ammsa may be demonstrable to some extent but beliefs may change in content, become more nuanced, be connected with other gendered ideas and be functional for some, and true for others.[footnoteref:109] [105: reece (n 80) 446.] [106: temkin and krahé (n 36).] [107: reece (n 80) 446.] [108: see, e.g., editorial, ‘a response to the lse event “is rape different?”’ (2013) 3(2) feminists@law, responding to lse debating law inaugural event, ‘is rape different?’ (30 october 2013); reece h, ‘debating rape myths’ (2014) lse law, society and economy working paper series 21/2014, at http://eprints.lse.ac.uk/60566/?from_serp=1 (accessed 13 september 2018).] [109: gerger et al. (n 78) 424.] it is also possible that the difficulties encountered are caused by the language we use to define the beliefs that many find so wrong and that the word myth itself creates problems. rms has more recently adopted the word attitude, ‘a settled way of thinking or feeling about something’,[footnoteref:110] as in: ‘rape supportive attitudes’.[footnoteref:111] the word is acquiring greater purchase perhaps because it is less hostile than the word myth can be. indeed burt suggested rape supportive attitudes were connected to other gendered and questionable attitudes,[footnoteref:112] as did lonsway and fitzgerald.[footnoteref:113] temkin and krahé suggest the issues of the justice gap relate to a ‘question of attitude’,[footnoteref:114] and gerger et al. also measured attitudes towards rape using the ammsa scale, and found positive correlations with ‘pervasive cultural attitudes related to gender and violence as well as sexual harassment’.[footnoteref:115] reece too echoes burt that rape myths are rape supportive attitudes,[footnoteref:116] but again she questions whether ‘public attitudes … deserve to be described as “rape supportive attitudes”, or warrant the label of “rape myths”’.[footnoteref:117] for reece, rms indicates that rape supportive attitudes may not be widespread, so therefore they are not myths. in addition, some attitudes are not proven to be false so again, they are not myths, and some ‘rape supportive attitudes’ are not about rape. reece therefore suggests the possibility that scholars are creating myths about myths,[footnoteref:118] and further that gerger et al.’s work was about ‘designing a scale to catch people (out)’,[footnoteref:119] and to show how awful people’s attitudes are.[footnoteref:120] [110: oxford dictionaries http://www.oxforddictionaries.com/definition/english/attitude (accessed 19 may 2016).] [111: reece (n 80) 446.] [112: burt, ‘cultural myths’ (n 78) 229.] [113: lonsway and fitzgerald (n 78).] [114: temkin and krahé (n 36).] [115: gerger et al. (n 78) 428, 435.] [116: reece (n 80) 446.] [117: ibid 453.] [118: ibid 446.] [119: ibid 454-455.] [120: ibid. however, this criticism seems unbalanced in failing to recognise that the accurate identification of so-called rma or rape supportive attitudes, has a great deal to do with statistical analysis, study design and sampling methodology. in order to understand what is the nature and prevalence of rape supportive attitudes, it is vital to unpick the results and methodology of studies that demonstrate only politically supportive results. ] conaghan and russell have strongly defended the work of gerger et al., critiquing the arguments put forward by reece and asserting that the aamsa is ‘regarded as the most advanced measure of rape myth acceptance to date’.[footnoteref:121] far from seeking to ‘catch people (out)’[footnoteref:122] gerger et al. sought to demonstrate that prejudicial views were just more subtly held than previous rma scales had identified, and that some beliefs about rape were simply ‘immune against empirical falsification’.[footnoteref:123] for example, ‘many women secretly desire to be raped’[footnoteref:124] cannot be proved or disproved and therefore showing that such a belief is a myth, is difficult if not impossible.[footnoteref:125] gerger et al. had suggested that rape myths should not be defined in terms of being false, but ‘“wrong” in an ethical sense’,[footnoteref:126] acknowledging the possibility that some rape myths may be true for some people. but, even if ‘the factual configurations comprising rape myths may on occasion be true’ as conaghan and russell accept,[footnoteref:127] rms has become more concerned with addressing ideas ‘treated as generalizable truths which function normatively to shape perceptions and inform judgment’.[footnoteref:128] [121: conaghan j and russell y, ‘rape myths, law, and feminist research: “myths about myths”?’ (2014) 22 fem leg studs 24, 35.] [122: reece (n 80) 454-455.] [123: gerger et al. (n 78) 423.] [124: ibid, citing lonsway and fitzgerald (n 78).] [125: gerger et al, ibid.] [126: ibid.] [127: conaghan and russell (n 120) 26.] [128: ibid 34.] consequently, what rms shows us is that there are challenges in defining beliefs about female behaviours in relation to sexual assault and rape as myths. using either rma or ammsa is methodologically problematic. it is difficult to say or reveal exactly which beliefs these refer to, to prove how widespread they are, to differentiate them from other beliefs, and to unpick them from other beliefs to which they are connected. they are difficult to falsify, some beliefs that scholars designate as myths may be true for some people[footnoteref:129] which is both problematic and provocative, and some beliefs are held covertly.[footnoteref:130] considerable difficulties therefore exist in defining rape myths, and distinguishing between beliefs, stereotypes and attitudes. the word ‘myth’ may function in this context by signalling that particular attitudes are questionable, if not ethically wrong, but using the term ‘myth’ may be counter-productive because of the problems in proving that such attitudes are false. further, if a belief’s status as myth depended on the number of people who held it, then if that number reduced it would no longer be definable as a myth, irrespective of its perceived problematic content.[footnoteref:131] including extent of acceptance within our understanding therefore, does not add to conceptual clarity and may even not be necessary, with scholars suggesting that ‘prevalence and consistency of rape myths…seem to be better treated as empirical problems, rather than matters of definition’.[footnoteref:132] the force of rape myth arguments is therefore bound up with difficulties of language. what is more, lonsway and fitzgerald consider that rape myths are best conceptualised as stereotypes,[footnoteref:133] and conaghan and russell suggest that the term rape supportive attitudes, is interchangeable with myths.[footnoteref:134] [129: gurnham d, (2015) ‘a critique of carceral feminist arguments on rape myths and sexual scripts’ (2016) 19 new crim l rev 141.] [130: gerger et al (n 78); or indeed might they be less so in 2019-20? ] [131: ibid. the belief might even become so widespread that it may be accepted as a norm.] [132: ibid.] [133: lonsway and fitzgerald (n 78) 134.] [134: conaghan and russell (n 120) 43: ‘it is vital to situate a discussion of rape-supportive attitudes, or myths, within the broader historical context’.] language and normativity it is i suggest conaghan and russell’s focus on or ‘turn to attitudes’[footnoteref:135] which may be most helpful. to cut through the difficulties, rms language is moving towards words such as ‘norms’ about behaviour and the suggestion that a key issue in understanding rape myths is not whether they are true or false, but whether they are ‘normatively infused’.[footnoteref:136] how this necessary but troubling discussion of the rms debate might help us in analysing child death cases is through appreciating that we need to be concerned with our approach to language and normativity and in order to move forward, should consider consolidating the language used. significantly, gerger et al. recognised that beliefs about women were ‘prescriptive in nature’,[footnoteref:137] and it is this aspect that is central not only to the content of a modern rape myth as we now perceive it, but to the way in which we can define beliefs about mothers and the characterisation perhaps of a modern mothering myth. [135: ibid 26.] [136: ibid 39.] [137: ibid.] gerger et al. finally proposed that ‘rape myths are descriptive or prescriptive beliefs about rape (i.e., about its causes, context, consequences, perpetrators, victims, and their interaction) that serve to deny, downplay or justify sexual violence that men commit against women’.[footnoteref:138] by characterising rape myths in this way, the focus is on the consequences of the belief, which takes the heat out of all the problematical difficulties of whether the beliefs are true or false or widespread, etc. what this may then mean for mothers accused of killing their children is that the language we use matters, and the difficulties faced by rms are best avoided. [138: ibid.] if we wished to suggest that perhaps myths, expectations, assumptions, or even ideologies of mothering were implicated in contributing to wrongful convictions, then first we would need to define all the beliefs about mothering, determine their prevalence, and reveal their functionality, interconnectedness and whether they were held covertly. we would need to establish empirically that some beliefs are simply false and although that may be possible for particular beliefs about maternal behaviour, for example, that mothers should always stay at home and look after their children themselves until school age, they may be true for some people. what i suggest we can use in the meanwhile as a device to analyse child death cases is the definition of a rape myth as proposed by gerger et al. applied to mothering, to produce the modern mothering myth. a proposed definition of a modern mothering stereotype or myth (mmm), is accordingly: a fixed belief about mothering or normative behaviour for mothers, which serves to support or justify adverse decisions about mothers within the criminal justice system. the following section considers maternal behaviours identified in child death cases,[footnoteref:139] and tests the definition as a device, to assess whether it helps us analyse if maternal behaviours admitted as evidence may have been probative, or myths. [139: such as alcohol dependency, mental ill-health, attention seeking behaviour, emotional responses that appear unusual or excessive, omitting to resuscitate or call for help, or not using an apnoea alarm as instructed or expected.] applying the modern mothering myth is alcohol abuse probative or a mothering myth? drinking alcohol has long been regarded as harmful especially if carried out during pregnancy.[footnoteref:140] health promotion programmes and research studies by public organisations such as the royal college of paediatricians and child health (rcpch),[footnoteref:141] have sought to publicise the dangers and disseminate normative understanding that maternal alcohol dependency harms children. drinking excess alcohol in pregnancy may harm the unborn child, ‘resulting in “foetal alcohol syndrome”, (fas) and “foetal alcohol effects (fae)”’, characterised by growth retardation and central nervous system impairment.[footnoteref:142] the combination of alcohol and certain cardiac arrhythmias such as long qt syndrome (lqts) may also be fatal in infants and adults because ‘alcohol abuse is associated with an increased incidence of cardiac arrhythmias’.[footnoteref:143] clark[footnoteref:144] had an alcohol dependency for which she had received treatment prior to her pregnancies.[footnoteref:145] however the facts of whether she drank in pregnancy or as a mother are not known, but were inferred by the prosecution. but for her previous dependency, there is little doubt that her defence could have argued that she was unquestionably a person of good character as evidenced by her health visitor,[footnoteref:146] gp[footnoteref:147] and nanny.[footnoteref:148] [140: cave (n 45) 5, and citing at n 13, department of health, smoking kills, a white paper on tobacco (cmnd. 4177 department of health 1998).] [141: wolfe i, macfarlane a, donkin a, et al., why children die: death in infants, children and young people in the uk part a (a report for the british association for child and adolescent public health, rcpch and national children’s bureau 2014).] [142: cave (n 45) 5, citing jones kl, smith dw, et al., ‘patterns of malformation in offspring of chronic alcoholic mothers’ (1973) 1(7815) lancet 1267. ] [143: colling rt and gallagher pj, ‘the pathology of unexplained cardiac deaths’ in money-kyrle r, macleod s, and money-kyrle a, ‘sad cases in the coroners’ courts’ (report of a conference at the university of oxford, the foundation for law, justice and society 10 january 2013) 9 and see clark (no 2) (n 1). long qt syndrome is a group of inherited cardiac arrhythmias that are diagnosed using an ecg, and are characterised by the abnormal duration and shape of the qt interval. such defects, place the subject at risk of ventricular tachycardia and heart failure. ] [144: clark (no 1) (n 39) para 87(5) per henry lj.] [145: batt j, stolen innocence (ebury press 2005) 131 written by a member of clark’s defence team.] [146: clark (no 1) (n 39) paras 34, 43, 65, 69 per henry lj.] [147: ibid paras 35, 36.] [148: ibid paras 43, 64, 69.] as reported in the first appeal against conviction, clark’s health visitor had observed a close attachment to and bond between clark and her first ‘responsive’ baby christopher.[footnoteref:149] clark attended a mother and baby group ‘where she appeared as a normal, happy, caring mother’,[footnoteref:150] her babies ‘were well cared for, loved by their parents and happy and content’[footnoteref:151] and she was reported as a ‘loving, caring mother’.[footnoteref:152] she is reported as welcoming visits from health visitors as part of the coni programme,[footnoteref:153] indicating she was a responsible mother of a next infant. prior to the deaths of her children, health professionals praised her as exemplifying the ideal of the good mother, by her caring, nurturing and compliant behaviour. [149: ibid para 34.] [150: ibid para 17.] [151: ibid.] [152: ibid para 43.] [153: ibid; cannings (n 1) para 74 per judge lj, referring to the work of the foundation for the study of infant deaths (fsid). ] in contrast to clark’s behaviour as a mother that satisfied normative expectations of mothering, counsel for the prosecution told the court that on the day of her second son harry’s death, she ‘visited the off-licence on two occasions to buy some wine saying (falsely, it would appear) that they were having a dinner party that evening’.[footnoteref:154] the implications of such a fact may have raised concerns in jurors’ minds (although the cps could not use the fact of clark’s alcohol dependency in argument due to a pre-trial ruling) and beliefs in the wrongness of maternal alcohol dependency may have served to support if not justify a guilty verdict. such views were amply reinforced by media portrayals following the trial when harrison j reversed his pre-trial ruling. the bbc described clark as a ‘35-year-old lawyer who drank through both her pregnancies… a lonely drunk… a depressed alcoholic’[footnoteref:155] who had received hospital treatment for ‘bouts of severe binge drinking’,[footnoteref:156] and she was even described by the lawyer, as ‘driven by drink and despair, the solicitor who killed her babies’.[footnoteref:157] [154: clark (no 1) (n 39) para 87(5) per henry lj.] [155: ‘baby killer was “lonely drunk”’, bbc news (london, 9 november 1999) http://news.bbc.co.uk/1/hi/uk/512099.stm (accessed 9 april 2015).] [156: ibid.] [157: the editor, ‘mother’s ruin’, the lawyer (2 february 2002) http://www.thelawyer.com/mother039s-ruin/100860.article (accessed 22 october 2013).] clark’s alcohol dependency was suggested at trial, confirmed after conviction, and affirmed in her first appeal where it was reported that she ‘tended to drink more heavily when her husband was away’.[footnoteref:158] a belief on the part of both jurors and judiciary that a mother may have abused her child is understandable if she purchases alcohol covertly on the day her second son dies suddenly and unexpectedly and she has received treatment for alcohol dependency in the past. however, holding such a belief in a fixed way within criminal proceedings to support a finding of guilt is at least questionable. the judgment in her second (successful) appeal did not mention alcohol at all in acquitting clark.[footnoteref:159] her dependence on alcohol and her possible consumption on the day her second child died, therefore did not justify either a belief or a decision that she was guilty of murder, nor her continued imprisonment. [158: clark (no 1) (n 39) para 87(5) per henry lj.] [159: clark (no 2) (n 1).] the reasons for using clark’s alcohol dependency as part of legal argument in criminal proceedings, although understandable, may reasonably be expected to be linked with fixed views about the harm that alcohol may cause to children both in pregnancy and when caring for a small child. as ann oakley reflected, ‘of all the things women are supposed to be, mothers come first’.[footnoteref:160] helena kennedy suggests that society expects women ‘to embody nurturance and protectiveness associated with mothering’,[footnoteref:161] and consequently when women are accused of harming their child, kennedy suggests there is a ‘heightened outrage’.[footnoteref:162] not only may such a mother be perceived as selfish, contravening expectations that she should forego self-centred behaviour in favour of altruism, such beliefs may induce prejudicial perceptions of the maternal behaviour. [160: oakley a, subject women (fontana 1981) 85.] [161: kennedy h, eve was framed: women and british justice (vintage 1992) 25.] [162: ibid.] that alcohol dependency is not problematic for any person including mothers, is not my position. but, i wish to suggest that raising the fact of clark’s past alcohol dependency at trial and at first appeal, without evidence of her having drunk excess alcohol immediately prior to the children’s deaths, risked providing the jury with a behavioural cue and engaging a fixed belief (a mmm), that justified the view that a mother with a previous alcohol dependency was guilty of murder. are emotional over-reactions probative or mothering myths? the consequences of trauma whether through physical violence[footnoteref:163] or sexual assault[footnoteref:164] can result in significant ‘emotional disorganisation’[footnoteref:165] that may affect the behaviour of otherwise rational women. how such emotions including ‘fear, shock, disbelief, anger, self-blame and embarrassment’[footnoteref:166] may be expressed varies according to the individual. but such expressions may diverge from expected norms, and be perceived as bizarre or unexpected and interpreted according to prescriptive beliefs such as rape myths[footnoteref:167] for example, that have not allowed for the impact of trauma on behaviour.[footnoteref:168] similarly in child death cases, the appeal reports provide evidence of mothers’ behaviour on the days their children died, and the following discussion identifies that this behaviour may have been interpreted according to fixed beliefs about how traumatically bereaved mothers should behave, leading to adverse trial outcomes. [163: for example, battered women syndrome (bws). section 52(1) of the coroners and justice act 2009 defines the defence of diminished responsibility as available where the defendant was suffering from an ‘abnormality of mental functioning’, which arose from a ‘recognised medical condition’, ‘substantially impaired d’s ability’ to understand the nature of her conduct, form a rational judgment, or exercise self-control, and ‘provides an explanation’ for d's ‘doing or being a party to the killing’.] [164: rape trauma syndrome (rts); see burgess aw and holmstrom ll, rape—crisis and recovery (brady 1979) 35.] [165: ellison l, ‘closing the credibility gap: the prosecutorial use of expert witness testimony in sexual assault cases’ (2005) 9 evid & proof 239, 251.] [166: ibid.] [167: rumney pns, ‘false allegations of rape’ [2006] cambridge l j 128; ellison l and munro ve, ‘reacting to rape: exploring mock jurors’ assessments of complainant credibility’ (2009) 49(2) br j criminol 202.] [168: rumney, ibid 135-6, 141; temkin j, ‘reporting rape in london: a qualitative study’ (1999) 38 how j crim just 17, 23, 27; temkin, j, ‘plus ça change: reporting rape in the 1990s’ (1997) 37 br j criminol 507, 516.] clark was on her own at home when she noticed that her son christopher aged nearly three months was ‘a “dusty grey colour”[footnoteref:169] and she knew something was wrong. she picked him up and dialled 999’[footnoteref:170] and asked for an ambulance. there is no mention of whether she tried to resuscitate the baby. when the ambulance arrived only two minutes later according to the appeal report[footnoteref:171] the house was locked on the inside with clark unable to find the keys. paramedics entered the house after a ‘neighbour arrived with the spare keys’,[footnoteref:172] to find clark holding the baby who was already ‘pale, cyanosed, cold and quite rigid’.[footnoteref:173] clark’s behaviour is described at home, in the ambulance and at hospital; the ambulance driver stated clark was ‘very distressed, crying and screaming’,[footnoteref:174] she was ‘on the verge of hysteria’[footnoteref:175] and was so distressed the paramedic could not put the child on the resuscitator.[footnoteref:176] on being told that christopher was dead, clark’s ‘reaction was described by a hospital doctor as very dramatic and hysterical’.[footnoteref:177] further, the doctor branded the behaviour as ‘atypical and the over-reaction made her feel quite uncomfortable’.[footnoteref:178] in addition, a staff nurse stated that clark had ‘said that her husband would blame her and would not love her any more’.[footnoteref:179] the evidence provided by professional witnesses suggests doubts that clark’s grief was normal, indicating concern that clark may have harmed christopher. [169: clark (no 1) (n 39) para 36 per henry lj.] [170: ibid.] [171: ibid para 18.] [172: ibid para 37.] [173: ibid para 18.] [174: ibid.] [175: ibid.] [176: ibid.] [177: ibid para 19.] [178: ibid.] [179: ibid.] misgivings may have further increased because of discrepancies between clark’s accounts to ambulance personnel and doctors concerning christopher’s whereabouts when he died.[footnoteref:180] clark stated that he was in a moses basket to ambulance crews,[footnoteref:181] but in a bouncy chair to paediatricians.[footnoteref:182] when the police visited the home at 02.00 am on the night of the baby’s death they questioned the parents and removed both pieces of baby equipment,[footnoteref:183] having already noted on the coroner’s form that christopher had been found in a bouncy chair.[footnoteref:184] clark failed to later challenge that discrepancy, and the first appeal report states, ‘the fact that the appellant gave inconsistent accounts of where she found christopher adds to its significance rather than detracting from it’,[footnoteref:185] as she was unable to remember whether the child died in a bouncy chair or the moses basket.[footnoteref:186] [180: ibid.] [181: ibid.] [182: ibid para 20.] [183: batt (n 144) 32.] [184: clark (no 1) (n 39) para 20 per henry lj.] [185: ibid paras 89(1), 257.] [186: ibid para 240.] it is difficult to tell whether not remembering which place the child was in when discovered lifeless was probative, as the prosecution suggested or, whether clark’s memory may have been impaired by the shock of christopher’s death. ellison suggests that the impact of trauma in sexual assault cases may have a significant effect on memory. ‘significantly, research suggests that the normal variability of memory can be exacerbated by the impact of trauma, such as that experienced by victims of sexual assault’.[footnoteref:187] it is therefore possible that the risk that clark may have suffered post-traumatic stress disorder (ptsd) as a result of the death of her child, resulting in impaired memory, may have been overlooked by both the defence and judicial summing up. such a shocking moment of discovery is unlikely to be forgotten. but the view that detailed memories are accurate and can be recalled indicates that evidence of clark’s faulty memory may have been interpreted in accordance with a fixed belief that all mothers should remember the factual circumstances of a child’s death. any inconsistencies therefore would lead to support for an adverse conclusion.[footnoteref:188] [187: ellison ‘closing the credibility gap’ (n 164) 243 citing at n 28 petrak j and hedge b, the trauma of sexual assault: treatment, prevention and practice (wiley 2002).] [188: ellison, ibid citing at n 19 brewer n, potter r, fisher r, et al., ‘beliefs and data on the relationship between consistency and accuracy of eyewitness testimony’ (1999) 13 appl cognitive psych 297, 310: ‘the influence of testimonial inconsistencies on juror judgments has, however, been specifically examined in several mock-juror studies. this research indicates that highlighting or eliciting inconsistencies in a witness's statements is likely to be an extremely effective means of discrediting the witness’.] clark’s second child harry also suddenly stopped breathing in the evening; she called the ambulance whilst her husband commenced resuscitation.[footnoteref:189] again the first appeal court judgment records professional witness evidence about clark’s behaviour. paramedics said when they arrived, clark was ‘running up and down the street outside the house, barefoot, in pyjamas and very distressed’;[footnoteref:190] and that she had behaved in a ‘“very dramatic and almost hysterical”’[footnoteref:191] manner, described as ‘“such an over-reaction”’.[footnoteref:192] to compound the concerns about clark at the time of harry’s death, she could not accurately recall to police in interviews at home the time that her husband had returned home on the night the second baby died, as she said she had confused the night the second child died with the night the first had died.[footnoteref:193] in addition, a few days later the coroner[footnoteref:194] said that clark had stated ‘she and her husband would try for another baby’.[footnoteref:195] mrs hurst said she felt that comment ‘most unusual’,[footnoteref:196] and realised then that clark had lost two babies. this observation led her to contact a senior police inspector and request a home office pathologist to conduct the post-mortem on the second baby harry.[footnoteref:197] [189: clark (no 1) (n 39) para 3 per henry lj.] [190: ibid para 44.] [191: ibid para 258.] [192: ibid.] [193: ibid paras 65, 66.] [194: ibid paras 46, 67, 270.] [195: ibid para 270.] [196: ibid.] [197: ibid para 46.] clark’s behaviour and comments were therefore appraised by professionals and an adverse interpretation was made that her behaviour was not normal. whether clark’s comments support an adverse interpretation is uncertain. newly bereaved mothers must surely behave as individuals and not according to preconceived essentialised normative understandings. nevertheless, a coroner is likely to have witnessed many bereaved parents and possibly sufficient to form a view that clark’s behaviour was aberrant. but such interpretations about behaviour based upon experience are not the same i suggest, as objective large scale research studies on bereavement behaviour, which are notably lacking in this area.[footnoteref:198] [198: brabin p, ‘editorial: understanding and managing grief after perinatal loss’ (2014) (4) grief matters 31; wilson t, ‘perinatal loss: application of loss and grief theories’ (2014) (4) grief matters 32; den hartog on, ‘supporting parents following perinatal death’ (2104) (4) grief matters 58; clark a, ‘working with grieving adults’ (2004) 10 advances in psych treatment 164.] the points identified in this section about clark’s behaviour are taken from henry lj’s judgment dismissing her first appeal. whereas clark’s hysteria and distress is mentioned twenty times by henry lj in his legal reasoning, in kay lj’s judgment of the second successful appeal,[footnoteref:199] each word is mentioned only once. it is possible that henry lj was persuaded that clark’s behaviour around the time of her sons’ deaths was so abnormal it supported if not justified upholding her conviction and dismissing her appeal. however, in the judgement of her second appeal such factors were barely mentioned. one cannot know the extent to which any member of the court may have believed that the evidence of clark’s overwhelming distress, confusion and inappropriate comments justified a guilty verdict. but it is clear that in kay lj’s judgment, such factors were of no relevance or weight. accordingly, there is a question whether professionals’ fixed beliefs about normal behaviour of mothers confronted with a dying child supported if not justified a guilty verdict, without expert evidence from a psychiatrist to support such perceptions, and there is also a question as to why defence counsel failed to adequately challenge what may have been mothering myths. [199: clark (no 2) (n 1) para 103 per kay lj.] how a mother should behave following the death of a child may be impossible to state without oversimplification. however as judge lj suggested in cannings,[footnoteref:200] if a fixed and over-simplified view is held that ‘lightning does not strike three times in the same place’[footnoteref:201] then however a mother behaved, ‘might be thought to confirm the conclusion that lightning could not indeed have struck three times’.[footnoteref:202] if the children’s deaths were natural then ‘virtually anything done by the mother on discovering such shattering and repeated disasters would be readily understandable as personal manifestations of profound natural shock and grief’.[footnoteref:203] judge lj suggests that maternal behaviour in cannings was therefore adversely interpreted within the context of and as a result of flawed expert evidence,[footnoteref:204] and the same could be said of clark.[footnoteref:205] the judicial comments indicate that prejudicial interpretations of maternal behaviour may be very persuasive, especially where expert evidence on the interpretation of pathology findings such as ‘petechial or pinpoint haemorrhages’,[footnoteref:206] and ‘intra-retinal haemorrhaging’[footnoteref:207] are complex and unfamiliar. [200: cannings (n 1). ] [201: ibid para 11 per judge lj.] [202: ibid.] [203: ibid.] [204: meadow (n 42).] [205: clark (no 1) (n 39) para 171 per henry lj citing professor meadow saying ‘you have to say two unlikely things have happened, and together it is very, very, very unlikely’.] [206: clark (no 2) (n 1) para 69 per kay lj.] [207: ibid. ] in cannings also there is little evidence that the normative interpretation of maternal behaviour was robustly challenged by her defence.[footnoteref:208] the appeal judgment records that evidence of cannings’ behaviour and emotional reactions when her young children experienced apparent or acute life threatening events (alte) was submitted in great detail,[footnoteref:209] together with evidence of her use of the apnoea alarm,[footnoteref:210] and who she called when she realised a child was in danger.[footnoteref:211] [208: cannings (n 1) para 14 per judge lj: ‘mrs cannings’s defence was simple: she had done nothing to harm any of her children. although she was contending that the deaths were natural, notwithstanding specialist evidence called on her behalf at trial, she could not explain them, and she was not seeking to offer an explanation of her own. and, unusually, she was doing so in the very special context that medical specialists, both domestically and internationally, continue to acknowledge that the death of an infant or infants at home can simultaneously be natural and unexplained, even by them’.] [209: ibid paras 51, 58, 65, 76, 102, 108, 112.] [210: ibid paras 47, 52, 57, 58, 61, 63, 64, 76, 77, 78, 97, 99, 100, 101, 103, 104,108, 109, 111, 112, 157.] [211: ibid paras 40, 76-82, 93, 108-110.] failing to use an apnoea monitor: indicative of guilt or a mothering myth? cannings was regarded by health professionals as a good mother and care-giver, with the appearance of an affectionate and caring mother.[footnoteref:212] she had four children of whom three died. she was charged with the murder of two. all three suffered from what were referred to as acute or apparent life threatening events (alte) where they apparently stopped breathing, and the appeal transcript identified altes as sids in which no death had actually resulted.[footnoteref:213] prosecution counsel argued that the altes were the result of cannings attempting to smother the children by obstructing their upper airways,[footnoteref:214] and the reasoning was supported by evidence that cannings frequently forgot to use the apnoea monitor.[footnoteref:215] [212: ibid para 25.] [213: ibid para 9.] [214: ibid para 4.] [215: ibid paras 77, 78, 157.] at the time when the mothers in this study were having their families, those with a new baby where there had been a previous sudden infant death (sid), were offered support from the care of the next infant (coni)[footnoteref:216] programme managed by the university of sheffield’s child health unit.[footnoteref:217] the worry for parents about how to care for a next infant was considerable, as frances rose, who was monitored as a baby explains: [216: waite a, mckenzie a, carpenter rg, et al., report on 5000 babies using the coni (care of next infant) programme (foundation for the study of infant deaths 1998). the coni programme supported families in which there had been a previous sid, and followed up all subsequent siblings of a deceased infant. ] [217: the child health unit collated data from professionals and parents for publication in the coni reports. ] i know my parents went through the coni scheme with me, ending up with a year or so of sleepless nights due to apnoea monitors (23 years ago these were less than accurate!), which gave them a certain amount of peace of mind, but was coupled with countless false alarms.[footnoteref:218] [218: lullaby trust, ‘i never thought i was a “replacement” child’ http://www.lullabytrust.org.uk/page.aspx?pid=1390 (accessed 17 april 2014).] apnoea is the term used when there is no respiratory effort for greater than 20 seconds or for a shorter period if accompanied by cyanosis[footnoteref:219] or bradycardia,[footnoteref:220] as in an acute life threatening event (alte).[footnoteref:221] apnoea monitors are electronic devices activated by sensors attached to a baby’s chest or abdomen that respond to a baby’s respiratory movements and were provided for families to use when the baby was asleep or at night. waite et al. found that most families (86%) used them.[footnoteref:222] the monitor beeped with respirations and sounded a continuous alarm if the chest or abdomen stopped moving, indicating that respirations could not be detected. a variety of monitors were issued under the coni programme for home use,[footnoteref:223] but they always had ‘serious drawbacks’[footnoteref:224] because they were unable to ‘reliably detect life threatening events, their high rate of false alarms…failing to reliably detect when babies stop breathing’.[footnoteref:225] hence, as in frances rose’s example, apnoea monitors often sounded an alarm for no apparent reason, and confidence in monitors ‘gradually declined’[footnoteref:226] as parents became more aware of the ‘limitations of the apnoea monitors’.[footnoteref:227] as judge lj pointed out in cannings, ‘it is not, as some think, a machine which prevents an infant death’.[footnoteref:228] [219: a term given to a bluish colour of the skin and the mucous membranes of the lips and mouth, usually due to lack oxygen and an increase of unoxygenated haemoglobin or deoxyhaemoglobin in the blood stream. ] [220: a term given to an abnormal slowing of the heartbeat.] [221: acute life threatening event (alte): when a baby stops breathing or its heart slows.] [222: waite et al. (n 215) 11. ] [223: ibid.] [224: burke mj and downes j, ‘a fuzzy logic based apnoea monitor for sids risk infants’ (2006) 30(6) j med eng & tech 397.] [225: ibid.] [226: waite et al. (n 215) 11: ‘from 84% confidence to 75%’.] [227: ibid 19.] [228: cannings (n 1) para 47 per judge lj. ] cannings was issued with a monitor,[footnoteref:229] but her behaviour was argued by prosecution counsel to be anomalous because she often forgot to ensure that it was attached and working,[footnoteref:230] and she reported being unable to remember whether she had heard the sound of the alarm when her babies had stopped breathing.[footnoteref:231] she stated in evidence that ‘the police believed i had never used them [apnoea alarms] at all’,[footnoteref:232] and that police had sound engineers test the alarms.[footnoteref:233] consequently, prosecution counsel argued that ‘the appellant had not told the full truth about the workings of the apnoea alarm’.[footnoteref:234] evidence of her inconsistent memories, and emotional reactions was also presented in terms that suggested her behaviour, described as distressed, very shocked, sobbing, retching and vomiting,[footnoteref:235] may like clark’s have been perceived as too much, and therefore indicative of guilt.[footnoteref:236] [229: ibid paras 47, 57, 63, 76.] [230: ibid paras 47, 57, 63, 76, 77, 78, 157. cannings frequently forgot to put the apnoea alarm on. ] [231: cannings a with lloyd davis m, cherished: a mother’s fight to prove her innocence (sphere 2007) 101.] [232: ibid.] [233: cannings (n 1) paras 111, 157 per judge lj.] [234: ibid para 157, and alarms are also mentioned at paras 9, 47, 52, 57, 76, 77, 78, 97, 99, 100, 103, 104, 105, 109, 111, 154.] [235: ibid paras 51, 58.] [236: there is an issue therefore in relation to interpretations of the feminine, that in some cases traumatic events lead to women behaving with too little emotion as in sexual assault cases, and in other cases with too much emotion as in these child death cases. there is a question whether there is any evidence as to the appropriate level of emotion to be shown in any given situation, if such behaviour is to be relied upon as evidence in criminal trials. ] whether the jury believed that the strength of cannings’ emotional reactions and the fact that she did not attach the monitor and listen for it at all times supported a finding of guilt, is difficult to know for sure. however, the prominence given to such factors in the appeal judgment suggests that at trial, such considerations were significant. hallett j directed the jury to ‘look at all the evidence’,[footnoteref:237] and therefore maternal behaviour would have formed part of that appraisal, especially as there is no mention in the appeal report of a defence challenge to such evidence. in addition, although clark and cannings may be distinguished by cannings having lost three babies and clark having lost two, both were part of the coni programme and issued with monitors, however clark did not use the apnoea alarm at all during the day,[footnoteref:238] and this fact was not raised in evidence. a belief might be held that in cannings’ home where the young infants suffered repeated altes, twenty-four hour monitoring should have been in place. however, monitors were known to be unreliable, infants were under continuous observation and monitor use as a decisive factor in criminal proceedings was inconsistent. [237: cannings (n 1) para 167 per judge lj.] [238: clark (no 1) (n 39) paras 69, 47 per henry lj: because they had had ‘trouble with the coni monitor giving false alarm’, ‘they only used the monitor at night’.] in any event, it is possible that heuristics may have played a part in juror decision making.[footnoteref:239] as temkin and krahé suggested in relation to rape trials, counterfactual thinking has been observed to occur when mock jurors are invited to re-imagine a situation such as a rape, and ask themselves what could have been done differently. in such circumstances, mock jurors are more likely to blame the person they have just imagined acting differently. if instead of a rape, the mock jurors were to imagine an alte and imagined what could or should have been done differently, then theoretically jurors might blame the mother for not making sure the child was attached to a working apnoea monitor. of course that may be a very reasonable belief, but whether the belief supports or justifies a finding of murder given the known difficulties of monitoring instruments is a different matter. nevertheless it is possible that failing to use an apnoea monitor may have been used by the jury as a key behavioural cue in attributing responsibility to the mother. [239: temkin and krahé (n 36) 49. ] as judge lj later suggested, it was possible that given the large number of experts called and the complexity of the evidence given, the jury may ‘inadvertently, unconsciously, have thought to itself that if, between them all, none could offer a definitive or specific explanation for these deaths, the crown's case must be right’.[footnoteref:240] or, if evidence of maternal behaviour was interpreted using fixed beliefs combined with heuristics, a guilty verdict was supported and justified because the expert evidence was so inconclusive, thus presenting the possibility of a mothering myth. [240: cannings (n 1) para 170 per judge lj.] not calling for an ambulance: probative of guilt or a mothering myth? when cannings found her first baby gemma ‘lying on her back, looking very, very white. she tried, unsuccessfully, to revive her. she called an ambulance’,[footnoteref:241] but the baby could not be revived. the second baby jason had an alte when the health visitor was present who resuscitated the child prior to his admission to hospital.[footnoteref:242] jason had a further alte at home a few days later, whereupon cannings dialled 999 and the paramedics arrived.[footnoteref:243] the baby died subsequently in hospital and, following a review of both deaths by leading paediatricians and neuropathologists, no cause of death was identified.[footnoteref:244] the third baby jade had an alte (whilst not connected to the apnoea alarm); cannings called her gp who attended, and the child was taken to hospital[footnoteref:245] and survived until adulthood. [241: ibid para 40.] [242: ibid para 50-59.] [243: ibid para 62.] [244: ibid para 66-73.] [245: ibid para 76-82, 93.] following the fourth child mathew’s birth, cannings was taught ‘advanced resuscitation techniques’.[footnoteref:246] when mathew too suffered an alte in contrast to the three previous occasions, cannings did not call 999, but called her husband to come home; no ambulance was called until after he rushed home from work.[footnoteref:247] at the hospital when mathew was confirmed to have died,[footnoteref:248] cannings’ husband ‘asked her in the presence of the staff nurse why she had called him before she had called an ambulance, as indeed she had. she was quiet for a few minutes, and then told her husband that she had panicked’.[footnoteref:249] when interviewed by police on this question, she said she had wanted her husband to be present, that she wanted his help, ‘so that he could see matthew and see what he was like’.[footnoteref:250] the prosecution considered cannings’ behaviour to be irregular, because although she had commenced resuscitation after ringing her husband, she ‘had not herself directly and immediately sought help either from the emergency services or indeed from neighbours, at least one of whom was a nurse who had offered to help’.[footnoteref:251] in response, cannings said of mathew that she ‘“couldn't believe the way he was”. she wanted “terry to be there to support me. i had always been on my own”’.[footnoteref:252] it is difficult to understand how a mother may have felt in cannings’ situation at the moment of discovering mathew, faced with the prospect of losing a third child, and suspicion from her husband and family, and investigations by doctors and police. it is understandable that she did not want to be alone. but, it was ‘mathew’s death that triggered the investigation which culminated in her conviction’[footnoteref:253] for the murder of both jason and mathew. the question whether cannings’ behaviour in not calling the ambulance immediately in mathew’s case was so prejudicially interpreted by the court at her trial, cannot be answered. however, within the framework of expert evidence that ‘lightning does not strike three times in the same place’,[footnoteref:254] then a fixed belief that cannings should have called the ambulance immediately before commencing resuscitation and before calling her husband, may have supported and justified a finding of guilt. [246: ibid para 96.] [247: ibid para 108-110.] [248: ibid para 108.] [249: ibid. ] [250: ibid para 108, 110.] [251: ibid para 110.] [252: ibid para 112.] [253: ibid para 128. ] [254: ibid para 11.] nonetheless, if each child’s death is considered separately, cannings behaved correctly throughout her challenging time as a mother, apart from the very last occasion, when she said she panicked and wanted her husband there. it is therefore also possible that the jury took her long tribulations into consideration and neither failure to use the apnoea alarm nor failure to call the ambulance were significant in a finding of guilt. but the jury needed to decide whether the child deaths were natural or unnatural,[footnoteref:255] and they heard expert evidence that three infant deaths in one family is very rare.[footnoteref:256] in the absence of direct or indirect evidence,[footnoteref:257] this opinion was key in determining that cannings had a case to answer.[footnoteref:258] [255: ibid paras 7, 157-9.] [256: ibid paras 12, 44, 113, 114, 129, 137, 138, 142, 144, 145, 146, 147, 148, 149, 156, 159.] [257: ibid para 14.] [258: ibid para 163.] judge lj held that the ‘expert evidence was absolutely critical to these convictions’[footnoteref:259] and that the fresh evidence regarding long qt syndrome undermined the original expert evidence.[footnoteref:260] accordingly, it is possible that the jury came to a guilty verdict on the basis of a belief in the certitude of expert evidence (later considered to be unreliable in patel,[footnoteref:261]) rather than because a fixed belief was held about maternal behaviour. if this is so, however, it is unclear why defence counsel were unable to convince the court of the reliability of expert evidence of long qt syndrome presented at trial, unless other factors were more persuasive, such as adverse interpretations of maternal behaviour. the manner in which carers behave at that critical moment of realising that a child needs help is mentioned in other cases too.[footnoteref:262] [259: ibid paras 96, 116120, 175 regarding the likelihood of long qt syndrome in the genetic makeup of the cannings family, thus causing sudden deaths in her infants. ] [260: ibid para 175.] [261: patel (n 25); and see cannings (n 1) paras 15, 22, 164, 165, 171, with reference to jack j’s acquittal of patel. judge lj identified that the causes of the three children’s deaths in patel were similarly to cannings’ case very rare, but he considered jack j’s reasoning with regard to the causes of death to be flawed. ] [262: stacey (n 23); gay and gay (n 1); al-alas and wray (n 25). these cases and the behavioural facts are examined in orr (n 37).] the last section to be examined here on evidence of behaviour relates to mental health, and whether evidence of behaviour can rightly indicate poor maternal mental health that then explains a child’s death. there are two areas of maternal mental health that are referred to in child death cases such as cannings and anthony.[footnoteref:263] the first relates to the possibility of child killing whilst a mother’s mind was disturbed,[footnoteref:264] and the second relates to child killing as a result of attention seeking behaviour such as msbp.[footnoteref:265] [263: cannings (n 1); anthony (no 2) (n 1).] [264: infanticide act 1938 s (1): “where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, … she shall be guilty of … infanticide, and punished … (for) … manslaughter of the child’. ] [265: see n 54; and see also: meadow r, abc of child abuse (bmj books, 1st ed, 1989); meadow r, ‘suffocation, recurrent apnoea and sudden infant death’ (1990) 117(3) j pediatrics 351; meadow r, ‘neurological and developmental variants of munchhausen syndrome by proxy’ (1991) dev med & child neurol 270; meadow r, ‘unnatural sudden infant death’ (1999) 80 arch dis child 7.] maternal mental ill-health: probative of guilt or a mothering myth? cannings, was described as a ‘woman of good character’,[footnoteref:266] who had no previous convictions,[footnoteref:267] and was ‘a loving mother, apparently free of personality disorder or psychiatric condition’[footnoteref:268] such as depression or post-partum psychosis, and who ‘consistently denied harming any of her children’.[footnoteref:269] judge lj explained in the appeal transcript that ‘without medical evidence about the appellant’s mental state, a verdict of infanticide was not open to the jury’.[footnoteref:270] judge lj’s comments indicate that at trial, the court was concerned that if the jury returned a verdict of murder, she should not receive a mandatory life sentence for homicide for each child, but should be sentenced for the offence of infanticide ‘a specific, lesser offence of homicide’.[footnoteref:271] ‘conviction for infanticide is usually followed by a noncustodial sentence’[footnoteref:272] albeit often subject to a treatment or hospital order.[footnoteref:273] [266: cannings (n 1) para 4 per judge lj.] [267: redmayne (n 18) 9.] [268: cannings (n 1) para 4 per judge lj.] [269: ibid.] [270: ibid para 5.] [271: law commission, a new homicide act for england and wales? a consultation paper’ (law com no 177, law commission 2005) para 2.69.] [272: ibid.] [273: infanticide act 1938; law commission, ibid para 1.115 and chapter nine; law commission, murder, manslaughter and infanticide (law com no 304, law commission 2006).] cannings was criticised at trial for not calling the ambulance when mathew was critically ill, for not calmly proceeding to resuscitate jason or jade herself, and for not using and being alert to the apnoea monitor at all times. the appeal transcript suggests however that cannings was ‘faced with recurring disasters which made comprehensible any form of response which, on cold forensic analysis, would otherwise appear strange’.[footnoteref:274] but the jury were told by the prosecution that she would not ‘have killed the children (as the jury found that she had) unless she was suffering from some form of personality disorder or psychiatric condition’.[footnoteref:275] [274: cannings (n 1) para 161 per judge lj.] [275: ibid.] it is therefore possible that a settled or fixed belief that cannings’ behaviour was abnormal, together with a prescriptive belief that only a mental health diagnosis could account for the child deaths, justified a guilty verdict, notwithstanding that ‘there was no evidence to sustain any such diagnosis: indeed it was to the contrary’.[footnoteref:276] hallett j was moved to say after the guilty verdict was returned that, ‘“i have no doubt that for a woman like you to have committed the terrible acts of suffocating your own babies there must have been something seriously wrong with you”’,[footnoteref:277] which she considered was the only way to explain why cannings could have murdered her children.[footnoteref:278] the judge may have been trying to frame the case in order to allow for a compassionate legal response had an application for an infanticide defence been made. if made at trial, then the mandatory imposition of a life sentence that a murder conviction requires, may well have been averted or, had cannings later admitted to killing her children, she may have been considered for an expedited appeal.[footnoteref:279] a confession is however required for a defence of infanticide and mothers may be unable to admit to a killing at trial;[footnoteref:280] they may be guilty, or have an undiagnosed psychiatric illness as suggested in kai-whitewind,[footnoteref:281] or even be innocent. if a fixed belief exists that mothers such as cannings should have said and done things differently, together with a belief that mental ill health may explain the behaviour, the killing and a denial of having caused harm, then such beliefs may have supported contested expert opinions, and justified a guilty verdict. [276: ibid.] [277: ibid para 5.] [278: ibid. ] [279: law commission no 304 (n 272) para 8.4.] [280: ibid.] [281: kai-whitewind (n 24). ] attention seeking behaviour: probative or a mothering myth? the prosecution also contended that cannings had smothered one of her sons ‘in an attempt to evoke sympathy’,[footnoteref:282] suggesting the ‘need to draw attention to herself, a manifestation of factitious disorder by proxy, a condition which, in her case, was excluded’.[footnoteref:283] the appeal court ‘had difficulty following this suggestion’,[footnoteref:284] and it is unclear why it was made, unless to damagingly associate cannings with a destructive diagnosis of msbp.[footnoteref:285] in anthony[footnoteref:286] however, evidence of an msbp diagnosis was put forward for admission, but excluded following defence submissions arguing that professor meadow’s diagnosis ‘amounted to no more than evidence of propensity’.[footnoteref:287] evidence of ‘behavioural tendency or propensity’,[footnoteref:288] indicates that a defendant is more likely to behave in a particular way than another,[footnoteref:289] but propensity cannot describe what really happened,[footnoteref:290] only what the defendant may have done. [282: cannings (n 1) para 59 per judge lj.] [283: ibid.] [284: ibid.] [285: otherwise known as fabricated (or factitious) induced illness by carers (fiic) see rcpch, fabricated or induced illness by carers, report of the working party (rcpch 2009).] [286: anthony (no 2) (n 1) para 2, pp 2, 3, 8 per judge lj.] [287: r v donna anthony (appeal against conviction) (no 1) [2000] wl 989311 p 2 per tuckey j.] [288: redmayne (n 18) 6.] [289: ibid.] [290: ibid.] anthony had two children, jordan who died aged almost a year, and dean who died aged just over four months. anthony denied harming either child and submitted that both deaths were natural.[footnoteref:291] post-mortem findings on jordan showed no evidence that the death was unnatural, nor any indication that the death was natural either,[footnoteref:292] and the cause of death was concluded as unascertained or sudi. in michael’s case although features of sid were also identified, the pathologist stated that ‘the possibility of one mother having two unexplained deaths, in other words lightening striking twice, was most unlikely and outside his experience’.[footnoteref:293] he therefore concluded that the babies had both been suffocated.[footnoteref:294] [291: anthony (no 2) (n 1) para 2 per judge lj.] [292: ibid para 55.] [293: ibid para 59.] [294: ibid.] professor meadow who had also given (flawed) evidence in both the clark and cannings[footnoteref:295] cases, reviewed the post-mortem findings in anthony, concluding that the deaths were typical of smothering because of the ‘“incredibly long odds” against two children in the same family dying of natural unexplained causes.’[footnoteref:296] natural cot death he said happened every 1 in 1000 births, therefore he suggested, the ‘“chance of a natural cot death occurring twice in the same family is 1 in 1000 x 1 in 1000 which is 1 in 1,000,000. it is extraordinarily unlikely…”’.[footnoteref:297] as a result of this conclusion, anthony was alleged to have killed the children ‘to bring attention to herself’,[footnoteref:298] in line with msbp,[footnoteref:299] although no expert opinion on msbp was permitted. anthony was sentenced to life imprisonment. [295: clark (no 2) (n 1); cannings (n 1).] [296: anthony (no 2) (n 1) para 69 per judge lj.] [297: ibid.] [298: ibid para 4. ] [299: meadow r, ‘false allegations of abuse and munchausen syndrome by proxy’ (1985) 60(4) arch dis child 385; meadow r, ‘management of munchausen syndrome by proxy’ (1984) 26(5) dev med & child neurol 672. ] her first appeal in 2000 was refused; at that appeal she sought to exclude expert witness meadow’s opinions, because he had been of the view (although it was not admitted in court), that she suffered msbp, and therefore his opinions submitted in court would have been prejudiced by that view.[footnoteref:300] in addition, anthony’s defence sought to argue that she was suffering from a severe personality disorder at the time of the children’s deaths and that she should have access to the defence of diminished responsibility.[footnoteref:301] both grounds for appeal were rejected, but five years later, following referral to the ccrc[footnoteref:302] a second appeal accepted that as in cannings,[footnoteref:303] ‘the occurrence of a second unexpected infant death within a family is not a rare event and is usually from natural causes’.[footnoteref:304] meadow’s evidence on statistical probabilities was acknowledged to have been flawed.[footnoteref:305] the appeal court drew on fresh evidence[footnoteref:306] in anthony to conclude that if the case were to have proceeded at the time of the second appeal then ‘the medical evidence for the crown would have appeared less compelling than it must have seemed at trial’.[footnoteref:307] [300: anthony (no 2) (n 1) para 4 per judge lj.] [301: ibid ] [302: ccrc referral no 715/03 available at http://www.justice.gov.uk/about/criminal-cases-review-commission/case-library/2 (accessed 18 december 2013). ] [303: cannings (n 1).] [304: ibid para 141 per judge lj, cited in anthony (no 2) (n 1) para 78 per judge lj.] [305: anthony (no 2) (n 1) para 92 per judge lj.] [306: carpenter rg, et al., ‘repeat sudden unexpected and unexplained infant deaths: natural or unnatural?’(2005) 365 lancet 29; waite et al., (n 215); weindling am, ‘the confidential enquiry into maternal and child health (cemach)’ (2008) 88 arch dis child 1034; fleming et al. (n 41).] [307: anthony (no 2) (n 1) para 96 per judge lj. ] it is therefore difficult to know the extent to which anthony’s alleged attention seeking behaviour influenced either the trial or the first appeal outcomes. however, given the presence of the leading proponent of msbp at trial, even though he could not give evidence of msbp, considerations of mental health may have been significant in both judicial and juror considerations. beliefs in the actuality of difficult and unlikeable parents,[footnoteref:308] fictitious illness,[footnoteref:309] and mothers who kill their children,[footnoteref:310] may have been encouraged by meadow’s discourses at jsb seminars,[footnoteref:311] his publication record,[footnoteref:312] and his argument that if no medical reason could be established for a sid then msbp should be considered. the rcpch has published guidance on the diagnosis of fiic[footnoteref:313] or fiip (by proxy), as the syndrome has been variously referred to in the uk, and it remains controversial in both english[footnoteref:314] and australian courts.[footnoteref:315] it is not appropriate either to dismiss the existence of behaviour that amounts to fiic, or to suggest that the crown were wholly wrong to raise the possibility of msbp in both cannings and anthony. the issue that arises however, is whether a fixed belief is held by agents of the court that where there is no conclusive pathology, nor irrefutable evidence of mental ill health, but there are indications that may be interpreted as attention seeking behaviour, that a mother must be guilty of abuse or murder. [308: meadow r, ‘difficult and unlikeable parents’ (1992) 67(6) arch dis child 697. ] [309: meadow r, ‘fictitious epilepsy’ (1984) 2(8393) lancet 25.] [310: meadow r, ‘mothering to death’ (1999) 80(4) arch dis child 359.] [311: baird v, hc deb 24 feb 2004, vol 418, col 39 wh.] [312: meadow r, ‘munchausen syndrome by proxy’ (1980) 55 arch dis child 731; meadow abc of child abuse (n 264); meadow ‘suffocating’ (n 264); meadow ‘neurological and developmental variants’ (n 264); meadow ‘unnatural sudden infant death’ (n 264) ] [313: rcpch (n 284).] [314: a county council v a mother and a father and x, y, z (children) (cc v xyz) [2005] ewhc 31 (fam), [2005] wl 353381; x county borough council v zs, djw, kjw (the child) by his guardian v gem, cm (gem and others) [2015] wl 10382713.] [315: r v lm [2004] qca 192. ] conclusion: does behaviour matter? judging character plays a ‘central role’[footnoteref:316] in our ordinary everyday decision making but, within the criminal trial reliance on ‘character becomes more controversial’,[footnoteref:317] particularly as character as indicated by ‘past behaviour and behavioural tendencies’[footnoteref:318] may be introduced at trial as a way of impugning the credibility of a defendant or witness.[footnoteref:319] personal background information however, together with conduct and character evidence has long been admitted in criminal trials,[footnoteref:320] in order that the courts have an opportunity of hearing from defence character witnesses about the nature of the accused, and whether the allegation was “out of character”.[footnoteref:321] [316: redmayne (n 18) 1.] [317: ibid.] [318: ibid 6.] [319: ibid 5.] [320: hunter (n 17) 163.] [321: ibid 164 citing lord phillips lcj.] the reason for the admission of character evidence is that it indicates dispositions which persist over time, and aids interpretations of behaviour around the time of a criminal event based on past behaviours.[footnoteref:322] but, behaviour as character could also be used to denote a person’s ‘bad character, previous convictions, disposition, or reputation’[footnoteref:323] and such evidence has been considered inadmissible at common law; bad character evidence was considered prejudicial to a defendant because it ‘encouraged mistaken inferences and faulty fact finding’[footnoteref:324] and demonstrated merely propensity.[footnoteref:325] [322: redmayne (n 18) 3.] [323: roberts and zuckerman (n 61) 582.] [324: ibid 587.] [325: lacey n, ‘the resurgence of character: responsibility in the context of criminalization’ in duff a and green s (eds) philosophical foundations of criminal law (oup 2011) 166.] the court of appeal has voiced its concerns relating to the inclusion at common law of material that demonstrates propensity or reduces credibility because such background evidence may be used as a vehicle for smuggling in otherwise inadmissible evidence.[footnoteref:326] this is important, because the difference between how the legal system considers evidence should be interpreted,[footnoteref:327] and how evidence is interpreted by the public,[footnoteref:328] is an area that ‘we know little about’.[footnoteref:329] if the legal profession and the judiciary have concerns about the role of background evidence and its permissive admission, the use of warning devices such as the modern rape myth and the modern mothering myth become indispensable in highlighting and preventing possible injustices. [326: for example, r v campbell [2007] ewca crim 1472, [2007] 1 wlr 2798 in which previous convictions for abh were adduced as evidence that the defendant had a propensity to commit abh. lord phillips lcj criticised the admission of this evidence, suggesting that bad character evidence used to demonstrate propensity was of lesser probative value than evidence of actual conduct. see also r v dolan [2003] ewca crim 1859 paras 21, 27 per tuckey lj citing professor birch: the ‘evidence was obviously more prejudicial than probative’ and not relevant. further, ‘it went to propensity’.] [327: redmayne (n 18) 87.] [328: see the way in which the public within mock juror trials interpret behaviour evidence and the way in which women may judge other women using their own behavioural norms in ellison and munro (n 166); ellison l, ‘turning mirrors into windows? assessing the impact of (mock) juror education in rape’ (2009) 49(3) br j criminol 363; ellison l, ‘a stranger in the bushes, or an elephant in the room? critical reflections upon received rape myth wisdom in the context of a mock jury study’ (2010) 13(4) new crim l rev 781; ellison l, ‘better the devil you know? “real rape” stereotypes and the relevance of a previous relationship’ (2013) 17(4) intl j evid & proof 299; ellison l, ‘telling tales: exploring narratives of life and law within the (mock) jury room’ (2015) 35(2) leg studs 201.] [329: redmayne (n 18) 87.] that background evidence may be used in criminal trials is not novel, but we should be cautious about using non-criminal behaviour evidence because as redmayne signals, the trial may then become an examination of the ‘defendant’s life and attitudes’[footnoteref:330] with the possibility that for all of us, and especially mothers accused of killing their children, ‘the state might dredge up any unpleasant behaviour in our lives and use it to convict us’,[footnoteref:331] or of course in rape trials perhaps, to wrongly acquit the defendant. [330: ibid 86.] [331: ibid.] rms tells us clearly that female behaviour and its interpretations matter. it also suggests that further research is needed into understanding where there is meaning, relevance or even probative value in particular female behaviours if they are to be used as evidence, and into the ways in which the public interpret behaviour evidence. rms has had success in challenging the permissive admission of evidence of complainant behaviour in rape trials and by using the device of a rape myth has sought to isolate, define and measure the prevalence of beliefs which may be used in criminal trials to show propensity and/or bad character. in so doing, rms has uncovered multiple layers of complexity comprising beliefs, attitudes and norms relating to women, with varying functionalities and interconnections. the same complexities may be true also of beliefs about mothers and their behaviours when they are accused of killing their children. by being more aware of the pitfalls of language, and the firmer ground of normativity we may be able to identify the operation of prescriptive beliefs in child death cases. the modern mothering myth may provide us with a device with which to challenge the admissibility of evidence of a mother’s conduct and behaviour prior to and around the time that a child dies. it is essential for justice that we distinguish between beliefs going only to propensity and actual conduct relating to criminal liability when mothers are accused of killing their children. we can and should challenge modern mothering myths. _________________________________________________________________________________ 20 _________________________________________________________________________________ 1 non una meno we have a plan ___________________________________________________________________________ feminists@law vol 9, no 2 (2019) __________________________________________________________________________________ we have a plan: feminist plan to combat male violence against women and gender-based violence non una meno abstract non una meno is an italian trans-feminist, intersectional, anti-racist, anti-fascist, anti-capitalist political movement, independent of any party, which aims at the radical transformation of society starting from the fight against male and gender violence and against social hierarchies.  it emerged in italy in 2016 in the wake of the argentine movement, ni una menos, that campaigns against gender-based violence in all its forms. as an anti-systemic movement, it seeks to dictate a new political agenda to counter attacks from the increasingly numerous neo-conservative governments and neoliberal economic policies that exploit and marginalize people within and between countries. it claims the right of women to decide about their bodies, opposing all those reactionary logics that try to impose gender roles. it argues against sexual violence and femicides, and is opposed to all those forces of government ready to exploit violence against women to justify racist and security policies. it fights against economic violence, the blackmail of precarious work or a residence permit, which have women and migrants as an easy target. it​ intends to subvert power relations that generate harassment, violence, racism and economic and social inequalities. it has a plan and it will not stop until it is realised. this is its english translation. not one woman less language is not only a social structure and a means of communication; it is also a central component in the construction of identities, both individual and collective. the italian language is gender-charged: with nouns, pronouns and adjectives that change depending on whether they are masculine or feminine, its grammatical structure reproduces and institutes a rigid binary model of gender. moreover, it establishes the masculine as the dominant gender by using it as the universal neutral. [ed: translator has omitted a section here, as it refers specifically to the use of italian gendered pronouns in the text.] yet languages change and evolve, so let us make the effort to make our language more inclusive, to bring in new words that enable us to tell our stories and cultivate our collective imagination. this feminist plan to combat male violence against women and, more broadly, gender-based violence, will deal one by one with the various contexts in which gender-based violence takes place, so as to cover the issues as clearly as possible. when we assert that violence is systemic, we mean that it appears in many different forms and across all aspects of our lives, recurrently intertwining. if we were to illustrate this intertwining, it would look more or less like this: contents foreword 2 introduction 3 free from sexism 6 free to educate ourselves 7 free to train and teach 11 free to decide about our bodies 12 free from economic violence, exploitation and job insecurity 16 free to write our own history 19 free to move, free to stay 21 free from environmental violence 23 free to build feminist spaces 24 free to be autonomous 28 free to assert and defend our rights 31 free to set the record straight 32 conclusion 33 foreword the pages that follow do not simply boil down to a plea or a list of grievances. it is the fruit of collective writing by thousands of women and associations. it has arisen from the shared experiences, wisdom and methods of individual and collective resistance to the myriad forms of male violence against women, gender-based violence and violence resulting from societally-imposed gender roles that affect all of us. to the cry of ‘not one [woman] less!’, coined by our argentinian sisters, a new global feminist movement has been booming for over a year now. not one more woman should be killed or abused – that much is obvious, but it is not enough! we want to reclaim public spaces, make our own decisions about our bodies and our lives, and reaffirm the political force of women. populous and diverse, we united to form a tide of over 250,000 that demonstrated in rome on 26 november 2016, as our female and male allies in many other countries did simultaneously. we took back the streets, aspiring to subvert the discourse associated with the current patriarchal, neoliberal order. following a communal assembly in rome on 27 november 2016, the last year has seen hundreds of not one less gatherings take place in scores of cities, sparking a widespread process of convergence among women, feminists, transfeminists and lgbt*qia+ activists.[footnoteref:1] [1: transfeminism is both a resistance movement and a theory that gender, arbitrarily assigned at birth, is a social construct used as a means of controlling and restricting human bodies to conform to the heterosexual, patriarchal social order. driven by the lives and experiences of transgender people, feminists and queer people, as well as by the complex, multifaceted possible positions vis-à-vis gender and sexuality, transfeminism sees the connections between the patriarchal order and the oppressive capitalist system, which harm all individuals who are not heterosexual white males. the term queer is intended here as a broad and inclusive concept, focused on the fact that sexual identity is not an objective fact but variable, transient terrain. it is a collection of theories and practices that subvert the rules of binary opposition (gender binary, sexual binary, etc.). in fact, the theories that challenge the idea of a gender binary or even a sexual binary are commonly referred to as queer theories: sexuality is viewed as a combination of biological sex, gender and sexual orientation, which is constructed socially and constantly reproduced by individuals. finally, the acronym lgbt*qia+ stands for lesbian, gay, bisexual, trans or non-binary (*), queer, intersex and asexual, with the ‘+’ at the end indicating an open stance towards any other self-defined identity of gender and/or sexual orientation. ] introduction male violence against women is systemic. it pervades all aspects of our lives. it relentlessly expresses itself, feeds off itself and reverberates, from family life and personal relations to the economic, political and institutional spheres, as well as to the social and cultural spheres, in various forms and facets: physical, sexual and psychological violence. gender-based violence is therefore not a new emergency, nor is it a geographical or culture-specific issue. male violence is the direct expression of oppression in the name of patriarchy, of a system of male power that has materially and symbolically permeated culture, politics and social relations, both public and private. gender oppression and gender inequality are structural phenomena, rather than sporadic or exceptional. they go beyond interpersonal relations, permeating and pervading all of society. as feminists, we have always repudiated these patriarchal chains (in the form of gender stereotypes, rights, the church or other religious institutions, and even more importantly, family constructs) around our self-determination and freedom of choice; we have shown the intimate connection between these devices of dominance and the imposition of heterosexual norms. patriarchy, and thus male violence, have also always served to reinforce the ideals of profit and capitalistic accumulation, as well as to organise society in accordance with exploitative relationships. such relationships run throughout society and intersect in many ways, with power and subordination devices based on gender, class and background. in this respect, we assert that there are many different patterns of violence and that femicide is only the tip of the iceberg of a deep-rooted phenomenon. in the preamble to the istanbul convention, violence against women is described as ‘a manifestation of historically unequal power relations between women and men, which have led to domination over, and discrimination against, women by men’. in other words, the text continues, such violence is ‘one of the crucial social mechanisms by which women are forced into a subordinate position compared with men’, and as such is ‘structural’ in nature. furthermore, because it is gender-based, it also affects the entire lgbt*qia+ spectrum: it is violence directed against people due to their identity and/or choice of gender and sexuality. this is why when we talk about male violence against women, we must talk more broadly about gender-based violence. furthermore, this violence needs to be exposed as a consequence of a social imperative to reproduce and preserve the binary male/female gender model, in support of mandatory heterosexuality. this is what we call gender-based violence; it is a mechanism that forces us to identify with either a universal masculine or a universal feminine, that is, with the gender assigned to us at birth and with the designated social role for that gender. if we view gender as a socially and historically constructed notion, not necessarily connected with biological sex, then we can see how there is a common framework of violence that affects women and, at the same time, all other individuals who do not identify with the binary gender norm. institutional measures to combat violence, both in italy and abroad, are often adopted in the context of emergency safety and security measures. in italy, measures that have been implemented up to now have been inconsistent and partial. they have in fact focused only on certain expressions (albeit the most flagrant ones) of the phenomenon, such as stalking and femicide. institutions continue to treat gender-based violence as individual acts, while at the same time they exploit it time and time again in their rhetoric to create an external enemy. the enemy may be moral decay, to justify the repression of individual liberties; it may be migrants, to legitimise racist and security-driven policies that criminalise migrants and advocate repressive actions against them. provisions have been implemented that establish equality in theory but not in practice, that never really tackle the power structures in place and, moreover, never fully recognise political responsibility for the problem of violence. we have developed this feminist plan to end violence based on the shared analyses and methods which, as feminists, we implement on a daily basis in the spaces and places we pass through. it begins with the premise that we must overcome the ineffectiveness of political institutions in preventing and combating violence. this is an ambitious challenge, but an extremely important one. it is a plan for a struggle, a plan for action, a plan rooted in the experiences and in the history of feminist movements, of women’s shelters and clinics, a plan that identifies methods, tools and demands needed to overcome inadequate approaches. our plan rejects any interpretation that attempts to neutralise the political dimension of gender-based violence. such interpretations are actually veiled attempts to keep women in a state of victimhood and dependence, rather than focusing on reasserting their independence and autonomy. the not one less feminist plan to combat violence embraces the fundamental principles of feminist theory and practice, such as ‘starting with the self’ and relations between women. we have therefore adopted a position policy. taking a position means acknowledging that we begin from a non-impartial perspective delineated by the diverse material and abstract conditions in which we live. starting with the self means recognising differences between us, and thus shedding light on our own privileges (whether as whites, heterosexuals, etc.) in order to deconstruct the current power dynamics. as such, this plan also takes an intersectional approach. the concept of intersectionality arose from anti-racist and feminist struggles in the united states, denoting the way in which individuals are simultaneously arranged in society and in power hierarchies. we believe it is crucial to analyse the ways in which patriarchal, gender-based violence combines with other forms of domination, such as those based on geographical origin, culture, social background, age, abilities or disabilities. this written work has therefore been made possible by a method that makes valuable connections between different positions and different disciplinary perspectives. over the course of a year of meetings and discussions, we examined how violence affects all aspects of our lives. this text will therefore cover these aspects one by one, envisaging potential solutions, demands and related mechanisms to fight for liberation. so, this document is a plan which aims to tackle the problem of institutionalised violence, presenting knowledge, alternative practices and concrete goals, drawing on a wealth of experiences gained in women’s struggles, solidarity movements and self-management. these experiences include secular, feminist clinics and women’s shelters, which arose along with the women’s rights movement; they were the first real response to the problem of male violence. run by and for women who invested their hopes, deep desires and professional skills, these spaces helped to generate a continuum of theories and practices to produce change and to reveal once and for all the widespread and structural nature of patriarchal violence. we therefore strongly feel the need to oppose criticism from those who, attuned with the dominant culture, insist on using rhetoric that neutralises the feminist approach to combating gender-based violence, that focuses on institutionalising the paths to end this violence. our plan confronts the sexist, discriminatory methods of imparting knowledge built into our current system of education and training. in late october 2017, the italian ministry of education (miur) published guidelines on ‘teaching respect’ in schools of all levels: they are based on the premise of the gender binary being set in stone and unassailable. we, on the other hand, believe that if education on differences is going to work in the struggle against gender-based violence, then it must be based on the assumption of gender complexities and value the many inevitable differences between individuals and communities, so as to steer society in the direction of equality, justice and diversity. our plan confronts violence in medical and health services against our bodies, denying our right to autonomy, well-being and pleasure under the pretext of regulations and protocols. women’s right to autonomy in sexual and reproductive health is constantly under attack, in the form of allowing doctors to ‘conscientiously object’ to performing abortions, obstetric violence, and making women feel guilty if they choose not to become mothers (as is evident in the recent national fertility plan[footnoteref:2]). in order to guarantee autonomy for women and lgbt*qia+ individuals, the health service provider-patient relationship needs to be viewed as a political issue, so that the concept of healthcare can regain meaning from a women’s rights perspective. [2: the purpose of the plan published by the ministry of health in may 2015 (http://www.salute.gov.it/imgs/c_17_pubblicazioni_2367_ annex.pdf) is to place fertility (with a capital f) at the centre of italian health and educational policies with the slogan ‘defend your fertility, prepare a cradle in your future’. the plan intends to counter the birth rate of 1.39 children per woman (2013 data, although in 2017 this had dropped to 1.32 despite the plan), which places our country among the european states with the lowest birth rates. besides aiming to inform citizens about the role of fertility in their lives, providing qualified health care to defend fertility, and developing people's knowledge about the functional characteristics of their fertility, the plan also establishes ‘fertility day’ – a national day of information and training on fertility, whose slogan is the ‘prestige of maternity’ – in order to ‘reverse the current mindset and re-posit fertility as an essential need not only of the couple but of society as a whole, thereby promoting cultural renewal on the subject of procreation’.] our plan confronts the violence of borders, which causes many women to suffer doubly, as women and as migrants, in both the countries they emigrate from and those they migrate to and pass through. this limits their ability to escape and form strategies of resistance. racism and sexism are in fact interrelated forms of violence and control mechanisms, mechanisms that seek to produce and preserve hierarchies and segregation. combating racism and sexism requires more than a response based on cultural rhetoric; it requires a radical transformation of society involving the redistribution of wealth, welfare and rights. our plan confronts neoliberal violence consisting of social inequalities, exploitation, job insecurity and unwanted unemployment, unpaid or underpaid work, gender wage gaps and workplace segregation: all of these are conditions that materially impinge on women’s right to self-sufficiency and make them all the more vulnerable to male violence. specifically, austerity policies, public spending cuts and the dismantling of the welfare state across europe (as well as national reforms which follow these lines) only impede women’s struggle for self-sufficiency, as the effects of these policies exacerbate social, cultural and sexual discrimination. the subject of reproduction – intended here as all activities devoted to regenerating and taking care of life – is regarded as a central and eminently political issue in our plan, an issue that must involve society as whole, not just women, in contrast with the patriarchal ideology (reiterated by neoliberal ideology) which forcefully asserts that women are ‘naturally’ predisposed or inclined to handle such reproduction-related activities. our plan is therefore based on the principles of feminism and transfeminism: autonomy, intersectionality, self-defence, prevention, multidisciplinary approach, solidarity and social justice. the empowerment of women and lgbt*qia+ individuals is a decisive, objective element in all of our methods. taking this position means rejecting any argument in favour of a presumed ‘biological destiny’ of fragility, inferiority and victimhood. it means exposing the political dimension of male violence against women and gender-based violence. we want independence, not assistance. with our strategies for resistance, working together and helping each other, combined with our wisdom and strength, we can and will take back everything that belongs to us. enjoy the read! free from sexism we leave and return together: feminism as the basis for interpreting the status quo gender-based violence is not a temporary exception or emergency; it is the product of an age-old patriarchy. in the modern capitalist system, this patriarchy has found a new lifeblood. this began with the sexual division of labour in which women were first relegated to domestic tasks, thus establishing the nuclear heterosexual family as the cornerstone of social reproduction. then, when women were brought into the labour market, it was chiefly through new forms of violence, disparities and injustice. gender-based violence is therefore a structural phenomenon that affects all aspects of our lives. it is a product of what is still a highly patriarchal society, of a certain way of producing and reproducing life. it asserts itself in the earliest experiences of each one of us, beginning with the models we assimilate with regard to the family, school, relationships and work, as well as ideals conveyed through the media. the process of developing the present plan was long and not without conflict. we are aware that it is only the first step on a long journey to transform the world around us, because there is no sphere or aspect of society immune to the many forms of gender-based violence. change must therefore be radical, and must start from within ourselves: we need to create new ways to engage in politics, new ways to be together. for these reasons, our collective thought process examined not only the fields of social production, reproduction, education, information, relationships and health, but also social movements, our spaces, political groups, the situations in which we would like to be and sometimes declare ourselves to be liberated, but which are not always free of sexist and violent undercurrents. our experiences as activists and the not one less movement itself have therefore been part of our analysis as well. anti-sexism and feminism are not just single issues or attributes, but rather an outlook, a way of being and a way of viewing the world that, in our view, are critical to interpreting and changing reality. so, we need to find our collective voice, free up spaces where we can begin from the ground up, practising forms of resistance and self-management. we need to create settings where we can deconstruct power relations and inequities, places where our anti-authoritarian practices and models of social relations free of violence can be priorities, where we can experiment with new ways of relating to and taking care of one another. only in this way will we be able to reassert a true ‘culture of consent’: a culture where consent is at the heart of every type of interaction, whether sexual, social or political; a culture where certain roles or sexual desires, preferences and opinions are never taken for granted, where no one dominates over or takes advantage of others. consent is an open-ended process that is never resolved once and for all; it involves constant interaction based on an ability to listen and to share. free to educate ourselves feminism goes to school: places of learning as key venues to combat gender-based violence we believe that preventing and combating male violence against women will require overhauling the education system. violence against women is a systemic phenomenon that goes to the roots of society as a whole, and that pertains to all contexts of education and training, from nurseries to universities and professional training schools. as feminists, we practice and demand a radical pedagogical approach grounded in principles that reject classism, racism, fascism, heteronormativity and religion-based education; we demand an interdisciplinary and intersectional approach that can directly provide the tools needed to transform reality. we demand a perspective that sees the full set of differences between individuals and recognises how actions combine to influence people’s lives. this is why we talk about a plurality, or potentially infinite number, of differences. teaching about differences from a feminist point of view requires leaving the gender binary behind as our model of interpreting identity. by gender binary, we mean the theoretical paradigm, currently widespread in society, of distinguishing between the two sexes, male and female, as a static dichotomy. human beings are classified into one of two complementary categories based on one biological fact. males are associated with activity and females with passivity, males with reason and females with emotion, males with culture and females with nature, and so on. this gender binary is directly linked to heterosexuality and leads to the perception of any variations on this classification as abnormal or unnatural. we, however, believe in teaching about differences in a way that explains the existence of multiple gender identities, without trying to force feelings and relationships to follow the standard of the heterosexual couple. a crucial tool in this process is language: we need to develop non-sexist language that acknowledges differences instead of silencing them into a neutral and universal masculine. conceived as such, teaching about differences cannot be done without applying feminist methods and practices, which implies cooperative, horizontal approaches with the participation of everyone across all educational settings. clearly, this view is at odds with the education and training system currently in place. we believe, in fact, that the recent national education and training system reform in italy, known as the ‘good school’ law (law no. 107 of 2015[footnoteref:3]), has inflicted a lethal blow to our school system. hidden behind key concepts of innovation, autonomy, inclusion and merit, what is actually being promoted is a highly anti-democratic vision that precludes continuity in working and teaching, and renders any viable pedagogical project impracticable. this reform opens school doors up to outsourcing and the privatisation of services, through several dangerous measures which introduce the concepts of profit and entrenched privilege under the guise of meritocracy into our education and training system. from the teachers’ point of view, in addition, the ‘merit’ scheme will have a negative effect on salaries. instead of receiving pay rises linked to their years of service, pay rises will now be based on selective mechanisms and issued exclusively to those who are deemed to have ‘merited’ them. from the students’ point of view, the massive introduction of mandatory work-school programmes is tantamount to unpaid, under-age labour, often entirely unrelated to a real educational project, but rather as a way of replacing paid workers. [3: thwarting the meaning of autonomy (i.e. self-regulation by the school community), the reform entrusts the reorganisation of the human, financial, technological and material resources of the school to the so-called executive. this new role enjoys a strong concentration of powers: executives can choose teachers from territorial registers, form their own team of collaborators (10% of the teaching staff), and reward the best teachers. besides introducing a school-work experience model (400 hours for technical and professional institutes, 200 for lyceums), the reform provides for tax breaks (school bonuses and tax deductions) for parents who register their children in accredited private schools.] one key aspect of creating truly transformational change would be to educate about differences starting in early childhood. the existing guidelines for pre-school education in italy, which also rely on privatisations and outsourcing, do not fulfil the need for a good quality public service. nurseries should be considered an integral part of the national education system and therefore, free public nurseries should be available to all. the trend, which began with the good school reform, needs to be reversed, starting with the insourcing of the many people who are working under increasingly insecure conditions. equally problematic conditions can be witnessed in public universities, institutions which have developed around a masculine model of hierarchy, authority and deference, and which are playing a fundamental role in the neoliberal restructuring of society. universities have been rearranged as financial entities, managed in accordance with market principles to become places from which human capital is extracted, where humans are trained to compete with each other on an increasingly erratic labour market that offers no protections. so, even the knowledge imparted by these institutions now reflects hierarchical and exclusionary reasoning. in italy, moreover, gender studies departments are practically non-existent. we are calling for this field to be recognised as an independent line of research, and affirm that spaces where feminist cultures and practices can be spread within universities should be valued, in terms of both specific courses in the curriculum and coverage of gender issues in existing courses. this coverage should acknowledge the centrality of the individuals in education and should be able to spill over to other fields and departments. we want schools and universities in which the processes of producing and imparting knowledge are determined by the people who experience life in these arenas on a daily basis. to start with, their needs and desires should be identified. they should be able to decide for themselves how to allocate and manage resources, and be able to create cooperative spaces along with clinics, women’s shelters, and feminist associations with proven experience in preventing violence and in teaching about differences (principles that match those described earlier). schools and universities should become places where teaching and research methods and techniques can be designed and developed through cooperation. who teaches whom? for schools and universities to actually be able to fulfil the dual task of preventing and combating gender-based violence, we believe that teachers and educators first need to work on deconstructing internalised stereotypes, which often unconsciously shape relations in education. this arduous work can only progress by means of exchanges and cooperation between colleagues, in synergy with skilled specialists in the field, and only makes sense if it is designed to accompany and support individuals throughout their working lives. for this reason, we believe it is essential for training in gender-based violence prevention, conflict resolution and diversity education to be set up as functional, well-funded courses available uniformly throughout the country. such courses also need to be accessible to non-permanent staff and, most importantly, be part of teacher training programmes. in this regard, we believe that the current unpaid, mandatory national teacher training programme is absolutely ineffective, because it focuses strictly on topics established by the ministry of education yet outsources the service to accredited training institutions. teaching staff should be able to choose which training programme to take and should be adequately paid for the hours spent in training. as feminists, we believe that continuing education for teachers and students needs to be accompanied and supported by self-training methods to identify specific educational needs and desires. self-training, starting with sharing acquired knowledge and imparting experiences, should produce a conscious revision of skills, which is essential in the teaching and learning process. so, based on the needs identified, it should be the individuals themselves (teachers and/or students) who build networks with the services available, and these services should in turn be sufficiently financed so that activities can be widespread and effective. let’s build different spaces and materials for teaching we believe it is also essential to draw attention to the issue of academic spaces and the most common teaching materials, like textbooks. the former are insufficient and arranged hierarchically (with teacher and student desks normally arranged for lecture-style lessons only), while the latter are deficient in both form and content. we believe that in order to focus on social relations in educational settings, the places and materials used need to be reshaped. it is therefore crucial to revise textbooks and other learning materials selected by schools of all levels and types, which currently convey a stereotypical and sexist view of genders and relations between the sexes. in the same way, the criteria for ‘italianness’, beginning with presumed whiteness, need to be questioned, by rereading italian and european colonial history and studying the connection between racialisation, sexism and exploitation, with an emphasis on the role of physical violence against women in colonisation processes. against gender stereotyping in education considering the role of women working in education, it becomes clear that the latest italian school reform has used the rhetoric of mission and sacrifice (which, along with abilities in social relations and in care, are speciously considered feminine qualities) in an effort to further destabilise and devalue these careers. the consequences of this way of interpreting the work of teachers and educators as though it were a mere extension of a natural maternal instinct, rather than a profession acquired through years of studies and training, can be measured in several areas. one example is the infamous ‘glass ceiling’ that separates career paths along gender lines. while 80% of italy’s primary school (6-10 year olds) and middle school (11-13 year olds) workforce is female, the percentage of women falls substantially in secondary schools and universities. in addition, in the university system, there is a clear gender divide by faculty: many more women go into the humanities than technical or scientific fields, the latter generally being the disciplines that tend to lead to higher-paid careers. we therefore demand: • sufficient long-term public funding of education, training and research, from the nursery to the university, with funds specifically to be allocated towards: a) remunerating both teacher-trainers and teachers in training; b) structured courses in local institutions on preventing and combating gender-based violence, providing adequate pay to the individuals involved without resorting to lump-sum tenders; c) providing job stability to teachers, educators and researchers, and raise their salaries to the european average; d) guaranteeing that research is unattached to profit-making principles, but instead puts quality and society’s real needs first. • the abolition of the aforementioned ‘good school’ law as well as its precursor, the gelmini education reform legislation.[footnoteref:4] in our view, in light of the changes they have introduced in terms of both education and working conditions, these laws cannot simply be amended. [4: the gelmini reform introduced a series of legislative acts between 2008 and 2010 (during the fourth berlusconi government) that concerned the entire school system. with regard to the university system, law no. 240 of 2010 has profoundly changed university governance by introducing the so-called ‘corporate university’ model with the presence of private individuals and corporations on the boards of directors.] • the development of a grassroots project to draft new reforms for schools and universities, which would include changes to curricula and programmes along the lines of the principles we have espoused above. • the opportunity to set up grassroots training and self-training programmes, which in contrast with the new national teacher training plan would be based on the principles outlined above and would see expert organisations involved in drafting and carrying out training projects oriented towards preventing and combating gender-based violence. • fairer distribution of positions and roles to break the glass ceiling once and for all. • that the automatic pay increases for teachers be exclusively linked to their years of service. • that job training courses, particularly for women involved in violence recovery programmes, leave sexist stereotypes behind and stop steering women towards a limited range of ‘female’ occupational options. for this, it would be advisable to implement a support network effectively connected with companies, organisations and local public bodies, with programmes based on recognising women as important individuals, on strengthening personal identity and on developing planning skills. • straightforward procedures to obtain official recognition of education degrees and professional qualifications earned outside of italy, so as to allow foreign nationals access to qualified jobs as well as to encourage people from other countries to study and undertake research at italian universities. free to train and teach building and sharing knowledge to resist the culture of violence to prevent gender-based violence, it is essential to have a permanent, multidisciplinary training system in place where this phenomenon can be monitored in all its facets and at all levels of action in support of women. training for anti-violence centre (cav) staff support for women who suffer abuse must meet the criteria established by the knowledge acquired by women’s movements as well as of eu and un charters and recommendations. we therefore believe that training in this area should be run by those centres whose specific mission is based on the right to choose and to give consent, and on recognising and strengthening women’s capabilities, not on perpetuating a culture of dependency or on damage control. training for other professionals involved in violence recovery programmes for women it is important to expand contact networks between cav workers and others who come into contact with requests for help (such as teachers, educators, politicians, judges, lawyers, police officers, counsellors, healthcare workers and social workers), fully recognising the specific skills of the women who work in the centres. cav professionals can then raise awareness by training these other professionals so that they become able to identify cases of violence (especially concerning consent in potential cases of sexual violence, which needs to be stressed as the critical grounds for treating it as a crime) and provide an initial point of refuge for women before directing them to the appropriate specialist services based on an understanding of the resources available and of the network’s operative tools. educating and raising awareness in the media toxic narratives need to be eliminated at the source, with the aim of changing our culture through widespread educational campaigns in all areas of communication, from journalism to advertising, from public announcements to the arts; educational efforts in these fields must begin in academic programmes and continue in specialist courses. specifically, we envisage courses on male violence against women and lgbt*qia+ individuals, on sexist and racist language, as well as on women’s history and culture, as part of permanent mandatory training for careers in journalism, including ‘fictional’ media careers. for those involved in audio-visual and communications campaigns, awareness of gender issues is essential with regard to the use of images. such courses should be led by feminist experts who have specific skills in the subject. raising awareness in the workplace gender-based harassment, abuse and discrimination have grown more and more frequent in the workplace. increasing job insecurity along with the destruction of fundamental workers’ rights and worker protection implemented under the latest job market reforms, combined with the general impoverishment caused by the recession, have disproportionately increased the vulnerability of women and lgbt*qia+ individuals to coercion in the workplace, exposing them once again to these forms of violence. we therefore assert that one vital measure to prevent such violence is to develop mandatory workplace training courses for all staff on sexual abuse and harassment, sexism, transphobia, homophobia and racism. these courses would be designed by and for women and lgbt*qia+ individuals, in conjunction with cavs. in this vein, we hope (not merely as an after-thought) that positive ties will develop between cavs and labour unions, with the goal of providing sufficient and efficient protection and self-defence mechanisms. free to decide about our bodies for full healthcare rights we regard health as psychological, physical, sexual and social well-being, and as an indicator of freedom and empowerment. health is not simply the absence of disease or infirmity. keeping this premise in mind, we believe it is necessary to focus on bodies and desires, as well as on material needs and conditions, in dealing with health issues. we want pleasure to be valued as a core attribute of sexual health. sexual health should therefore be treated as more than its reproductive and medical dimensions. in this respect, we must recognise that there is institutionalised abuse of people considered ‘abnormal’, with certain conditions viewed as pathological and the individuals concerned forced to undergo medical treatment. we therefore condemn the practice of ‘normalising’ intersex[footnoteref:5] infants as a form of violence and demand that it be abolished, partly with a view towards eradicating the gender binary. this gender ‘normalisation’ is done through surgery and medication administered to the intersex infant in order to change their internal and external genitalia to make them conform with the norm. these operations are obviously done without the patient’s consent and have very serious effects on sexual and reproductive health, not to mention psychological consequences. [5: ‘intersex’ is an umbrella term to describe people whose sex traits do not fully fit the typical definition of either male or female. the biological sex of intersex people is considered indeterminate due to variations in chromosomes, gonads, hormones, genitals or secondary sex characteristics (e.g. breasts or body hair). even though in general these atypical traits do not pose physical health risks (there are correlated health problems only in certain circumstances), intersex people are often subjected to surgical interventions and major drug treatments as infants or over time in order to make their bodies conform to the conventional standards of masculinity or femininity, and then assigned one of the two sexes. according to several estimates, somewhere between 1% and 4% of the population is born with intersex traits.] by the same token, though, gender transition procedures and treatments need to be reclassified so as not to construe them as illnesses. in fact, a psychiatric diagnosis of gender dysphoria should not be required for an individual to begin transition procedures, nor should an individual be required to undergo any surgical operations before changing the declared gender on identification documents. at the same time, free access to hormone therapy to support treatment for transgender individuals should be guaranteed. the right to healthcare, including for sexual and reproductive health, should be guaranteed for all, even in prisons, detention centres and under other conditions of limited freedom. this also means ensuring dignified conditions and access to hormone treatment for transsexuals in such places of limited freedom. we demand the right to physical well-being and autonomy in public spaces, as a right that takes priority over the dominant concepts of security and decorum. we need to begin building a land where women and all individuals can live freely and in accordance with their own desires. we also think that access to healthcare and social services should be universal. as such, we believe these services need to be changed as soon as possible in order to be fully inclusive of individuals that may not fit the profile of a white, young and able, heterosexual, ‘native’ italian. we want unconditional access to healthcare and welfare. in particular, access to healthcare coverage for undocumented migrants should urgently be separated from residence requirements; migrants should not be required to demonstrate effective residence for three months in order to access healthcare services. cultural mediation and translation should be guaranteed in all healthcare institutions, social services and public bodies. we argue that mediators from secular, feminist backgrounds should be present at each point of healthcare, in order to facilitate recognition of gender-based violence in its various forms. such mediation must aim to oppose treating individuals who use the services like children, leaving room for empowerment in its various forms. furthermore, sexual and reproductive health should be guaranteed for sex workers, who should be given the information, preventive tools and care that will provide them with support yet leave them independent, with freedom of choice. we interpret the current relationship between healthcare rights and the right to autonomy as part of a gradual dismantling of the welfare system, where the public healthcare system is being corporatised, privatised, and destabilised. the connection between healthcare employees’ working conditions and patients’ well-being needs to be highlighted as a necessary step towards improving relations between all parties involved. empowerment can be asserted by adopting and sharing the knowledge and resources which form the basis of medical authority and the imbalance between people in care and specialised personnel, with the aim of breaking down the barriers that divide the two. debates need to be opened up about biomedical knowledge and how it can be passed on, in light of transfeminist knowledge, recognising that each person cared for is the bearer of knowledge that derives from the self. based on the principle of empowerment, we oppose monopolies of knowledge and seek to adjust the imbalance between providers and users of healthcare services. much more than (law) 194[footnoteref:6] [6: law no. 194 of 1978 made the voluntary interruption of pregnancy legal in italy during the first 12 weeks. in the following period it is possible to access abortion services only for therapeutic purposes related to the health of the mother or the foetus. article 9 of the law gives medical and health personnel the right to abstain from performing an abortion in the event of a previously declared conscientious objection. the widespread use of conscientious objection, practised by about 70% of health personnel, effectively limits access to abortion. ] of the 94 hospitals in italy that have an obstetrics and gynaecology department, only 62 (or 65.5% of the total) perform abortions. conscientious objections to abortions in the national health service are illegitimate because they constitute an infringement of women’s right to autonomy. we argue that all women (whether italian-born or migrant) should have full access to both surgical and medical abortions if requested. given our priority of empowering women, we advocate de-hospitalisation of abortion through an increase in the use of abortion pills. national protocols for administering abortion pills need to be amended and made consistent. medical abortions[footnoteref:7] should in fact be permissible up until the 63rd day of pregnancy without hospitalisation, and may even be administered by obstetric personnel in clinics. [7: medical abortions are accomplished through the administration of two drugs, ru-486 (which terminates pregnancy) and a second pill that aids the expulsion of tissues that develop during pregnancy. the process lasts between one week and nine days, after which the normal menstrual cycle gradually resumes. the success rate of medical abortions is between 92% and 99%. in italy it is currently practised up until the 49th day of pregnancy (whereas in the rest of europe it is allowed up until the 63rd day) and is administered in hospital, normally accompanied by a three-day period of hospitalisation. medical abortion should not be confused with the morning-after pill or five-day-after pill, which are emergency contraceptive drugs rather than abortion drugs.] we demand an end to administrative fines against women who resort to self-procured abortions outside of the legal time limit, because such fines constitute a deterrent to seeking medical care for women experiencing complications during pregnancy, and therefore tend to undermine women’s health and well-being. the right to autonomy should be upheld even in cases where the choice is for irreversible infertility, such as tubal ligation or vasectomy. against obstetric violence over the last 14 years, about a million italian women (21% of those surveyed) stated that they have experienced obstetric violence during labour or childbirth. obstetric violence means the effective expropriation of a woman’s body and reproductive processes by the healthcare system. this type of violence may be in the form of inhumane treatment, abuse of medication, or the pathologisation of natural bodily functions, and it undermines the woman’s autonomy and ability to make free decisions about her body and sexuality, with negative effects on her quality of life. examples of obstetric violence are derision directed at many women in the delivery room, negative judgements expressed about decisions to abort, imposing a supine position to give birth, episiotomy (incision of the perineum during labour) even when not necessary, and induced labour without consent. even refusal to administer epidural anaesthesia can be considered obstetric violence. obstetric violence should be recognised within the legal framework as a form of violence against women with regard to reproductive and sexual health. women’s freedom of choice must be ensured by promoting a culture of the physiology of pregnancy, labour, the post-partum period and breastfeeding. statistics about obstetric violence should also be compiled and published. to guarantee full autonomy during pregnancy and labour, we want to open public maternity homes[footnoteref:8] that would be run by obstetricians and also affirm that women should receive reimbursements from the national health service related to home births. [8: non-hospital medical centres designed to support women in pregnancy, childbirth and the post-partum stage. the layout of these centres resembles a home, and they are run entirely by obstetricians, ensuring not only continuity of care but also the opportunity for obstetricians, women and families to meet, train and learn.] against security-based rationales in healthcare institutions in order to avert the medicalisation and institutionalisation of interventions on behalf of women who suffer abuse, we assert that any initiative to combat violence against women should actively involve secular and feminist cavs. in fact, we believe that interventions with an exclusively assistance-based, emergency and/or repressive slant are inadequate and ultimately harmful, as they do not take into account the feminist reasoning that such violence is a structural problem. for this reason, we oppose the so-called ‘code pink’ emergency room access code reserved for women who have suffered violence, an initiative involving coordination between the local public prosecutor, regional government and health services. we argue that this programme should be reorganised completely in order to eliminate any security-based rationale that imposes mandatory courses of action,[footnoteref:9] which may be detrimental to women’s autonomy and freedom of choice. [9: the ‘code pink’ mandates the intervention of police officers or the judge where a woman has suffered violence, before she has even had the opportunity to consult with anti-violence workers and support centres. in 2019 the italian parliament approved the so-called ‘code red’ against violence, which imposes even stricter routes for complaints and more severe penalties for violation of law no. 69 of 2019 (‘amendments to the criminal code, the criminal procedural code and other provisions concerning the protection of victims of domestic and gender violence’). the criticisms of feminist organisations regarding the provision concern the repressive nature of the law which reduces women to mere objects of protection and limits their autonomy to choose alternative escape paths. ] family planning centres and feminist collectives family planning centres need to be rethought as political, cultural and social spaces in addition to their function of providing social and healthcare services, in a way that values their historical role as places set up by and for women. these centres can be re-politicised by taking back control of the service and ensuring that they are open to users across different age groups, cultures, backgrounds, desires and abilities, and encourage affirmation of the transfeminist knowledge generated and embodied by the individuals involved. we advocate a requalification of family planning centres (‘consultori’) by hiring new permanent staff members with diverse skills and professional backgrounds, so as to guarantee that each one has a full, multidisciplinary team at work. we request increased funding for the national network of family planning centres, in order to maintain a standard number of clinics per capita in both urban and non-urban areas across the country, as well as to ensure that the opening hours are sufficient to make them available to as many people as possible. family planning centres must guarantee access to free contraception; provide information about and work to prevent sexually transmitted diseases; offer free tests and screenings for all individuals; and encouraging knowledge-sharing about issues including non-reproductive practices. the centres should also provide services for women undergoing the menopause, without treating it as an illness and without neglecting the aspect of sexual pleasure. in this respect, we believe it is crucial for clinics to resume providing sex education and relationship education, services that disappeared under the reforms to school education introduced by berlusconi’s education minister letizia moratti. they should do so in schools of all types and levels, in order to refocus on the sexed body and to resist the construction of power-based relationships and heteronormative discrimination. we believe it is important to encourage the new and increasingly numerous feminist and transfeminist ‘consultorie’,[footnoteref:10] intended as spaces for experimentation, self-exploration, mutualism and a redefinition of welfare, so as to rethink and rebuild ways of spreading new self-management experiences and taking back control of services. these are places where collective action strategies can be outlined for empowerment, for combating gender violence and for advocating health and sexual pleasure. [10: we call ‘consultorie femministe’ places of empowerment, of free and conscious choices about health and sexuality. developed through a transfeminist take on the advice centres of the 1970s, these centres are not set up simply as health services, but rather as places for women to organise and take back control of their lives through a new awareness of the body and by sharing knowledge. they are therefore places to socialise widespread practices of consent, sharing responsibility with respect to male violence and harassment. they are places where sex, emotions and gender relations can be discussed among equals, where the right to personal and political transformation can be practised.] free from economic violence, exploitation and job insecurity: financial empowerment gender-based violence amidst economic crisis the economic issues of work and welfare are central to the struggle against systemic violence. there is a close connection between the ongoing move towards capitalist, neoliberal structures and gender violence, which is perpetuated in such an environment as a result of new ways of segmenting and fragmenting work, marginalisation, forced unemployment, exploitation and impoverishment; the welfare system is being gradually dismantled under the pretext of debt restructuring. these developments affect all of us, but women are hit particularly hard, as a paradigm of sexual division of labour has re-emerged with renewed intensity: this is the patriarchal paradigm, in which women are ‘naturally’ assigned the activities associated with reproduction and care, stuck once again within the confines of domestic walls or, otherwise, shouldering the double burden of work both in and out of the home, and often segregated by being offered work only in certain sectors of the economy. tackling violence in a way that addresses these larger issues means posing the question in terms of prevention; it means identifying a priori how women can be guaranteed material autonomy and self-sufficiency, which would remove them from the potential spiral of violence that often stems from economic dependence, exploitation, job instability and a lack of welfare and public services. the contemporary workplace the so-called feminisation of work in today’s world is not just related to women’s entry into the job market, but a more complex process: first, nearly all jobs are now taking on qualities that in the past were characteristic of ‘female’ jobs (including the obligation to be fully available to work at all times, work offered intermittently and often for no pay); second, specific means of exploitation have developed that put individuals themselves to work, as well as their lifestyles, their capabilities in social relations and in taking care of others. the feminist movement demonstrated how, in a capitalist system, the sphere of social reproduction[footnoteref:11] and care have become directly productive activities. however, if productive work is quantified and remunerated (albeit for ever decreasing wages), reproductive activities, which for a long time now have been much more than just domestic activities connected with production itself, are still not counted as economic output, nor recognised on a social level as work. when it is counted, or formally recognised, it is underpaid and exploited. [11: by social reproduction, we mean the set of activities that leads to the regeneration of human life in a given historical and social context; these activities are closely correlated with the dominant mode of production. reproductive labour refers to both the labour required for human reproduction (i.e. pregnancy, childbirth and breastfeeding) and the attention and care needed to sustain human life (procuring food, physical care and healthcare, education, training, social relations, emotional and psychological support, and looking after domestic spaces and goods).] in other words, the wealth we produce in many forms and on many levels on a daily basis is effectively taken away from us and not redistributed. in addition, the statistics on salary gaps, female unemployment, harassment and sexual abuse in the workplace are troubling. in italy, the gender wage gap is 43.7% (eurostat 2014), while the official female unemployment rate is 12.5% and 44% of women are not in paid work (istat, 2017). further, research in 2016 found that, 1,403,000 women between the ages of 15 and 65 had been subjected to sexual harassment or sexual blackmail over the course of their working lives. (istat 2016). the potential for sexual blackmail has risen exponentially due to the recent job market reform (especially the jobs act[footnoteref:12]): with a drastic erosion of worker rights and job contract protections, women and already vulnerable individuals are the most susceptible to blackmail in the workplace. this is all the more true for those whose work is not legally or formally recognised, and we are thus calling for immediate protections and guarantees for these individuals. also, it has not yet been fully recognised how this intensified exploitation, job instability and double burden of productive and reproductive work will impact our physical, psychological, sexual and reproductive health. [12: the so-called ‘jobs act’ reform was introduced by the renzi government with law no. 183 of 2014, and a successive series of decrees. the reform is inspired by the principle of flexibilisation of the labour market and, whilst providing for a series of incentives for hiring workers, it has also widened the basis for dismissal without just cause and de facto eliminated reinstatement in the event of unfair dismissal. ] we therefore demand: • an eu-wide minimum wage, in order to combat low pay, the systematic gender pay gap, wage ‘dumping’ (paying lower wages in certain geographical areas) and job segregation against women and migrants, which is related to women’s experiences elsewhere in the world. in the united states, for instance, a key point on the agenda has been to increase the minimum wage to $15 per hour. • a self-determination income, unconditional and universal regardless of one’s work situation, citizenship and residence status. the self-determination income should guarantee financial independence and therefore material support for women recovering from abuse (whether domestic or in the workplace). more generally, this would be an effective means of preventing gender-based violence, as it would free us from blackmail and exploitation in the workplace, from instability, from harassment. in this vein, we consider the italian government’s recently introduced ‘entry income’ scheme entirely inadequate,[footnoteref:13] as it is nowhere near universal or an assurance of autonomy and self-determination. it is instead merely a paltry measure to reduce poverty in italian households, even though, as we are well aware, the home is actually the primary place where violence originates; the government measure is not addressed at individuals and is subject to a requirement to be actively seeking work, which tends to be useful only to companies and managers as an opportunity to exploit low-cost or even free labour. [13: for a critique of the government scheme, see https://nonunadimeno.wordpress.com/2019/02/05/reddito-di-cittadinanza-una-critica-femminista-di-nudm-roma/ ] against neoliberal residual welfare spending cuts and the complete dismantling of universal welfare, which provides a safety net in the event of intermittent work or unemployment and provides real support to women recovering from abuse, makes the current socioeconomic context all the more problematic and inadequate. in this respect, we wholly reject the neoliberal model of welfare restructuring whereby women (and often migrant women) bear the burden of all the services that are no longer provided by the public sector, by means of job segregation mechanisms. similarly, we wholly reject both corporate welfare (as it is privatised welfare that is often given only in exchange for lower wages) and policies geared at improving the so-called work/life balance, to the extent that such policies reinforce, rather than fight against, the idea that women should by definition be taking care of domestic work. we therefore demand: • universal welfare, free and accessible for all, and thus not based on the current family model. it should recognise the social rights of women, as well as migrants, homosexual, transsexual and intersex individuals. the welfare system should be adapted to contemporary lifestyles, needs and relationships. it should free people from exploitative and underpaid work. public services should be free, secular and non-invasive, respecting individual choices. we think it is also crucial to officially recognise self-managed autonomous welfare structures such as anti-violence centres and feminist collectives, places founded upon feminist experiences that can subvert forms of social reproduction that impose and set rigid gender identities and roles. in our view, essential welfare measures include: restoring funding for and enhancing public services for young children, granting universal access to these services (currently, priority is given to working parents, which all too often causes forced unemployment among mothers without permanent jobs); bolstering services and infrastructure to support disabled women, as deficiencies in these areas make disabled women all the more susceptible to violence; real policies to support care for family members, the elderly and other individuals, in a manner that considers reproductive labour and care activities as an issue that concerns society as a whole, not only, and not ‘naturally’, women; more generally, building new social infrastructures to free up time in our daily lives, instead of keeping us confined within domestic walls; guaranteeing the right to housing, especially as job instability constitutes a major obstacle to procuring a stable, dignified housing situation for women and vulnerable individuals; • policies to support maternity and shared parenthood: more specifically, the unconditional extension of required compensation for parental leave (both maternity and paternity) to workers of any type (not just employees or those with an official job contract). mutualism and solidarity in order to end the fragmented, isolated contemporary workplace, we believe it is crucial to emphasise the importance, as part of feminist activities, of building new solidarity and mutual aid networks. in other words, we need to emphasise, in opposition to the barbaric culture of individualism and solitude, the power of being together, the power of supporting each other, the power of sisterhood. mutualism and solidarity are crucial in the struggle against employer retaliation tactics, against blackmail, harassment, discrimination and any other form of violence in and out of the workplace. this entails building networks that connect campaigns for mutual support; creating resistance funds for these campaigns and to aid workers in distressing situations. it entails creating spaces (drawing upon the history of feminist movements that have called for, built and run services by and for women, expropriating skills and decision-making from male dominance) that put the focus back on women’s own needs and desires, that value listening and mutual aid, exchanges of knowledge and self-training about the rights we have and the rights we want to attain. feminist strikes we think it is vitally important to continue the process that began on 8 march 2017 with the global women’s strike, a process of reinjecting meaning into the strike as a prevalent method in the feminist struggle; in other words, rekindling the idea that going on strike is a tool everyone can use, not just labour unions. strikes can involve both productive and reproductive labour; they can go beyond the boundaries between different professions and trades, beyond national borders, to unite the many faces of the job market and joblessness, rather than breaking it into even smaller pieces. we are therefore talking about strikes to voice social and political grievances, to reject neoliberal violence of exploitation and job instability, to challenge current hierarchies based on sex and gender norms and the social roles imposed by these hierarchies; it is in this sense that we call them ‘gender strikes’. free to write our own history preventing violence through feminist and transfeminist reporting the media play a strategic role in sustaining or discouraging male violence against women. the way in which violence is reported in the media informs collective perceptions, which often interact with legal mechanisms: it is deplorable that women struggling against violence are often re-victimised, defiled and discredited in media reports. the istanbul convention of 2011 recognises the media’s central role, by setting standards for ‘participation by the media’ in article 17, where the media is encouraged to work to prevent violence against women. also, recommendations addressed to italy in 2011 by the un committee for the elimination of all forms of discrimination against women (cedaw – the international treaty of the same name was ratified by italy in 1985) and in 2013 by un special rapporteur rashida manjoo, cover professional training in the media, avoiding stereotypical representations of women and raising awareness about women’s rights as ways of combating male violence against women. the documents cited above have certain limitations in common: an ‘essentialist’ definition of women, a heteronormative view of society that ignores violence committed against lgbt*qia+ individuals, as well as the lack of an intersectional perspective linking gender-based violence to violence based on class, race, age or disabilities. the present plan seeks to achieve a feminist transformation of the rationale, policies, aesthetics and rhetoric used in the media on gender-based violence, to become a tool for those working in the communications industry, to aim for an italian media that no longer expresses and perpetuates toxic, sexist narratives that only help reproduce a culture of widespread violence. for this reason, we wish to eliminate all forms of underpaid, clandestine and/or exploitative work in the communications sector. this is because toxic reporting is to some degree due to the fact that workers in the sector can easily be intimidated or blackmailed, in addition to a lack of proper training. guidelines for non-sexist reporting the principles expressed here can be transposed into a code of conduct that would hopefully be adopted by the entire media and communications sector: • violence is structural and needs to be reported as such. presenting violence as exceptional circumstances, or as unconnected individual episodes due to particular circumstances and individual factors, should be avoided. • violence stems from power disparities and is closely connected with a systematic attempt to suppress women and individuals who do not conform to gender norms. therefore, conscious use of language that is respectful of genders and women’s history should be encouraged. • violence is never an act of love: the sexist culture behind violence must be recognised, by doing away with reports of ‘a fit of rage’, ‘jealousy’ or ‘crime of passion’ to question the paradigm of romantic love and conflict between partners. • violence is ubiquitous: it is important to air reports of all types of patriarchal or heterosexist violence, that is, not to simply concentrate on the forms that are the most ‘news-worthy’ because they are shocking or obscene, such as femicide and sexual abuse. • violence is not imported: we should avoid depicting violence as a phenomenon perpetrated by men belonging to other, more ‘primitive’ cultures or to ‘depraved’ backgrounds, as this creates panic and distorts perceptions in a way that encourages the use of the phenomenon to justify racist, repressive, security-state-driven ideas. • violence happens mainly within families and close relationships: we need to challenge the rationale where assaults by strangers in public are much more likely to become news, something paralleled in films and tv series, which tend to feed the myth that the danger comes from ‘outside’. • violence does occur in public places too: however, it happens most often in well-lit workplaces, delivery rooms and migrant identification and deportation centres, not dark city streets. • violence is not a spectacle: especially in visual media, it should not be presented as normal or picturesque, or fetishised by turning violated or dead bodies into objects of erotic contemplation. • women first: anti-violence centres and feminist associations should be sought out and cited as primary sources of information, following their respectful methods of interacting with women who have suffered abuse. • women are not passive, predestined, isolated victims: we should avoid perpetuating such stereotypes and instead report on women who resist violence, on transfeminist solidarity networks. • people who have suffered from gender-based violence are never at fault: any form of blame-shifting should be avoided, such as insinuations about an inability to leave an abusive relationship or about a victim/survivor of violence ‘asking for it’ due to imprudent behaviour (behaviour that would only be considered imprudent for females and restricts their autonomy). • violence does not separate ‘good’ women from the ‘bad’ ones: portraying violence as a risk taken by women who work as prostitutes, by those with non-conformist sexual identities or simply by women whose qualities are not aligned with standard femininity, is once again tantamount to blaming and punishing those who have suffered from violence. • men who commit gender-based violence are not monsters, beasts, crazy or depressed: we should avoid depicting violent men as pathological, as this is another way of treating such violence as an individual phenomenon and diminishes the criminal’s responsibility for his act. free to move, free to stay no to racism and institutional violence, yes to intersectional feminism institutional and social racism, limitations placed on human mobility and specific violent conditions experienced by migrant women (both as migrants and as women or lgbt*qia+) are central issues that concern the entire not one less feminist movement. we started from our own lives, aware of the different positions each of us has in terms of geographic background, class, age, sexual orientation, gender identity and abilities. we want to combat all forms of sexism in its intertwined relationship with other control mechanisms such as racism and capitalism, where the same hierarchical structures are in place as those that claim to separate us into migrants and citizens. faced with this rhetoric that imposes a binary of ‘us’ versus ‘them’, we instead build alliances across the various forms of oppression, like we did in the global international women’s day strike. we therefore practice intersectional feminism: recognising that there are differences in the conditions each of us faces, we have decided to band together against patriarchal violence, racism, class-based violence and ethnic violence. taking this position means, above all, recognising that migrant women, through resistance and the rejection of racist violence, challenge the patriarchal order every day, on borders (both external and internal), in detention and deportation centres, in ‘welcome’ facilities, in the workplace and in the home. taking up the struggle together also means avoiding and rejecting any racist or security-based rationale that manipulates the phenomenon of violence against women and lgbt*qia+ individuals. so, our approach is not sector-specific but intersectional; it is inclusive of issues that migrants face, well aware that freedom of movement and the struggle against institutional and social racism are pertinent to all women’s lives. against the border system and the institutional ‘welcome’ system: freedom of movement and autonomy our demands are framed within a critique of, and opposition to, the global system of borders, as a function of the struggles and methods of resistance adopted by migrants. we demand that freedom of movement and unconditional permission to reside should be granted anywhere in or outside of europe. for this reason, we are critical of the institutional migrant ‘welcome’ system and reject the emergency-style rationale applied to the issue of immigration: this rationale renders migrant women invisible in the name of urban decorum and militarises everyone’s lives. we condemn the victimisation of migrant women because we acknowledge their daily struggles both inside and outside of our borders. we oppose deportations, detention, blackmailing migrants for residence permits, institutional racism that destabilises life for everyone, and repressive policies that marginalise trans and other non-conformist individuals. one goal of ours is to abolish italian and european laws that limit freedom of movement, starting with the minniti-orlando and bossi-fini laws,[footnoteref:14] and moving up to international border control outsourcing deals included in the dublin system[footnoteref:15] and the ‘migration compact’ as well as italy’s bilateral agreements (e.g. with libya and turkey). another goal is to abolish administrative detention in europe and in countries to which migrant detention is outsourced; to shut down the detention and deportation centres and any other structure that limits freedom of movement or the right to autonomy. we therefore call for the repeal of all legislation that criminalises migration and solidarity between migrant networks, beginning with the ‘crime’ of illegal entry and settling, as well as laws against aiding and abetting migrants. [14: the so-called bossi-fini law was introduced in 2002 (law no. 189 of 2002) with the aim of tightening the system of detentions and expulsions of migrants. its abolition has since become a shared goal of social movements, also for the conditionality that it imposes between regular work and the right to remain in the country. the so-called minniti-orlando law was introduced in 2017 (law no. 46 of 2017): it has affected the asylum system by severely limiting the right to appeal against negative decisions. in the months following the publication of the nudm plan, nudm has also criticized the immigration regulations introduced by the so-called salvini law (law no. 132 of 2018): see ‘why freedom of movement is our struggle! why we say no to the salvini security decree’ at https://nonunadimeno.wordpress.com/2018/11/20/perche-la-liberta-di-movimento-e-una-nostra-lotta-perche-diciamo-no-al -decree-safety-salvini /] [15: the dublin system provides that the member state through which the asylum-seeker first entered the eu is responsible for examining their asylum claim. ] unconditional residence permits and jus soli we want to see unconditional, unrestricted european residence permits – without any requirements pertaining to family, studies, work or income. we therefore argue that expedited and simplified application procedures should be implemented, with lower requirements for women immigrants to obtain citizenship. we oppose unpaid and/or forced labour in order to ‘earn’ the right to remain; we oppose all forms of exploitation and any hierarchy aiming to split us up and separate us. we want citizenship for all, including application of the jus soli principle to extend citizenship rights to all children born and/or raised in italy, and we demand the right for parents to reunite with children already residing in the country. we also demand that residence permits for work purposes (under article 22 of the italian consolidated immigration act) no longer be subject to verification concerning previous criminal offences. permission to stay should be guaranteed for everyone who requests it on the basis of work actually carried out, regardless of other residence rules; similarly, appropriate legal mechanisms need to be put in place for immigrants to claim any unpaid wages. against manipulation of gender-based violence to promote racist and state security policies: towards shared feminist political spaces it is necessary to end the political manipulation of ‘native’ women’s bodies for racist purposes and the manipulation of migrant women’s bodies for security purposes. it is equally necessary to liberate cities and towns from ghettoisation and gentrification, and instead build shared feminist political spaces. opposing the manipulation of gender-based violence to promote racist, security-based and nationalist policies, opposing institutional violence by the police, courts, immigration centres and border patrols, and all other devices that repress our autonomy and speech – against all this, we are building and taking back our physical places, redefining them in political, anti-sexist terms, to devise resistance and self-management strategies. we are adopting linguistic tools and struggling for greater participation by migrant women; we are organising demonstrations with them to give visibility and expression to our demands, and we are designing feminist political paths. free from environmental violence abusing the land hurts us too: fighting for the well-being of both our bodies and our ecosystems women’s bodies are not detached from the places they live in, from the land they walk on and build upon, from the relationships they forge with other bodies, human and non-human, near and far, or from the economic structures they endure and/or help create. we see a need within our plan to address the topic of environmental violence against women, against all human beings and against nature itself, intended as the biological tissues that bond us all together. we view the anthropocentric, male-neutral, heterosexual current as a patriarchal control device that attempts to pass off as ‘natural’ a system of oppression and exploitation. we will define ‘environmental violence’ as an act that inflicts harm on the well-being of our bodies and on the ecosystems we live in, through biocidal exploitation, through the use of substances that damage the health of microorganisms, plants and animals. environmental violence includes denying (through dominant concepts of security and decorum) local areas the possibility of self-determination or freedom of movement and expression. it also includes the militarisation and occupation of spaces for the exploitation of natural resources. it includes failing to recognise the interdependence of living things, and the coexistence of humans and their surroundings, by adhering to a colonial view of science that focuses on defining and regulating bodies, ethnicities, cultures, institutions of hierarchical relations and control. transfeminist spaces and activities against neoliberal exploitation from a transnational and decolonial feminist[footnoteref:16] point of view, we must begin by redesigning areas as spaces where women and all individuals can live freely and in accordance with their own desires. this implies restoring social reproduction of life and collective care as central political issues, restoring priority to bodies and their sensitivities, rejecting patriarchal and neoliberal ideas according to which such activities are solely and naturally women’s duties. we wish to embark upon a common transnational route in which transfeminist methods are exercised and exchanged with the aim of building decolonialised, peace-oriented economic policies, alternatives to the biocidal extraction policies of neoliberal capitalism, which triggers war, military action and territorial occupation in an attempt to exploit both natural and human resources. joint actions are thus envisaged with women who work locally against pollution and large infrastructure projects, in defence of better health for all. we also reassert that there is a connection between rural and urban areas, in production and distribution, in the use of resources and land, in the creation, management and protection of public goods. [16: the transnational and decolonial feminist movements are pluralistic movements that can link up with other issues and other geographical areas, thanks to leadership from many women in many different parts of the world. transnational feminism seeks to overthrow/change/supplement historical narratives, which too often remain colonial and fail to account for the experiences of non-white, non-wealthy women. decolonial feminism recognises that forms of oppression vary widely and depend on contingent conditions like geographical location, historical period, local patriarchal culture and ethnic groups; in the same way, this perspective posits that there are many different ways women can resist and struggle against oppression.] overcoming the anthropocentric model living and building networks between women’s movements across the world means taking on the responsibility to collectively envisage alternatives to the current economic system, learning from one another in cooperatively run activities and in land redesign to protect biodiversity, public goods and organic farming, as well as decolonialised urban spaces that shun the concept of dominion over nature, of the dominance of one class over another, of one people over another, of men over women and other individuals, of one species over another. given this premise, we argue that it is necessary to move away from the anthropocentric paradigm: the subjugation and exploitation of nature, of human beings and other species, and the patriarchal structure are all in fact intertwined in this paradigm’s conception of relationships as being founded on control and ownership. the anthropocentric view is that man (which has never really been a neutral term) is central in the universe, the absolute master of all around him, putting him in a dominant position over all other living beings and all balance on earth. constructing and imposing this view as ‘natural’, universally accepted and shared is the most effective way for man to preserve his identity, supremacy and power. as such, we choose an eco-feminist view to deconstruct anthropocentrism based on women’s concrete experiences. free to build feminist spaces distinct spaces that empower and liberate if we wish to cultivate time and space for healthy, safe living, we must not criminalise, repress or remove people by force. we need to renew derelict neighbourhoods, increase the number of establishments run autonomously by women, redesign and revive urban areas based on women’s needs, and build liberated spaces for all. we must blend the demands and practices of feminism, transfeminism and anti-sexism with existing mixed political spheres. at the same time, we argue for the need for autonomous places for feminist, transfeminist and queer politics, where strength, relationships and subjectification can be constructed. these places will interact with various social and political groups to build and share the tools feminism has to offer, in order to emphasise the forms of violence and hidden privileges that take place in politics. we want to push for the development of such places of feminist and transfeminist empowerment, places for reflection and collective action. we believe it is vital to build anti-sexist inroads in political groups and self-managed organisations, so as to enable us all to gain a clear understanding of sexism and violence, as well as to share ways of recognising them. it is equally crucial to combat mechanisms that negate and minimise episodes of sexism, misogyny, transphobia, homophobia and lesbophobia, and any associated complicity. we want to reassert and spread self-defence as a decisive means of growing and developing growth, awareness, power, strength, security and transformation, both personal and collective. self-defence is in fact collective action that empowers women by creating bonds of solidarity and sisterhood, overcoming the heteropatriarchal paradigm that posits women as weak, fragile victims. self-defence can be physical, verbal or psychological, depending on one’s physical traits, personal history and personality. unlike classic ‘female’ self-defence methods, feminist self-defence is based on a level playing field (it is not taught, but rather co-created) and organised by women themselves (through exchanges of apprenticeships, training sessions and the like). it triggers processes that change one’s perception of strengths and weakness, of one’s role in interpersonal relations. taking up the tools and methods of feminist self-defence, our goal is to foster self-training and reflection in these spaces, rejecting the daily expressions of sexism and working to show that violence is an issue for everyone. anti-violence centres (cavs) in the current era, marked by a major revival of patriarchal violence and virulent neoliberal politics, there is a strong need for anti-violence centres to reassert their distinctive identities to resist attacks from those who, fully aligned with the dominant culture, choose to discuss violence under a neutralised approach using institutionalised methods. we define anti-violence centres as all centres, help desks, shelters, halfway houses and other spaces occupied by and run by women. these are places with a political imprint, secular and feminist, run entirely by women with the main goals of triggering cultural and political transformation, where action can be taken against the structural dynamics that lead to male violence against women (whether cisgender,[footnoteref:17] transgender or lesbian). in this vein, cavs welcome and support individual recovery from abuse; they provide training and prevention to raise local awareness; they set up a complex system of networks designed to benefit women. a vital role within cavs is that of the worker who welcomes visitors: the professional approach of this individual must be aligned with the shelter’s political principles. [17: ‘cisgender’ refers to a person whose gender assigned at birth based on biological sex matches her/his own self-perceived identity and the gender that person wishes to be.] the cav welcome worker the centre worker who welcomes visitors is a complex figure: her training is acquired exclusively from within anti-violence centres, and her work is based on forging a relationship between women and on rejecting gender-based stereotypes and discrimination. regardless of her professional profile, she is educated in politics and feminism, including in intersectional knowledge. all women who work in shelters make up an integrated team with multidimensional skills. work is shared, with women and their relationships placed at the heart of the project by showing appreciation for their wishes. it is therefore important to acknowledge the work women do in shelters, so that the necessary emphasis on their political involvement and independence from institutions does not result in job instability and/or unpaid work. protocol and methods in cavs cavs adopt a methodology aiming towards autonomy, never assistance, based on a connection between women and on an interpretation of gender-based violence as a structural socio-political phenomenon, not an isolated emergency. each pathway to recovering from violence starts on the initiative of the woman involved. the aim is to reconstruct the events endured and to empower women[footnoteref:18] while still respecting each woman’s wishes, values and needs, without prescribing mandatory routes or steps. listening with empathy and maintaining the right distance are skills that arise from the worker’s own ability to understand and manage her own emotions, to leave room both for women’s stories and for their moments of silence, without imposing personal judgement. [18: the term empowerment has been used in the international feminist movement with reference to a process of developing autonomy and power, through two main phases. the first is the realisation of being in a state of oppression and taking control of one’s inner power and potential to make autonomous decisions. in the second phase, an individual or group of individuals pursues one or more goals that involve overthrowing the status quo and/or changing one’s condition.] in cavs, women can find someone to listen to them, a warm welcome and hospitality, as well as company, the restoration of self-esteem, internal resource activation, legal support, psychological help, parenting support, and support for financial self-sufficiency (whether directed towards training, work or home). these centres ensure personal privacy, secrecy and anonymity, and are free of charge. the entire working strategy is based on the enhancement of positive elements and on valuing each woman’s inner resources which, thanks to the change in the environment, will grow stronger. women are supported through the process of re-entering the job market, as well as in negotiating a legal separation settlement with the best possible conditions for the women themselves and for their children. these centres reject family conciliation (that is, seeking conflict resolution in a relationship) in cases where violence against women and children is present, as per the istanbul convention, and this should be considered one of the distinctive traits of our methods. resources and funding given that numerous and diverse actions are required for a concrete, effective struggle to end male violence against women, appropriate funding and resources have to be found and used in a way that benefits women; funding needs to value and support cavs. we therefore demand: • adequate resources and funding for the requirements identified by cavs themselves. public funding should provide permanent contracts to cover annual running costs. the funding contract should cover all services provided and should not be subdivided into portions. • abolition of the 30% funding limit on new cavs (as under law no. 119 of 2013),[footnoteref:19] which is currently applied without monitoring the effective needs of pre-existing shelters, many of which are closing down due to a lack of resources. [19: the table attached to law no. 119 of 2013, ‘fund for policies relating to rights and equal opportunities’ provides for 30% of the fund's annual budget to be distributed among anti-violence centers on a national basis. ] • auditing by the italian department of equal opportunities (dpo) of previous years’ expenses. • budgets for local bodies should take three-year horizons into account, so as to ensure continuity and effectiveness in projects and actions aiming to combat violence. • funding should be allocated by the dpo, not left up to the discretion of individual ministers. against institutionalisation of abuse recovery the state-regional planning committee sets minimum requirements for cavs if they wish to receive national recognition and government funding. these requirements leave a lot of room in terms of what type of organisation qualifies and who can manage one, thus allowing the setting up of ‘neutral’, assistance-based services without any specific skills and without the ability to welcome women and accompany them towards autonomy and empowerment. these requirements furthermore fail to recognise the principles laid out in the istanbul convention[footnoteref:20] and ignore the specific role and experience of cavs. [20: the preamble of the istanbul convention recognises ‘the structural nature of violence against women as gender-based violence, and that violence against women is one of the crucial social mechanism by which women are forced into a subordinate position compared to men’. council of europe convention on preventing and combating violence against women and domestic violence, 2011. ] in this regard, we argue that the definition of cavs, of the entities called upon to manage them, and of their workers’ roles and training, should reflect the principles expressed in the present plan. we also oppose the identification of structural standards and specific requirements for opening hours that are not linked to whether a shelter has the personnel to cover those hours and that have nothing to do with the qualitative factors of the task. the strategic framework presented by the dpo in september 2017 actually grants the government the right to determine cavs’ political choices, effectively excluding cavs from the control room. in the same document, it is also evident that there is a substantial inconsistency in the specific attention given to migrant women, refugees and asylum seekers for the multiple forms of discrimination they face. the policies adopted by the current administration are oriented towards security-based logic and towards pushing away instead of welcoming. lastly, by blocking the ‘italian route’ of migrant boat landings, thousands of people have been left susceptible to the abuse and violence of human traffickers. the full national strategic picture amounts to only a declaration of intent, given that there is no clarity on the financial commitments provided to cover the variety of actions envisaged. the ‘guidelines’ of the september 2017 dpo framework are exclusively security-oriented, not protective. as such, we are calling for the guideline for healthcare workers on ‘diagnostic and therapeutic treatment’ to be scrapped. although this guideline requires collecting useful information for a potential criminal case, it also provides for women to be ‘x-rayed’ and involved in an unwanted process, as soon as they discuss violence suffered at the hands of their partner, or even if they do not discuss it. this method brings back the view of women as fragile beings that need protection, who have psychological problems and need to undergo both treatment and diagnoses that could even turn out to be counterproductive for them. in this respect, we also reject the admissibility of evidence in a more cogent manner when the woman ‘in cases of suspected and/or declared mistreatment’ does not want to undergo ‘procedures to gather biological evidence’. free to be autonomous routes to empowerment and recovery from abuse violence and the right to asylum we demand and reattach political meaning to the right to asylum for women fleeing any form of economic, physical, psychological or patriarchal violence in either their country of origin or transit country. we apply a feminist perspective to fleeing from trafficking that rejects both the predominant repressive language and the idea that protecting women is dependent upon reporting themselves as victims. exploitation and trafficking are forms of systemic violence against women, sustained by the system of borders which limits autonomy and freedom of movement. we demand freedom of movement throughout europe for asylum seekers. we also oppose any reasoning that limits freedom of movement and empowerment during asylum-seeking procedures and subsequent procedures. we therefore demand: • effective access to procedures and recognition of international protection[footnoteref:21] for women fleeing any form of violence. to this end, we explicitly request recognition of women and lgbt*qia+ people as a specific social group for the purposes of international protection legislation. [21: international protection is an institution, regulated at european level as well as by the geneva convention, which provides, under certain conditions, the recognition of refugee status or subsidiary protection. in italy, the procedure that must be undertaken to gain such international protection may result in a permit of stay for humanitarian purposes. at present, despite some progress in the relevant legislation, there is no explicit recognition of women or lgbt*qia+ people as a ‘specific social group’ that is susceptible to persecution pursuant to the geneva convention. furthermore, applications for international protection based on acts of violence against women, such as domestic violence, sexual violence or human trafficking (whether in the form of prostitution or forced labour) are unlikely to be accepted by the local committees for asylum rights.] • the political choice of keeping the national anti-violence and anti-trafficking laws separate should be called into question and critically re-examined. there should instead be a feminist approach in dealing with both human trafficking victims and asylum seekers, in which the users are active agents in their abuse recovery strategies. • the legal tools for combating human trafficking should be redefined based on a view of this practice as violence and exploitation, regardless of evidence of coercion. • recovery from abuse and exploitation cannot be tackled through repressive policies; instead, a self-determination income, rights and public services must be guaranteed. • permit of stay protections should be extended to women who suffer any form of violence (as per article 18 bis of the consolidated immigration act[footnoteref:22]), including if it is episodic and including violence in the workplace, detaching this aspect from the legal or criminal proceedings and ensuring effective access to undocumented women in the country. [22: article. 18 bis of law no. 268 of 1998 provides for a residence permit for victims of domestic violence. however, access to the residence permit is conditional upon prosecution, and the definition of domestic violence excludes that deemed to be of an ‘episodic character’. ] when children witness violence women are expected to be ‘good mothers’ who never cause harm; by contrast, fathers are considered satisfactory even if they act violently – this is a clear violation of the istanbul convention. to think that violence and parental duties are separate matters causes further damage to both women and children. that is why the convention states that ‘in the determination of custody and visitation rights of children, incidents of violence [...] are taken into account’, so as not to ‘jeopardise the rights and safety of the victim or children’ (title v, article 31). cavs help to reconstruct emotional bonds to prevent or intervene in cases of aggressive behaviour, relational isolation or emotional inhibitions, so as to foster a renewed sense of safety and childhood. support of any kind cannot work unless mothers and children feel protected and the episodes of violence stop. violence often intensifies when family cohabitation ceases: children are often used by fathers against mothers. moreover, witnessing violence within the family, directly or indirectly, harms children’s ability to understand, express and control their emotions; it damages the father-child relationship and has clear repercussions on the parental relationship. a father who acts violently is not a good father. it is therefore necessary to put an end to the legal culture of reducing male violence against women to conflict within the relationship, which dismisses the essential fact that it is a form of violence and diminishes the credibility of women who suffer it. we therefore demand: • legislative amendments on shared custody (article 337-quater et seq. of the italian civil code), to declare it inapplicable in all cases of domestic violence, together with other forms of custody such as alternating custody, which cause prejudice and deny women economic rights (by losing their right to the family home and to financial support), often making them dependent upon and financially subordinate to their ex-partners, providing the latter with additional leverage for blackmail. • that paternal responsibility concerns can be grounds for removing and/or limiting joint custody. • in cases where domestic violence is involved, solutions based on internal family arbitration or other alternatives to a court settlement are ruled out. • juvenile and civil judges are prevented from relinquishing their duty to assess and reach a decision by delegating these powers to subject experts and social service personnel; in other words, decisions must not be based on psychological diagnoses of women who have suffered abuse and their consequent parental capabilities. such assessments should instead focus on the father figure, to avoid putting an abusive man on the same plane as an abused woman. • full, effective protection of minors by simplifying procedures to obtain identity documents, school places, as well as access to psychological support services and healthcare. financial self-sufficiency in work being able to seek and find work are crucial steps on the path to liberation and autonomy for women recovering from abuse. these are activities that break the feeling of isolation, that help women regain self-esteem and a better understanding of their own skills, abilities and shortcomings. finding work helps ensure true independence, especially from a financial point of view. in order to guarantee effective support towards self-sufficiency through work, it is necessary to: • set a minimum income for self-determination which provides concrete aid and speeds up the abuse recovery process and/or prevents the risk of a deterioration in mistreatment. • prohibit dismissal from work, offer help to ensure safe journeys to and from work, ensure the right to return after leave, guarantee flexibility in working hours, protect wages and suspend taxation on self-employed women. • amend legislation on leave from work due to violence (article 24 of legislative decree no. 80 of 2015), which currently rules out domestic service workers and does not ensure anonymity in the criminal justice process. it is also necessary for both employers and the national social security institute (inps) to spread the word that this legislation exists. • make a percentage of confiscated commercial goods available to women entrepreneurs. autonomy in housing in the process of recovering from abuse, the issue of housing is very important and requires sufficient solutions – not intermittent or emergency measures – that take into account external and individual socioeconomic conditions as well as various different housing options. in general, residence and domicile need to be recognised for all women, both natives and immigrants. it is then essential to adjust time frames for temporary housing in shelters and introduce measures to support housing autonomy. the current period of 3-6 months afforded to women recovering from abuse to stay in shelters is insufficient due to the deteriorating material economic conditions and to the erosion of the welfare state: these factors have made the process of recovering from abuse more difficult and more lengthy. we therefore demand: • the extension of the accommodation period in shelters to 12 months, making the timeframe flexible enough to meet the specific needs of each woman. • the separation of accommodation or transfers to a new shelter from the system of social services charges, which should not replace women in shaping their abuse recovery processes. one of the major difficulties women encounter in seeking autonomy is access to affordable housing, especially given that they are not normally offered leases without regular pay slips or other adequate financial guarantees. we therefore demand: • a nationwide extension of rome city council decision 163, which provides for a four-year rent subsidy for women recovering from abuse. for this purpose, the situation of having to leave a household to escape domestic violence should be equated, in terms of severity and urgency, with eviction notices. this measure has already been adopted with successful results in rome. • a public guarantee fund should be set up to help women obtain leases to rent a home; cavs and associations could manage these funds, acting as guarantors. • for public housing waiting lists, maximum points should be assigned to women who have just completed an abuse recovery programme in a cav. • 10% of all public-owned properties should be allocated to become semi-autonomous housing managed by cavs. free to assert and defend our rights we are free, not victims the changes that women can make by participating in processes to assert rights have always been a tool for transformational improvements, in terms of both women’s individual lives and the entire social fabric. despite women’s relentless work to recognise and stigmatise situations of violence against women, both in italy and around the world, and despite repeated ‘declarations of intent’ made by numerous political actors and institutions in courtrooms, in civil and criminal judgements, we have witnessed reactionary tendencies that blame women for the violence they suffer. this has enormous legal, psychological and social consequences, discouraging women from reporting violence for fear of facing accusations. we are witnessing the repression of women’s human rights, not only through these acts of stigmatisation and blame, but also through the criminalisation of feminist solidarity networks, and that is an extremely serious matter. it is therefore essential, also from a legal and judicial perspective, to acknowledge the work performed by women’s shelters and by women’s advocacy services in general; these entities have always given meaning and value to the autonomy and empowerment of women and defended the inviolability of their bodies. these fundamental principles should inspire action to combat male violence, which affects not just women but a diverse range of people who are discriminated against for their gender identities or choices. we advocate women acting as leaders in their own liberation from violence, sexism, gender prejudices and roles imposed by a society that is still patriarchal. in this regard, the council of europe convention on combating and preventing violence against women and domestic violence (the aforementioned istanbul convention), which italy ratified with law no. 77 of 2013, should be fully and urgently implemented in order to achieve the following goals: • recognising and combating all forms of male violence against women, including psychological and economic violence, as well as sexual harassment in the workplace, on the web, on social media (currently not officially considered violence), and the witnessing of violence endured by children. • reducing court case timescales, partly by giving priority to domestic violence cases, something not currently in place in civil proceedings and hardly ever applied in criminal proceedings. • providing initiatives that focus on the victim of the crime, not as a ‘weak’ individual that needs to be protected, but as an active individual with rights. thus, making the reporting of violence a requirement to press charges (which limits women’s autonomy) should be opposed, as should the extension to gender-based crimes of mechanisms that strip individuals of their rights (e.g. in legislation on actions taken to make amends for a crime, article 162-ter of the italian penal code, where instead of being a critical factor, the consent of the injured party is considered irrelevant). it is important to establish fair, uniform parameters for real compensation for damages that do not diminish the severity of the crime and restore dignity and prominence to women. • ensuring immediate implementation of the eu directive on compensation for damages for victims of violence, putting the burden on the state to disburse all amounts set by the courts in favour of victims in both civil and criminal proceedings, and ending bureaucratic impediments to accessing funds. free to set the record straight statistical studies, monitoring, databases and autonomous analytical tools in order to best spread awareness of the structural nature of male violence against women, we need to: • set up, at all levels, databases that will provide qualitative and quantitative information about all forms of gender-based violence (domestic, workplace, in healthcare, in detention centres and in administrative matters), providing a vital basis for policy action. • develop a map of cavs that illustrates the current supply, that meets the criteria of both national regulations and the istanbul convention, and that employs the definition of cavs asserted in this plan. • effectively monitor violence through aggregated local and national data. anonymity remains a critical issue, as it is one of the key principles and cannot be equated with typical privacy protection issues. following women through any tracking system, as certain institutions insist on doing, runs the risk of becoming a means of controlling and limiting the autonomy of women, limiting their freedom of choice and negating the policies of cavs. providing aggregate data will instead serve the purposes of understanding specific local and regional needs, conducting economic assessments with a view to resource allocation, evaluating the suitability of services offered, as well as developing prevention and awareness-raising campaigns. • establish a national feminist observatory, an independent body that would represent women and lgbt*qia+ individuals and monitor violence directed against them in the media (the press, television, radio, advertising and social media). the guidelines for appropriate representation of women and lgbt*qia+ individuals and for appropriate reporting of gender-based violence should be adopted as this body’s analytical principles. experiences of monitoring gender issues in the media in italy currently do not meet the basic criteria for effective results, as the most significant ones focus only on television, at limited times of day and/or only on samples of programmes. the quality and independence of this observatory should be supported through public funding. • create and implement shared methods of grassroots inquiry and illustration in places where full implementation of law no. 194 of 1978 (on abortion rights) is not guaranteed, as well as where personnel voice ‘conscientious objections’ in areas where there is no legal right to do so (e.g. by pharmacists). • create a database to monitor the gender pay gap, signalling wage disparities and wage discrimination, not only between men and women, but also with respect to lgbt*qia+ individuals, using diverse and broader analytical criteria (such as including non-employed people and looking at annual income instead of just hourly wages). • build a database on harassment in the workplace based on both qualitative and quantitative criteria. the data currently available vastly underestimates this phenomenon. this is because for fear of threats, blackmail, or job loss, women frequently not only fail to report incidents, but even find it difficult to talk about the situation. • launch a survey on the relationship between job instability, new forms of exploitation and health (physical, psychological, sexual and reproductive). • build a catalogue of court sentences on gender-based violence cases, enabling a continual exchange of skills and experiences between the various courts in the country. • ensure that professionals in the court system remain observant of codes of conduct with regard to exercising the right to defence, avoiding any form of secondary victimisation of women in civil and criminal proceedings. • develop methods of mapping, re-appropriating and redesigning urban spaces to renovate abandoned areas. • create maps of and publicise places where women can go that are free of sexism, gender-based violence, harassment and any form of discrimination. conclusion this feminist plan to combat gender-based violence is the product of a full year of work. yet it is more of a starting point than a finish line. it is not a script set in stone; it is an open, multifaceted field of resources put together from the intersections of many individual women, collectives, groups, local assemblies, cavs and associations. still a work in progress, it is given shape by a collective body that contains all of our anger and all of our love for the world. it arose from a desire to dream and conceive of another life, another set of human relations, societies free of male and gender-based violence, and free of the power structures, both economic and cultural, that sustain this violence. from this point forward, this plan will be a foundation for our mobilisation and struggle. we will relaunch it in the many not one less committees that have formed over the course of this year and that, we hope, will form in the future, everywhere we live and pass by – at home, at school, in universities, in workplaces, in public spaces – with an awareness that male violence and gender-based violence concern all of us, and that eliminating them will entail profoundly transforming the status quo. we will continue to leap back and forth between the public and private spheres, to question the most intimate relationships, the shapes of our bodies and our social structures. we will continue to go on strike from both productive and reproductive labour in a rejection of the neoliberal violence of exploitation and job instability. we will continue to go on gender strikes to subvert sexual hierarchies, gender norms and societally-imposed social roles. we will continue to build transfeminist solidarity networks in order to heighten the global wave of women, to break the material and symbolic borders with which they want to divide us. if our lives do not have value, then we will not reproduce this sexist society. this plan is a summary of complex analyses and proposals that have grown out of this movement over the course of the long year that has just passed. it is an important opportunity that helps us to more clearly see the lines of oppression that surround us, and the lines of resistance that can break them. we have found a collective voice and we will not stop using it. we have a plan and we are the force that will achieve it. ___________________________________________________________________________ 8 ___________________________________________________________________________ 7 roussa kasapidou “anti-racist” legislation in the greek legal order ______________________________________________________________________________________________________________ feminists@law vol 10, no 2 (2021) ______________________________________________________________________________________________________________ the introduction of “anti-racist legislation” in the greek legal order: political strategies, legalised violence and the formal protection of gender identity. roussa kasapidou[footnoteref:1]* [1: * independent researcher. email roussanw@hotmail.com ] abstract the present article follows the introduction of the much-contested “anti-racist legislation” during a particularly dark era of governance in greece. within a context of deepening crisis, absolute legitimation of state racism and institutional violence against the nation’s racial, gender, religious and sexual others, the politico-legal choice of a right-wing government to go through with this reform appears paradoxical at first glance. even more so, the introduction of gender identity among the protected characteristics seems at odds not only with governmental actions that have directly targeted trans individuals but also with the overall gender-normative imperative of the law and the hostile institutional atmosphere that mirrors and reproduces it. in view of this seemingly paradoxical legislative choice, queried here is the concrete work performed by the “anti-racist law” reform in the context in which it unfolded. utilising a broader problematisation of any legal regime’s authority to justify its own violence, it is suggested that a closer reading of the conditions under which the reform took place brings into light its instrumentalisation, during that era, to legitimise systemic racism and institutional gender/sexual violence materialised through operations against marginalised populations. key words: hate crime, racist crime, greece, gender identity, greek law 4285/2014, transphobia introduction political theorist, paisley currah (2013), in his work within the area of trans studies, has contended that a critical understanding of lgbti-related legislation commands its contextualisation within different state projects or state-level goals enabled by its introduction. currah rightfully argues that the legal management of gender and sexual identities by the state might take different, often contradictory, forms “which reflect different state projects recognition, security, surveillance, distribution, reproduction” (currah 2013: 5). this type of reading of the law, instead of relying on the legislator’s statement about what the law does, seeks an understanding of the work that is performed on different levels by the introduction of “progressive” legislation within specific socio-political surroundings. in keeping with this point, the present article sets out to re-read a much-contested legal reform within the greek legal order in proximity to the historico-political context that produced it and, more importantly, with regards to the particular work it performed. specifically, the article explores the conditions and dominant discourses surrounding the introduction of the “anti-racist legislation” (law 4139/2013 and later law 4285/2014), which refers to crimes motivated by the (perceived) characteristics of the victim including race, colour, genealogical background, national or ethnic origin, religion, sexual orientation, gender identity and disability (art. 1 law 4285/2014). in greek legislation the terms “hate motivated crime” and later “racist crime” or “crime with racist characteristics” (omitting the affective element of hate on the part of the perpetrator and focusing on the characteristics of the victim) have been used in place of the term “hate crime” that is used internationally. although, the term “hate crime” does exist in greek legal theory, it is often replaced with the term “racist crime” both in legislative texts (such as the ones studied here) and the public debates on the issue (papanikolaou 2016: 1729). accordingly, the police office responsible to receive hate crime complaints is called department to combat racist violence and the legislation discussed here is known to the public as the “anti-racist bill/law.”[footnoteref:2] [2: this echoes the common, yet highly problematic, practice in greek political culture to use “racism” “as a superordinate or ‘umbrella’ concept that includes ‘homophobic’ and ‘transphobic’ but also ‘misogynist,’ ‘ageist,’ ‘ableist,’ and classor statusbased prejudice, discrimination, and oppression, in addition of course, to that based on ‘race’ or ‘ethnicity’” (carastathis 2018b: 265; riedel 2009). this way, not only all other discriminatory practices are hidden but, more importantly, the term “racism” is completely relativised and deprived of its particular content and history. throughout the article, i maintain the problematic terms “racist crime” and “anti-racist legislation” that have been used by the legislator and have dominated the public debate. i chose to use these terms because i am referring to a specific law and not the concept of hate crime overall but, nonetheless, i do so using the terms in quotation marks to remind the reader of their problematic conceptualisation that is meant to include all recognised discriminatory practices. the term “hate crime” will be used when referring to the general legal concept and not to article 81a of the greek criminal code. ] this legislation was delivered during a period wherein (state) racist discourses and the systematic targeting of the nation’s racial, gender, religious and sexual others were instrumental tools of governance (athanasiou 2012; filippidis 2018). in order to grasp the material and affective components underlying this contradiction, the legislation is framed within the socio-political context of the greek crisis and its management. the governing regime[footnoteref:3] that enacted the formal protection of marginalised identities can be seen, in the following analysis, to have enforced, at the exact same time, a set of hostile political imperatives that commanded the social and material annihilation of specific populations. this paradoxical condition and its subtler nuances are also discussed in relation to the introduction of gender identity as grounds for protection for the first time. drawing from my research on gender variance and trans identities in the greek legal order (kasapidou 2017, 2020), in this article i examine the role of this protection that appears ambiguous when placed in a context of strict ethno-sexual hierarchies, as well as systemic and systematic racialised and gendered violence. [3: the governing coalition of antonis samaras was formed in 2012 after nea dimokratia could not secure the necessary majority to form a single-party government. with the collaboration of pasok and the democratic left (dim.ar) a coalition government was formed and stayed in power until 2015.] in view of this, the article allows the space for uncomfortable yet legitimate questions to be raised regarding the conditions under which political forces that institutionally embraced and relied upon racist, sexist and homo/transphobic hostility and violence introduced this legislation not against but as part of the strategic precarisation of populations on a state and suprastate level. it traces the reform’s particular workings, pointing towards a critical reading of the “anti-racist legislation” as a means to re-name and re-legitimise the intensifying greek (and european) state racism and institutional violence through an instrumentalisation of the concept and rhetorics of “racist crime”. the end of the world as we know it more than a decade since the financial crisis of 2008-2009 and its aftermath, it has become rather tiresome to try capturing the greek crisis in a few words, whether for academic or other reasons. what is crucial for, even vaguely, comprehending this period is that the term “crisis” has come to include, other than the financial crisis itself, the devastating effects of the management of the crisis and, eventually, more than one crisis (the debt crisis, the “refugee crisis”, the legitimation crisis of political parties and so on).[footnoteref:4] a few of the instances marking the last decade are the collapse of the decades long political regime, the imf intervention, dramatic austerisation, multiplying percentages of unemployment, thousands of unaccounted for deaths along the country’s borders, militarised police operations against anomie, a surge in racist violence and the election of the neo-nazi golden dawn party in the parliament. greek commentators have repeatedly noted that, as impressive as the quantitative and statistical representation of the last decade of austerity might be, it proves insufficient to describe the catholic nature of its political, financial, social and emotional effect on a ground level (tsilimpounidi 2016: 2; roufos 2018; vaiou 2014). with capital destruction climbing to levels equal to those faced by european countries after world war ii and no part of life in greece left untouched by the shifting conditions, the crisis early on “forcefully illustrated how it would shake to the ground our world as we knew it” (brekke, filippidis & vradis 2018: 13; roufos 2018). [4: for critical accounts of different periods and aspects of the greek crisis see: vradis & dalakoglou (eds.) 2011; athanasiou 2012; kaika 2012; athanasiou & tsimouris (eds.) 2013; tsilimpounidi & walsh (eds.) 2014; brekke, dalakoglou, filippidis & vradis (eds.) 2014; leontidou 2014; bratsis 2016; tsilimpounidi 2016; dalakoglou & agelopoulos (eds.) 2018; roufos 2018; brekke, filippidis & vradis 2018. ] by 2010, the first memorandum[footnoteref:5] had been signed and, while the crisis was deepening, the period 2008-2012 was also marked by the rise of social movements that were resisting austerity and cultivating a radical culture of political organisation (bratsis 2010; vradis & dalakoglou 2011; arampatzi & nicholls 2012; leontidou 2012; tsilimpounidi & walsh 2014; athanasiou 2014). following the polymorphous political mobilisations that made greece a focus point for the european and global left, a new dogma of public order and security started materialising through extreme policing techniques and militarised repressive operations (dalakoglou 2013; kotouza 2018; filippidis 2018). the perpetually re-constructed state of emergency became the discursive vehicle for the introduction of the dogma of “zero tolerance” that became central in the dismantling of political movements, the battling of civil disobedience, the securitisation of public space and the biopolitical management of migrant populations (athanasiou 2012; filippidis 2018). this new national narrative eventually shaped into a set of discourses and ideological apparatuses that, in turn, materialised in various settings. that is, more than a fiscal impasse and an occasion for structural reform, the crisis became a political paradigm and an ideological framework that drastically reconfigured socio-political conditions (athanasiou 2012; brekke, filippidis & vradis 2018). [5: the term “memorandum” refers to the adjustment programme documents (memorandum of understanding, mou) signed by greek governments as part of the bailout loans and financial support by the european commission, european central bank and international monetary fund (altogether known to the greek public as the troika). within the crisis lexicon, the term “memorandum” has become a metonym for harsh austerity measures. along this axis, political powers have been conceptualised as “pro-memorandum” and “anti-memorandum” depending on their stance towards european institutions’ terms of negotiation concerning the greek debt and structural reform. ] other than state policing and anti-migrant operations, 2012 brought an amplification of street-level racist violence but also a broad legitimisation of its mainstream political expression. golden dawn was elected in the parliament and went from a small, militaristic, neo-nazi faction to being recognised as a socially accepted power of parliamentary and street-level politics (dalakoglou 2013; ellinas 2013; athanasiou 2014; psarras 2015). the increasing flows of people arriving along the south and east borders of the country were used as pretext for the transformation of an openly anti-migrant sentiment into everyday violence.[footnoteref:6] during 2012-2014 and building upon the previous year’s violent legacy,[footnoteref:7] paramilitary groups of golden dawn patrolled specific areas of athens. this routine included “cleansing” neighbourhoods of migrants, destroying non-greek-owned shops, raiding houses and unofficial mosques, terrorising migrants through violent – sometimes even lethal – assaults (human rights watch 2012; dalakoglou 2013, jail golden dawn 2014a; carastathis 2015, brekke 2018).[footnoteref:8] at the same time, the state launched a series of anti-migrant operations with the largest one being the – staggering in its size and violence – operation “xenios zeus” that will be further discussed later (filippidis 2018). [6: that is not to say that racist ideologies and violence did not exist before the crisis in greece. carastathis (2015) notes that analyses which establish a cause-and-effect relationship between the crisis and racist imperatives tend to ignore not only the nationalist project that has constructed the greek nation as homogenous during the twentieth century (rasku 2007: 43; fokas 2008: 12; roudometof 2011: 97) but also the contemporary legacies of racism within greek society. such examples are the racism against migrants since the early 1990s along with their systematic exploitation (including the sexual exploitation of women migrants from cee and later african countries), the rampant anti-albanian discourses and violence, as well as the socially legitimised anti-roma stance (carastathis 2015: 81). nonetheless, the new ideological elements of the crisis political vocabulary and the rapid increase of violence on the streets can be said to mark a paradigm shift within greek racist legacies.] [7: in the spring of 2011 an anti-migrant pogrom broke out in the athens city centre. this violent outbreak followed the murder of a greek citizen during an armed robbery and consisted of several days of mob attacks against migrants by golden dawn battalions (including some of the later to be parliamentarians) and other citizens, leaving one dead and more than 120 injured (mac con uladh 2014; jail golden dawn 2014a). after five years, the entire case concerning those days was dropped and no one was accused of any crime (jail golden dawn 2016). ] [8: the project “x them out! a black map of athens” (created by the rosa luxemburg foundation-office in greece and the ngo humanrights360) has generated an interactive map of athens wherein x marks the spot of racist attacks, whose brief description is accompanied by illustrations of the incident designed by visual artists collaborating with the project. although the project can “visualise just a small part of this ‘topography of violence’” the stories and images succeed in transmitting part of the affective imprint of the rise of fascist violence in the city (valtousx website). furthermore, “simeio,” an initiative for the study of the extreme right wing, offers a calendar that marks such actions both on the institutional terrain and in the public space (simeio website). as noted above, these records are indicative since there is no way one could chart this kind of diffused violence in its entirety.] right-wing street-level and institutional racist violence on such a massive scale were legitimised through a variety of overlapping discourses concerning internal and external threats to the state’s sovereignty and the nation’s health and homogeneity (athanasiou 2012). as feminist and other critiques have demonstrated, such violence and precarity were distributed along (among others) the axes of race, gender, sexuality and national belonging, thus, producing intersections of intensified vulnerability (athanasiou 2012, 2014; vaiou 2014, 2016; carastathis 2015; 2018a; tsilimpounidi 2016; filippidis 2018). racist, sexist and homo/transphobic rhetorics and practices flourished while their relationship with the crisis was presented as causal, transferring the responsibility to those who were deemed as a threat to the national body (athanasiou 2012; carastathis 2015). moral panics and hostile discourses towards racial and gender “others” became entangled with the technocratic crisis management in ideological formations that legitimised the “reinvigorated routine of national masculinity” as a means of protection and resistance against internal and external threats (athanasiou 2012: 38; carastathis 2015; papanikolaou 2018). at the same time, the conditions of existence of lgbti+ and queer politics started changing at an accelerated pace. that is, simultaneously with the unfolding of the crisis and the rapid worsening of material conditions, ran a parallel process of lgbti+ visibility in new terms (papanikolaou 2018). while the political generation of lgbti+ and queer groups of the period 2000-2010 was characterised by the effort to claim legitimisation and space within social movements and the public sphere, these dynamics gradually started changing alongside the shifts in broader political dynamics (marinoudi 2017). the eruption of social movements and, later on, the emergence of ngos and other civil society actors, partly due to the “humanitarian crisis,” were rapidly transforming lgbti+ politics and its place in the national political agenda. moreover, new digital media platforms and the international cultural and political currency of lgbti+ and queer identities had opened up a vast horizon of possibilities. in this time of proliferation of ngos on a national level (theofilopoulos 2018), the transnational mobilisation of policy-oriented greek lgbti+ groups and the channelling of funds and institutional support towards lgbti+ issues on a european level formed a new political terrain.[footnoteref:9] the gradual inclusion of some lgbti+ issues in the parliamentary political agenda was to a large degree enabled by the european institutional common ground of perceiving lgbti-related legislation as a mark of “progress” and an obligation for states that are (or want to become) european (kulpa [2011] 2016; stychin 2003; binnie 2004; kahlina 2015).[footnoteref:10] overall, other than the space that was being established through political action and social presence, lgbti+ groups started to claim a new role as lobbying agents within law-making procedures taking the first steps into a more professionalised kind of politics. [9: reports on the issues of lgbti+ discrimination had already started to be commissioned and published by european institutions (such as the european union agency for fundamental rights) reporting the lack of any infrastructure, research or legislation in greece (hatzopoulos 2007, 2010; pavlou 2009).] [10: in recent years, for countries on the margins of europe, the adoption of gender equality legislation, and more recently lgbti+ rights, has been one of the ways of establishing themselves as “civilised”, meaning european, states (stychin 2003; binnie 2004). this has created a complex weaving between gender/sexual rights and europeanisation/modernisation discourses and the state-specific historicities of such discourses (kulpa & mizielińska (eds.) [2011] 2016; kahlina 2015; bilić (ed.) 2016).] this means that in a complex collusion of socio-political currents, lgbti+ politics slowly started to be institutionalised and included in the mainstream political and legislative arena while, at the exact same time, the grim political conditions were becoming fertile ground for a revitalisation of gendered violence and a renewed investment in gender hierarchies that contested the articulation of lgbti+, queer and feminist politics (athanasiou 2012; vaiou 2016; papanikolaou 2018).[footnoteref:11] dimitris papanikolaou situates this collusion within a global fragmented tale of “progress” in which lgbti+ legislation and recognition are granted “yet, in a parallel development, and often in the very same ‘locations’, homophobic, ethnophallocentric and homonationalist apparatuses work to undo, sometimes in spectacular ways, these achievements” (papanikolaou 2018: 170). it is precisely the recognition of such a “parallel development” that demands a critical reading of the law; that is, an interrogation of the work performed along and through the introduction of a piece of “progressive” legislation, such as the legislation against “racist crime,” in the specific historico-political context that enabled and enclosed it. but first, let us trace how this reform came to be and what it pertained to. [11: an exemplary moment was the violent protests of 2012 against a greek production of terence mcnally’s theatre play corpus christi, wherein jesus and his students are depicted as homosexuals. the play was repeatedly protested and, on the scheduled premiere, the theatre (chytirion) was besieged by orthodox christians and golden dawn members (including some of its main parliamentarians). the mob verbally and physically assaulted the crew as well as the audience and those who had showed up in solidarity with the attacked, while the riot police that had been positioned outside the theatre were characteristically apathetic (baboulias 2012; ekathimerini 2012). based on the fact that the director, laertis vassileiou, was of mixed (greek and albanian) origin, the attackers’ discourses gravitated towards anti-homosexual and anti-albanian hatred, creating an explosive amalgam of ethnophallocentric discourse that reeked of sexual violence and death (papanikolaou 2013; 2019; carastathis 2015). after two scheduled premieres being protested and with the director and crew receiving threats against their life and their families, the play was cancelled. the director was repeatedly threatened, followed and, in 2014, assaulted, to the extent that he was forced to permanently leave the country as it became impossible for him to live and work in greece (dimokidis 2020). ] “racist crime” it was within the above-described turbulent era of violence, precarity and dispossession, but also intense socio-political mobilisation, that a reform of the greek “anti-racist legislation” was initiated. in 2011 and with anti-migrant violence on the rise, the racist violence recording network (rvrn) was founded as an initiative of the national commission for human rights and the unhcr-greece with the participation of various ngos and other institutions.[footnoteref:12] furthermore, by 2012, the mainly right-wing governing coalition was faced with international pressures concerning the rise of golden dawn and the unprecedented surge of violence that was bringing negative attention from international press and european institutions.[footnoteref:13] in response, the government attempted to strengthen the legal framework concerning the criminal prosecution of hate crimes. specifically, law 4139/2013 amended article 79 of the criminal code according to which the commission of crimes motivated by hate towards specific characteristics constituted aggravating circumstances and, under the amended provision, the threatened penalties could not be suspended (fountedaki 2014). it is worth noting that the term “gender identity” (ταυτότητα φύλου), as such, was introduced for the first time in the greek legal order as a protected characteristic under this law, initiating, at least in theory, a different era regarding the legal protection of trans individuals.[footnoteref:14] [12: the rise of racist violence during this era is noted in the first annual reports of the rvrn (e.g. rvrn 2013) as well as the 2013 report of the commissioner for human rights of the council of europe, nils muižnieks [commdh(2013)6: 6-8]. nonetheless, this estimation is not based on statistical evidence per se as there is no official data recording hate crimes prior to this period. any quantification of this rise, based on the existing data, cannot even approximate a statistical depiction of reality, as greece is among the european countries that least keep and publish such official data (fra 2012). for example, for the year 2012, the rvrn (2013) recorded 154 incidents of discriminatory violence; a number that, of course, cannot mirror the erupting violence of that period, which i will try to convey in more detail in the next part of the article. furthermore, once it is taken into account that police officers are involved in a significant percentage of such incidents (papanikolaou 2016: 1750-1753), the under-recording appears rather self-explanatory. in their analysis of the legislative framework, both pelagia papanikolaou (2016) and anastasia chalkia (2016), offer a comprehensive breakdown of how limited the reported data is and what it consists of. moreover, as papanikolaou (2016) rightfully notes, due to the lack of a central, comprehensive system of recording hate crimes, the actors that collect and publish data apply methods that differ depending largely on their political stance (papanikolaou 2016: 1753). ] [13: see for example the 2012 bbc article, ‘greece wrestles with rise in hate crime’ (shevchenko & athanasoulia 2012); the 2012 new york times article, ‘greece's epidemic of racist attacks’ (cosse 2012) and the 99-page report of human rights watch, hate on the streets: xenophobic violence in greece (human rights watch 2012). ] [14: the two preexisting provisions (law 3896/2010 for sex equality in matters of employment and law 344/1976 as amended by 2503/1997 regarding the amendment of the birth register) used the term “sex-change” to approximate a definition of the characteristic or identity protected by the law. even though the original english text of the 2006/54/ec directive (recital 3), which was adopted through law 3896/2010, used the term “gender reassignment”, in greek it had been translated as “sex-change” (αλλαγή φύλου/allagi fylou).] following the passage of law 4139/2013, the undisrupted increase in violent attacks (including stabbings, arsons, etc.) towards marginalised groups amplified the international outcry over the lack of prosecution of such attacks and, especially, of the activities of golden dawn. in january 2013, the murder of shehzad luqman, who was targeted on his way to work by supporters of golden dawn due to his migrant origin, brought some publicity to the reality of – usually unresolved and often unprosecuted – murders of migrants in athens during that period (jail golden dawn 2013; enet english 2014; jail golden dawn n.d.). following the murder of luqman and its aftermath, the department to combat racist violence was established within the hellenic police as well as a hotline for complaints. only a few months later, the murder of anti-fascist rapper pavlos fyssas by a golden dawn supporter shook public opinion once more (jail golden dawn 2015). the murder of a greek citizen and a militant anti-fascist resonated differently with social and political actors compared to years of anti-migrant violence, mobilising more intense protests on a national and international level (carastathis 2015). this moment was the turning point at which the minister of public order and citizen protection (n. dendias) forwarded to the public prosecutor a file including several cases of similar attacks which implicated golden dawn members, thus instigating the criminal investigation that led to the arrest of the party’s mps for organised criminal activity (psarras 2015). even after the initiation of the monumental judicial process against golden dawn in 2013,[footnoteref:15] the further strengthening of the legal framework against “racist crime” remained a strongly articulated demand of international actors as well as the national left-wing forces.[footnoteref:16] therefore, the government was forced to renegotiate the introduction of what was widely known as the “anti-racist bill” (αντιρατσιστικό νομοσχέδιο) that had already been postponed in the past. the public debate concerning the “anti-racist legislation” was, since the beginning, a battlefield and the political crisis woven around it was so severe that its introduction to the parliament for voting was postponed several times, extending the entire procedure over more than two years (meliggonis 2013; kitsantonis 2013; sotiropoulos 2014). [15: the entire process including the trial lasted up to october of 2020 when the courts found several members and leaders of the party guilty of the formation of a criminal organisation and separately for several assaults with weapons, manslaughters and other crimes (jail golden dawn 2014b; psarras 2015; golden dawn watch n.d.; ekathimerini 2020; papadopoulou 2020; kampagiannis 2020). ] [16: see for example the 2013 guardian article, ‘greek coalition in crisis talks over anti-racism bill’ (smith 2013); the 2013 economist article, ‘the greek far right. racist dilemmas: greece needs a more robust anti-racism law’ (the economist 2013) and the 2013 report of the commissioner for human rights of the council of europe, nils muižnieks, following his visit to greece from 28 january to 1 february 2013 [commdh(2013)6]. ] the public debate concerning the “anti-racist bill” was largely formed around the resistance on the part of golden dawn and other conservative forces (zoulas 2014). other than the overall anti-migrant stance of several political forces, two of the main points of conflict around which the political opposition to the bill was framed were the intention to supposedly protect homosexuality (by including sexual orientation and gender identity in the protected characteristics) and the criminalisation of the denial of the holocaust, war crimes and genocide – specifically whether particular historical instances of mass violence that have been recognised by the greek parliament as genocides (such as the systematic killing and exile of christian populations by the ottoman empire) would be considered as legally recognised genocides and thus protected under the purview of this law. hence, racist, homophobic, anti-turkish and anti-semitic discourses simultaneously flooded the public debate over the suggested legislation, adding to the systematic and systemic violence of this period. finally, the bill passed after intensifying political pressure and only in the aftermath of a government scandal including the ruling party (nea dimokratia) and golden dawn members, which basically exemplified the deep political ties between the two parties and several of their members (psarras 2015: 33).[footnoteref:17] [17: the “baltakos scandal” consisted in the public disclosure of secret communications concerning golden dawn’s prosecution between the general secretary of the government, panayiotis baltakos, who was forced to step down, and leading golden dawn member ilias kasidiaris (psarras 2015: 33). for details and transcript of the published video, see mac con uladh 2014. ] the resulting law, law 4285/2014, was adopted in order to transpose the european council framework decision 2008/913/jha of 28 november 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. it replaced article 79 of the criminal code with article 81a, thus providing a new legislative framework wherein “racist crime”[footnoteref:18] constitutes a crime of its own (hence the separate article) instead of just an aggravating circumstance (voulgaris 2015; symeonidou-kastanidou 2016; chalkia 2016). the revised provision rendered more severe minimum penalties for what are characterised as “racist crimes” while maintaining sexual orientation and gender identity among the protected grounds. moreover, article 1 of the same law criminalised incitement to acts of discrimination, hatred or violence (but not hate speech per se), an issue that has given rise to debates concerning free speech.[footnoteref:19] law 4285/2014 also provided for the liability of legal persons or groups of persons, thus providing legal protection from unities such as political parties (article 5) as well as threatening harsher penalties in cases of such crimes committed by public officials or employees (article 1). that was considered important to the extent that the public comments that fall under the purview of this provision were often made on the part of politicians and clerics (ecri 2015).[footnoteref:20] [18: law 4356/2015 amended this article using the term “crime with racist characteristics” and replacing the subjective ground of hate, included in law 4285/2014, with the choice of the victim according to certain characteristics. recently the threatened penalties for such crimes were somewhat lowered by law 4619/2019. ] [19: see smith 2014. ] [20: for such institutional “hate-speech” during this period see ecri 2015: 17-22.] overall, the introduction of the new legislation against “racist crimes” touched upon the very heart of the on-going political conflicts within greek society and was placed at centre stage of the national political agenda from the outset of its negotiation. more importantly it posed, in the clearest of ways, questions concerning the way “progressive” legislation should be read in specific historico-political settings. in this direction, the next part will exemplify some of the ways the political imperatives of the specific regime crystallised on the ground through various state apparatuses and ideological discourses. by analysing concrete instances of governance, it will sketch out the state agenda of that time and the centrality of racist and sexist violence within it, thus marking the choice of that particular government to fortify the legislation against “racist crime” as paradoxical at first glance. in this sense, the following section is a rather significant parenthesis that serves to demonstrate what kind of political forces introduced this legislation into the greek legal order and why that raises legitimate questions. it serves, that is, to complicate and ground, politically and even affectively, the analysis of “anti-racist legislation” within its context and to start drawing lines between hostile political imperatives, racialised as well as gendered violence and “progressive” legislation. in parenthesis can we read the workings of social power precisely in the delimitation of the field of such objects, objects marked by death? and is this part of the irreality, the melancholic aggression and the desire to vanquish, that characterizes the public response to the death of many of those considered “socially dead,” who die from aids? gay people, prostitutes, drug users, among others? if they are dying or already dead, let us vanquish them again. and can the sense of “triumph” be won precisely through a practice of social differentiation in which one achieves and maintains “social existence” only by the production and maintenance of those socially dead? (butler 1997: 27). in 2012 and during a period of intense political instability in greece, the provisional coalition government of nea dimokratia/pasok/laos launched a series of nightmarish “cleansing” operations against the “infectious” bodies of racial/gender/sexual/national others under the orders of the minister of health, andreas loverdos (mavroudi 2013). loverdos, a constitutional law expert himself, as minister of health had been strategically fleshing out for months the figure of the “illegal immigrant” as a threat to public health, infamously known in public opinion as a “hygienic bomb” (filippidis 2018: 79-82). furthermore, the minister of health had gone one step further in gendering this discourse by declaring, against all statistical evidence, that female migrant sex-workers of african origin were spreading hiv within greek society and should thus be deported (athanasiou 2012: 31, mavroudi 2013). as filippidis notes: (…) using the safeguards offered to him by the dominant patriarchal meanings he utilised the field of female sex work in particular in order to construct the image of a biological enemy within; to construct, in other words, only one of the crucial “testing grounds” upon which the reconstruction of national unity would be attempted during that difficult time of crisis – and the nation-rebuilding this required. (filippidis 2018: 82) after cultivating for several months racially oriented fear in its purest form (that which involves physically invasive and biologically infectious others), loverdos, in a joint press conference with the minister of public order, michalis chrysohoidis, announced the compulsory hygienic examination of migrant populations following all possible procedural and discursive routes that could imply urgency (filippidis 2018: 82-83). sowing panic and reaping legitimation, loverdos introduced on the same day the notorious public health decree 39a, which included provisions introducing forceful hygienic controls on migrant populations, the construction of migrant detention camps, health requirements for private houses used by migrants, a health certificate issued for migrants and other similar regulations.[footnoteref:21] [21: public health decree 39α was repealed in 2013, only to be reinstated later in the same year until 2015, when it was abolished again.] this became the legal ground for the collaboration of public health and police authorities in a medico-legal mechanism of population control that expanded from detention centres along the territorial borders of the country to the very centre of athens and all the way into the supposedly private space of migrant residences (filippidis 2018). moreover, it became an additional political ground for the intensification of racialised daily violence and the fortification of (state and other) discourses of racism in its primordial form, that of biology. through this nosology lexicon, that is, through “the return to the political anatomy of the body: the governing of the body in danger and the governing of the dangerous body”, medicalised racism and the overall medicalisation of the crisis itself were established as a dominant governance paradigm (athanasiou 2012: 45). having set the ground for the exemplary “biological enemy within”, that is, female, african, allegedly seropositive sex-workers, loverdos orchestrated in the eyes of the public the worst-case scenario for the national body (filippidis 2018: 82). a few days before the crucial national elections of 2012, in a police-hygienic operation that came in waves, hundreds of female alleged sex-workers were rounded up on the streets of athens and forcibly tested for hiv (mavroudi 2013). held under gruesome conditions, the women were tested (using what is called “rapid tests”) without or against their consent in various locations such as vans or police cells. the outcome was blurted out to them in the presence of the police or by the police themselves (mavroudi 2013).[footnoteref:22] those found seropositive were arrested and prosecuted under the charges of illegal prostitution and serial grievous bodily harm with intent, combined with serial attempts of the same act; a felony charge that led to their pre-trial imprisonment without any evidence other than seropositivity, which can hence be claimed to have been openly criminalised (mavroudi 2013; gkresta & mireanu 2016). the state prosecutor, in collaboration with the hellenic centre for disease control and prevention (κεελπνο), ordered the publication of their photographs and personal information in the name of the greek family and public health and, more specifically, to “protect the greek family men” who might have been in contact with them (psarra 2012a; athanasiou 2012; mavroudi 2013; gkresta & mireanu 2016). [22: of course, the entire procedure of non-confidentiality or the performance of medical acts in police stations goes against all relevant protocols (georgiou in mavroudi 2013). ] in a general atmosphere of emergency, the minister announced to the greek society the verification of his gruesome prophecy: the hygienic bomb of aids in no longer confined within the foreigners’ ghetto as was the case until recently, it has now escaped the ghetto. me personally but also all the competent authorities have tried hard to prevent this, to not allow it to escape. that is why i kept shouting during the last months: don’t sleep with illegally prostituted [sic] foreigners (loverdos quoted in karlatira 2012). after every sweep, the photographs of the newly arrested women would be displayed in the media in an atmosphere of cultivated “terror” along with hotline numbers available for the “greek family men” who were the imaginary collective victim of the crime for which the women were being persecuted.[footnoteref:23] the media led an extreme ethico-hygienic panic campaign using the mugshots of the women, who found themselves at the centre of an emblematic moment of biopolitical regulation through a raceand gender-informed nosology (athanasiou 2012).[footnoteref:24] [23: thousands of calls flooded the lines from worried customers who had paid a little extra (for example 10 instead of 5 euros) for unprotected sex with the women they recognised in the media, while it was clear that “the health of these women themselves was of no concern at any point” (gkresta & mireanu 2016). ] [24: most of the women remained in prison for several months although none of their alleged clients had come forward to press charges. all the women suffered great consequences in mental and physical health as well as a complete annihilation of their (and their families’) social status in public and especially in their places of origin (mavroudi 2013). the authorities maintained that they acted in full compliance with the law and did not violate any person’s rights, thus, dismissing the complaint filed on behalf of some of the persecuted women. by 2016, all of them were pronounced innocent in court. unfortunately, four of the women were not alive to witness the trial (vovou 2016). two of the women, maria and katerina, committed suicide (protovoulia allileggyis diokomenon orothetikon gynaikon 2013; mpotsi 2014; vovou 2014). katerina’s father had lost his job and had attempted suicide himself in the aftermath of the events. katerina before her suicide had written in an announcement concerning their case that “the damage that was done to us will follow us and our children forever” (quoted in vovou 2014).] in reality, none of the seropositive women arrested in the whole series of operations was of african origin but the majority were greek nationals and often users of intravenous illegal substances (mavroudi 2013). filippidis (2018) notes: however, behind these imaginative spatial-ideological constructions of loverdos we have to discern the facts and insist on two critical points. firstly, on the fact that if something should undoubtedly concern us about its horrific extent that is none other than the promotion of sexism as the basic condition of public discourse and, after all, of politics itself. secondly, on the very turn of the operation in question that would categorically contradict the minister, proving that his statements were not characterised by any prophetic quality; to the contrary, they were meticulously constructing a field of police-political intervention, attempting to pathologise a priori the presence of migrants in greece. (filippidis 2018: 85) indeed, the racist and anti-migrant elements of this debate were not in any way mitigated by the fact that the hypothesis of the minister about african seropositive sex-workers was actually disproved by the outcome of the operation. on the contrary, the entire operation was considered a success, leading to the re-election of nea dimokratia and, specifically, of the politicians involved. namely, this operation formed part of the greek state’s “continuous war on undocumented immigration” (gkresta & mireanu 2016: 228) in which “these particular women lent momentarily their face to the necessary, in view of the elections, internal enemy” (psarra 2012b). the seropositive persecuted women became the metonym of the infectious other for the greek state, media and society who were invested in their social death (athanasiou 2012). as mentioned earlier, the “triumph” of this operation on the communicational front assisted in the re-election of the politicians involved and, most importantly, of nea dimokratia who, relying on the social acceptance of its anti-migrant agenda, formed a new coalition government (nea dimokratia, pasok and the democratic left) and, only a couple of months later, launched one of the most massive operations of population control in modern greek history. this pogrom-like operation, officially named xenios zeus (hospitable zeus), was initiated in august 2012 and amounted (among other things) to a series of police raids in public and private spaces (including houses) that radically changed athens as a city. the extent of the operation itself is difficult to conceive: until february 23, 2013, which was also the last time when the greek police published the number of detentions as part of the operation in question, 84,792 migrants had been officially detained. the police announcements were no meretricious exaggeration. the “xenios zeus” operation continued in central parts of athens for almost two years, having led to the arrest of 5,611 migrants in total who “did not meet the legal criteria for their stay in the country” (filippidis 2018: 86). during that period, athens became an atrocity playground for the hellenic police which, along with golden dawn battalions, indulged in a racist power trip that included racial profiling, physical violence, torture, disappearances, extortion, illegal detention and other similar practices (human rights watch 2012; human rights watch 2013; amnesty international 2013; crisis-scape website; simeio website; valtousx website).[footnoteref:25] [25: additionally, for police violence in greece see indicatively the amnesty international report “police violence in greece: not just ‘isolated incidents’” (eur 25/005/2012) and the article “the killing of zak: the astonishing violence and impunity of greek police” (alevizopoulou & zenakos 2018). ] although the operation was targeted towards migrant populations, the normalisation of this control regime, as shown by the persecution of the seropositive women, was largely invested in “(re)constructing national identity and national integrity” against and through all others in racial, gender, sexual, religious and other terms (filippidis 2018: 79; athanasiou 2012). in this sense, the concept of the enemy within was broadened in order to “include all vulnerable social groups (migrant men/women, homeless men/women, drug users, trans people, male sex-workers, female sex-workers), as it [was] exemplified by the mass arrests taking place on an almost daily basis” (protovoulia allileggyis diokomenon orothetikon gynaikon 2012). what becomes clear is that whether in the case of the persecuted seropositive women in athens or in the case of the xenios zeus operation, the construction of other bodies as infectious and, thus, dangerous for the national body, legitimised (and was legitimised by) state practices that were informed and relied upon discourses of racist, sexist and heteronormative dominance. in that context, as it has been demonstrated, the “anti-racist legislation” was introduced by and within an institutional order wherein nosological discourses, state racism and gender abjection were clearly crucial instruments of governance, that is, not only for the ideological re-legitimisation of national(ist) values and state sovereignty but also for managing populations and distributing socio-fiscal precarity (athanasiou 2012: 31). in other words, this section goes to show precisely which government, and in which historical moment, graced (even unenthusiastically) vulnerable groups with legal protection against “racist crimes” and why that raises various questions. one of the issues i want to pursue here pertains to the introduction of gender identity among the protected characteristics and the manner in which such a gesture can (or cannot) resonate with the conditions of transphobia and hetero-sexist violence within the national context. specifically, i want to explore the juxtaposition between the legislative enunciation of gender identity protection and the strict gender normative imperative of the greek institutional order; an imperative that might be crystallised in concrete institutional actions but is equally present even when not explicitly evoked, thus creating an environment that is overall inhospitable. protecting gender identity in a context of intensifying violence, the “anti-racist legislation” was picked up, soon after its enactment, by lgbti+ lobbying groups in an attempt to produce litigation concerning high publicity cases of homophobic and transphobic speech. to that end, various activists and ngos attempted to use the new provisions to mobilise judicially against state and para-state actors, mainly on the grounds of public incitement of hatred and violence (dimitras 2017). moreover, the introduction of structures for reporting “racist crime” led to a small number of individual complaints for violent attacks and other similar incidents (rvrn 2013, 2014).[footnoteref:26] the judicial outcome of such cases was usually disappointing, as described in the joint submission made to the prosecutor of the highest greek court (areios pagos) by the greek helsinki monitor (ghm), athens pride and thessaloniki pride, arguing a systematic lack of prosecution of homophobic crimes regardless of the existing legislation (dimitras 2017).[footnoteref:27] the ghm, the minority rights group-greece (mrg-g) and the coordinated organisations and communities for roma human rights in greece (sokadre), in a submission to the european commission against racism and intolerance (ecri), made similar arguments about the non-application of the “anti-racist legislation” regarding various affected groups (tsarnas 2017). both documents include incidents wherein orthodox church representatives, politicians, the hellenic police, prosecuting authorities and other institutions (civil courts among them) have engaged in behaviour that was blatantly in violation of the “anti-racist legislation”. nonetheless, most of these cases either failed to be prosecuted or their prosecution was discontinued (“archived”) by the authorities, or they were dismissed in court.[footnoteref:28] [26: soon after the establishment of the racist violence monitor network, lgbti+ groups with legal status joined it in an attempt to produce, for the first time, official recordings of homophobic and transphobic violence. moreover, in light of the lack of official reporting protocols, the ngo colour youth – athens lgbtq youth community launched in 2014 the programme “tell us” (pes to s’ emas/πες το σ’ εμάς), which aims to record incidents of violence and/or discrimination based on gender identity, gender expression and/or sexual orientation and provide professional and educational services (theofilopoulos 2015). ] [27: the joint document also makes a distinction between secular officials, on the one hand, who (even if rarely) might be prosecuted for their public racist statements, and religious officials, on the other hand, who systematically cultivated anti-homosexual, anti-trans, anti-migrant and anti-semitic sentiment without legal consequences, until then, even though numerous complaints had been filed against them (dimitras 2017). it would be as late as 2019 before a high-ranking cleric would be found guilty by the greek courts under the legislation discussed for the “public incitement of violence or hatred” through his homophobic public statements (rigopoulos 2019).] [28: in the last years there has been an increase in the rate of complaints and prosecuted cases, but these figures remain extremely low (dimitras 2019). moreover, it should be noted that, as the greek helsinki monitor [ghm] itself notes, “ghm is the plaintiff in the vast majority of those cases, hence responsible for the ‘explosion’ in the figures since 2017” (dimitras 2019: para 3).] what is epitomised by the cases included in these documents is something that can be considered common knowledge, especially among marginalised groups in greece. that is, that state and para-state actors have a central role in establishing and perpetuating racialised and gendered violence and hostility within greek society, a fact that is turned on its head by the logic of the discussed legislation, which relies on state institutions for countering the violence they exemplify. wendy brown’s (1995) analysis in states of injury echoes here to the extent that she has insightfully traced the processes of de-politicisation and individualisation that allow (neo)liberal states to appear as defenders of injured individuals against social injustices, which nonetheless are a sine qua non for the very existence and flourishing of these states.[footnoteref:29] in this sense, focusing on interpersonal violence and directing blame for gender related violence onto “bad” individuals who, in turn, are punished by neutral state mechanisms, works to obscure their own role in the perpetuation of this very violence. indeed, critical approaches to hate crime legislation and other similar legal concepts have pointed out that the investment in punitive mechanisms and the focus solely on interpersonal harm does not work towards undoing social injustices and challenging the broader socio-political conditions that encourage and enable the violence addressed by such legislation (conrad 2012; spade [2009] 2015; lamble 2013; boukli & renz 2018). [29: wendy brown’s (1995) critique in states of injury has been crucial in underlining some of the insidious workings of rights within neoliberal capitalist states. brown employs a post-marxist feminist analysis, drawing insights from nietzsche and foucault’s writings, to rework marx’s critique of rights. she presents a set of paradoxes inherent within rights, not arguing against rights themselves but posing a series of critical questions regarding their depoliticising, individualising and regulatory potential. to that end, brown does not argue against rights politics but she stresses that “rights must not be confused with equality nor legal recognition with emancipation” (brown 1995: 133). even though brown states that a position for or against rights themselves, as trans-historical concepts, cannot stand on its own, it has been argued that her analysis, insightful as it might be, fails to commit to this call for specificity and delivers a unilateral critique that ignores “the most radically transformative and creative moments” of identity-based movements (duggan 2003: 79).] although these critiques of the effectiveness of hate crime laws are pertinent and the politico-legal debates they stem from are crucial, my aim here is not to critique the concept of hate crime in principle. neither is it to re-state the above-mentioned rightful complaints about the lack of application and effectiveness of this specific law within the greek legal order. somewhere between those lines of critique, i want to follow the threads that connect concrete judicial practices, dominant ideological imperatives and political strategies as they are showcased in this reform. to that end, insights from my empirical research are summoned here to serve as a departing point to further nuance our understanding of the way this legislative framework intertwines with complex political processes in the core of neoliberal ideological constructions. the research from which the present article draws revolved around the various entanglements, impasses and strategies vis-à-vis gender variance and the law within the greek legal order (kasapidou 2017, 2020).[footnoteref:30] for the empirical part of this research, i conducted a small number of interviews with trans individuals focusing on their interaction with the law and the ways in which the greek legal order can be navigated.[footnoteref:31] discussing the effects of this specific piece of legislation with my interlocutors, we engaged with the concept of legal protection from “racist crime” and specifically from its transphobic aspect. what seemed to be a common ground was that there is undeniably something produced, even if only on a symbolic level, by having your identity enunciated by the legislator and protected, even if only on a theoretical level, by the law. the very recent memory of homophobic (let alone transphobic) violence not existing as a legally intelligible concept in greece speaks volumes to the effects of complete legal and official illegitimacy (boukli 2009). at the same time, the conviction that state authorities are fundamentally hostile, hence making this concept of legal protection unfeasible, was equally common ground. our discussions thus kept going around in circles, not so much reaching a definite conclusion but more furthering an aporetic engagement with a legal framework whose role seemed rather ambiguous. [30: until very recently, greek legal theory has not engaged, with rare exceptions (papazisi 2000), with the concept of gender identity as such; meaning within a frame of rights. during the last few years, and especially after the introduction of law 4491/2017 on gender identity, the concept of gender identity is becoming a focus-point an increasing number of legal scholars and advocates (papazisi 2014; chamtzoudis 2015; theofilopoulos 2016; kotzabasi 2017; kounougeri-manoledaki 2017; leleki 2017; kaiafa-gbadi et al (eds.) 2017; pantelidou 2018; papadopoulou 2018; peraki 2017; tsirou 2019). still, this body of work significantly differs from the – mainly euro-american – legacies of trans legal theory that have emerged from within or in close proximity with trans communities and activism (currah 1997, 2009; currah & minter 2000; whittle 2002; sharpe 2002, 2018; currah, juang & minter (eds.) 2006; spade 2008, [2009] 2015; aizura 2012). ] [31: i conducted ten interviews in 2017 with seven trans individuals and three legal professionals. four of the trans individuals i had interviewed also in 2014, a fact that provided our discussion with a lot more depth. the small number of in-depth interviews tied in with the modular research design of my phd project (“reserving the right to be complex: gender variance and trans identities in the greek legal order”), which was not meant to be ethnography or an extensive empirical study, and also included archival research and analysis of legal texts, as well as discourse analysis of other (mostly official) texts (kasapidou 2020). ] responding to my questions whether they have or would consider utilising such a law and how they appraise its effects, my interlocutors kept going back and forth in describing the “anti-racist law”, on one hand, as necessary and potentially effective in altering (even if slightly) social conditions (“a tool” or in another case “a window”) and, one the other hand, as futile or even decorative (“a law like a piece of jewellery, an earring”) (kasapidou 2020: 229-232). contemplating the potential of such recognition on a social, penal and even affective level, our discussions led us to engage with the law’s politics of hope, as beger describes it, and to entertain the promise of the law to “teach the nation respect, forcing them to acknowledge and protect individual expression” (beger [2004] 2009: 113). this engagement, nonetheless, was always momentary and self-refuting. it persisted in valuing the law and undermining it at the same time. what is important here is not to read this ambivalence as an expression of personal indecisiveness but as an accurate understanding of the paradox that is the accelerated granting of minority rights in a (neo)liberal reality of normalised violence, precarity and injustice (papanikolaou 2018). within this ambivalent engagement what also emerged was a plethora of obstacles and parameters (such as the restricted access of the most vulnerable populations to such legal remedies) to be taken into account when faced with structural and systemic inequalities and their supposedly straightforward legal solutions (spade [2009] 2015; beger [2004] 2009). this, of course, ties in with the empirically well-grounded suspicion against the “inexplicable” gesture of the government to formally grant protection to groups of people that were, at the same time, systematically marginalised by it. particularly, the scepticism towards state institutions, police and judicial authorities, which have a long legacy of enforcing their ethno-sexual imperatives by any means necessary, can be read, in the light of the previous sections, as an intimate knowledge of how “economies of hostility”[footnoteref:32] work on an everyday level (carastathis 2015; 2018b). another example of such knowledge can be found in one of these discussions wherein one of my interlocutors hinted towards a schema within which the victims protected by the “anti-racist legislation” not only need to be recognised as protection-worthy (rights-bearing, legally legible and law-abiding citizens) but also as socially respectable, as “proper” citizens. the picture she painted marks the intertwining of transphobia, (trans)misogyny, racism and perceived respectability. although such an intertwining can be easily fathomed within the socio-political terrain described earlier in the article, let us make some connections more concrete here. [32: in an article about austerity and racialised gendered violence in crises, carastathis uses “hostility” as a concept to describe an affective economy organised not necessarily only by hate and physical violence but also by “more mundane affects” (carastathis 2015: 109). this economy of hostility is not only misunderstood but also re-legitimised by obscuring “more mundane” affects and their catholic presence.] in the summer of 2012, during the nightmarish police operations against alleged sex workers described in the previous section, several trans women perceived as sex workers were detained in the centre of athens and forcibly tested for hiv in a gender-normative conceptual framework of moral-hygienic abjection (greek transgender support association 2012). as none of them was found to be seropositive, they were released and did not suffer the full extent of social and legal annihilation reserved for the seropositive women. with this legacy and within a similar context of urban cleansing, in may of 2013, more trans women – perceived without any proof to be sex-workers – were targeted and detained on different occasions in the city of thessaloniki (greek transgender support association 2013a, 2013b; galanou 2013). as made clear by the reply of the minister of citizen protection, nikos dendias, to three related parliamentary questions (parliamentary questions no 11381/4.6.2013, 11551/6.6.2013 and 11530/6.6.2013), the targeting of these women was part of a police “special operational action plan” of the public authorities (document no 7017/4/16499). this plan aimed to “improve the image” of some areas of the city and “tackle, among others, prostitution and exploitation of the sexual life of socially and economically vulnerable individuals, to enhance citizens’ feeling of safety and to improve the image of the above mentioned areas” (dendias quoted in tgeu 2013). this statement, which was repeatedly protested by various political agents, confirmed the obvious; that these women were “persecuted and prosecuted by governmental authorities on the basis of their gender identity”, which was implicitly considered in itself proof of illegal sex-work and, thus, indirectly criminalised (bouklis 2013). this operation continued throughout the summer of 2013 with police harassment and hours-long detention becoming a daily routine for many trans women in thessaloniki, some of which were repeatedly picked up and mistreated. with the support of the greek transgender support association and after the reaction of several political collectivities, ngos and other actors, some of the women decided to file a group lawsuit based on their targeting and mistreatment (greek transgender support association 2015). a separate but related lawsuit regarding her own mistreatment was filed by the lawyer representing them, who, during one of the arbitrary detentions was repeatedly denied contact with her client and was finally illegally held as well (greek transgender support association 2017). in 2015 both lawsuits were discontinued as, after a sworn administrative inquiry, the public prosecutor of thessaloniki considered the entire operation to have been properly conducted (greek transgender support association 2015).[footnoteref:33] this is indicative of the perpetuation of the aforementioned “economies of hostility” (carastathis 2015) by legal actors on an institutional level. certainly it was minister dendias who, as a politician, provided the discursive and political framework for this operation, but as will become obvious, judicial authorities play an equally crucial part in the cultivation of institutional hostility and the safeguarding of ethno-sexual imperatives.[footnoteref:34] [33: the thessaloniki court of first instance, after discontinuing the case, partly accepted a damages claim of 5,000.00 euros plus court expenses in favour of the policeman who locked the lawyer in the cell (greek transgender support association 2017). following this turn of events, one of the women, along with the lawyer who was arbitrarily detained, appealed to the european court of human rights where their case in pending (koutra and katzaki v. greece, application 459/16).] [34: there are many other practices that can exemplify the way judicial actors often contribute to the perpetuation of a hostile institutional environment, such as the resistance to applying the “anti-racist legislation” in general and even more so against police officers (a judicial pattern for which greece has been repeatedly condemned in a series of rulings delivered by the ecthr, papanikolaou 2016: 1744-1746). another example is the flawed application, on both a judicial and a low-level bureaucratic scale, of law 4491/2017 on gender identity recognition (e.g. at least one year after its implementation several judges would conduct hearings for the amendment of legal gender publicly, in overcrowded courtrooms, even though the law clearly demands private hearing in the judge’s chambers, galanou 2018). ] let us recall here that, as noted earlier, gender identity had been introduced as a ground for protection from “racist crime” under the greek penal code with law 4139/2013. its passage took place in march 2013, that is, just two months before the operation in thessaloniki commenced. undoubtedly, this operation and its judicial handling constituted a direct targeting of individuals on the grounds of gender identity by the very authorities enunciating the prohibition of targeting individuals on the grounds of gender identity. the point here is not to exclaim in the face of such a paradox, but to return to what has already become obvious in the discussion of xenios zeus and the hiv-related raids: that the intensification of gendered and racialised hierarchies have been instrumental to the materialisation of state projects such as, in this case, crisis management, austerity politics and nation (re)building – not so much, as anna carastathis notes, as a causal relationship within which greece became racist and ethno-phallocentric due to the crisis, but as a way to secure the politics of repression and austerity through and along the political and affective economies of race and gender hierarchies (carastathis 2015). it is equally crucial to perceive these instances of institutional transphobia as part of an overall atmosphere within which transness exists in the greek institutional context, rather than as spatio-temporally confined eruptions within an otherwise non-transhpobic environment (carastathis 2018a). as striking as these events might appear, framing them as disruptive and, in this sense, disconnected from – or even contra – the greek legal order might prove misleading and in a sense complicit in allowing their socio-political backdrop to present as somehow neutral; in a sense, to disappear. sara ahmed (2012), in her work on racism in institutional life, engages with the “labor in attending to what recedes from view” and, in that sense, makes visible what is ever-present for some but unacknowledged by others; ever-present for some also because it is unacknowledged by others (ahmed 2012: 14). ahmed, in reference to institutionalised racism, describes whiteness as a kind of surrounding, something that is just around, but also, following frantz fanon, she conceptualises racism as “an atmosphere around a black body” (ahmed 2014). “an atmosphere”, ahmed tells us, “can be how a body is stopped, how some are barred from entry or stopped from staying” and in that sense is a strategy for socially (and institutionally) imposing who is unwanted, not necessarily by declaring so, but nonetheless by making inhibiting a space unbearable or simply more difficult (ahmed 2014). ahmed’s (2012, 2014) argument is not employed here to achieve a race-gender analogy but to offer a way of fathoming the qualities that compose an a priori non-hospitable (or even unbearable) environment for some while making it appear neutral, or even hospitable, for others. her methodological grace in describing what recedes from view allows (at least an attempt) to grasp the atmospheric qualities that render the greek institutional order deeply and inherently homo/transphobic as well as racist and sexist regardless of its unenthusiastic legislative declarations of the opposite. understanding transphobia and gendered violence as a kind of surrounding provides a framework within which ambivalence towards a narrower conceptualisation of these notions and their materialisation should not just be expected but also welcomed. regarding violence specifically, carastathis (2018a), drawing from feminist of colour and transfeminist theories, establishes an understanding of homo/transphobic violence in modern greece as atmospheric. according to carastathis, the dominant model of engagement with gender-related violence is based on a perception of violence as constituted by events or incidents with clear spatio-temporal limits that allow us to map out the experience of violence by describing, charting and condemning such events (carastathis 2018a). this way, violence is reduced to the exceptionality of the event which constitutes a “dysfunctional exception” that disrupts a smooth and non-violent normality (carastathis 2018a: 6). this conceptualisation, even when it implies or recognises the ever-presence of violence, does so in quantitative terms that suggest this ever-presence is the sum of increasing numbers of such incidents. nonetheless, as carastathis notes, the difference between understanding violence as incidental or atmospheric is more than a matter of proportions. the difference between the two approaches is that “the dominant, incidental approach treats gendered violence in epidemiological terms as outbursts of a disease, within a social body that is, besides that, healthy” (carastathis 2018a: 9). although carastathis makes this point with broader epistemological – and not specifically legal – convictions in mind, it is valuable in the process of conceptualising the greek legal order as an inherently and pervasively gender-normative environment. in one of his 1977-78 lectures at the college de france, michel foucault, suggests – tracing this critique back to kelsenian thought – that there is a fundamental relationship between law and the norm that underlies it (foucault 2003: 55). departing from the position that “every system of law is related to a system of norms”, foucault argues that the law refers to a set of norms, to which it offers a kind of codification (foucault 2003: 55). indeed, mirroring and reproducing the canon of helleno-orthodoxy,[footnoteref:35] which constitutes the backbone of the greek national identity, the greek legal order bears deep within it the interconnection of gender/sexual normativity with national belonging, reproductive futurity and xenophobic (as well as islamophobic) sentiment. traditionally, throughout the core texts of greek civil and penal law, gender variance as well as sexuality (as a whole but even more so practices that are not included in reproductive heterosexuality), have been faced with an inherent “negativism” (vitoros 2008). this has provided a historical legal basis for the fusion of moral, natural and legal “deviation” within the greek legal tradition (vitoros 2008; apostolidou 2014). regardless of the increasing number of legislative texts that adopt the lexicon against discrimination, this is a legal culture riddled with strict hierarchies (in national, sexual, gender, religious and other terms) and an institutional environment built to host the “greek family man” and his heirs.[footnoteref:36] in this environment, a wall of institutional hostility or non-legibility is raised against all others (ahmed 2012). for that matter, the legal silences and “gaps” should not be conceptualised as mere absence of framework but as silences dense with meaning and normative power that convey, as well as deep-seated nationalism, “an evident presence of institutional homophobia” as well as sexism and transphobia (kantsa & chalkidou 2014: 97; chalkidou 2020). [35: the notion of helleno-orthodoxy addresses the fundamental agony (traced back to the establishment of the modern greek state) of a national(ist) identity built on a sense of (non-)belonging in the “east” and “west” imaginary simultaneously (rasku 2007; stavrakakis 2003; carastathis 2014). it serves to compose a national narration aligned with the liminal position of greece and appeals to anti-turkish, islamophobic and anti-migrant rhetorics concerning threats from the “east” as well as tensions created around processes of europeanisation and the perceived cultural and financial threats from the “west” (varikas 1993). helleno-orthodoxy is formed, thus, as a mythical trail that provides continuity granting the national subject with the hellenist heritage attributed to ancient greece and the orthodox values as well as the conflicting cultural elements that compose greek tradition (rasku, 2007; fokas 2008; roudometof 2011).] [36: a fact exemplified in the discussions that led to the rejection of the reform of article 5 of the greek constitution to explicitly include sexual orientation and gender identity as grounds protected by the constitution itself (papanagiotou 2020).] furthermore, as feminist legal scholar giwta kravaritou notes, the gender imperative of the law is not necessarily expressed in the provisions about gender but “even more so in what the law ‘thinks’ on a deeper level” (kravaritou 1996: 144). gender and sexual (as well as other) norms are reflected and reproduced from judicial discourses on every level even when, or especially when, gender and sexuality are not the subject in hand. indeed, the gendering, racialisation and class stratification of a legal order does not rely solely on provisions that directly refer to such social hierarchies (spade [2009] 2015: 59). rather it relies upon provisions, underlying principles and structures that mobilise ideas about nationality, race, gender and sexuality to sustain or create, for example, “a general policy or program that may not explicitly target a group on its face, but that still accomplishes its racist/sexist purpose” (spade [2009] 2015: 59). in this sense, the gendered norms that underlie the greek legal system are present even if not explicitly invoked. this weaving of gender and sexual norms in the core of law implicitly genders its body and is distilled within state apparatuses and carried through all aspects of institutional life up to the last tentacle of administrative authority.[footnoteref:37] hence, understanding who this legal order is hospitable for poses no riddle for anyone who has navigated legal and administrative apparatuses as a citizen, legal professional[footnoteref:38] or litigant who does not represent the primordial national subject in his ideal form. [37: as state-individual interaction is governed by numerous “intertwined and sprawling apparatuses” such as “legislatures, courts, departments, agencies, elected officials, political appointees, public servants, constitutions, laws, regulations, administrative rules, and informal norms and practices” (currah 2014: 198) the safeguarding of the gender imperative of the legal order often takes place in ground-level practices, regardless of constitutional principles and european institutions’ declarations. in the specific context, the ambiguity and lack of protocols and infrastructure concerning trans legal issues and their administrative management, as well as the central position of informal or “irregular” practices (rozakou 2017) within greek administrative mechanisms, have created a terrain of arbitrary power for low-level employees wherein the fate of trans claims often relies on the random, the individual, the unpredictable. in this sense, homo/transphobia can emerge as truly atmospheric, not just on a legislative level wherein legal gender imperatives are reflected in laws and policies, or on a judicial level through hostile judicial practices (see footnotes 32-33), but also on a level of legal daily reality and casual interaction with individual service providers, state functionaries and low-level bureaucrats. that said, as i found during my phd research, especially in areas of complete lack of legislation and valid information on legal issues of gender non-conformity, unpredictability made this terrain a two-way street wherein legal reality unfolded in the realm of individual agency, survival tactics and uncharted routes (kasapidou 2020: 252-262).] [38: although the first woman lawyer in greece was registered in the athens bar association in 1925, greek legal theory and practice remained, for decades, almost exclusively male. even throughout the last part of the century, while feminist – and later lgbti+ – legal theory and jurisprudence were radically influencing the legal paradigm in euro-american legal orders, within greek legal theory there was a notable absence of such critique (rethymniotaki et al 2015 : 10, 12; tsoukala 2007). a rare exception was the women’s studies group of the aristotle university of thessaloniki (1983-2003) whose work both within and outside academia was very important (mihopoulou 2006; tsoukala 2007). although the group embraced interdisciplinarity and later on included members from different fields, all its founding members were alumni of the law school, which remained its base until the end (mihopoulou 2006). ] returning to some of the incidents discussed above, bearing such an understanding of the greek institutional order in mind, it is not surprising that police officers and judicial employees persecuted trans women without any grounds other than their gender identity. or, to go even further back, that migrant women, seropositive women, sex-workers and illegal substances users would be physically and socially annihilated by the state, through judicial and police mechanisms. these mechanisms have been designed precisely to do so, and appear to function infinitely less awkwardly in this role compared to when they are called on to protect “racist crime” complainants. what appears surprising, at least at a first glance, is the reform of the penal consequences of “racist crime” by law 4139/2013 (expanding protection for the first time to gender identity) and even more so, the introduction of the “anti-racist law” law 4285/2014, during the very same period that these operations were at their peak. in the following part of the text, the aporia concerning the introduction of “anti-racist legislation” in that particular context is negotiated not in contradiction but as part of these state projects and the discourses that enabled their legitimation. “racism is an enemy of all of us”[footnoteref:39] [39: comment of the government of greece on commdh(2013)6: 2.] having entertained to some extent the difficult question of what work this legislation claimed to perform and whether it did so, what emerges is a set of even more uncomfortable questions. as noted, the “anti-racist legislation” was repeatedly evoked after its introduction only to be faced with institutional resistance. the fact that the governing authorities had no intention of enforcing such a law combined with the political imperatives of the government agenda described earlier in the article, pose the following questions: since obviously it was not the protection of marginalised populations, what was then enabled in that particular context through the introduction of this legislation? that is, what were the stakes involved in introducing such legislation for a government which dealt so much pain and violence across the axis of ethno-sexual belonging and whose own members openly opposed the “anti-racist bill” on several occasions, thus repeatedly blocking its passage (meliggonis 2013; sotiropoulos 2014)? the thread of those questions is not hard to follow once we have situated this legal reform within broader state and supra-state projects and in close proximity to some of the major political recalibrations of its era. just a glance at the media articles and reports that have been cited throughout this article makes clear that the discussion concerning “racist crimes” and their penal handling was openly centred, both on a national and international level, around golden dawn’s politics and their social impact. it is against the backdrop of golden dawn’s “irrational” and erupting racist violence, that the greek state would redefine its own system(at)ic racist practices and its organised violent operations as necessary and “justifiable coercion” within a state of emergency (butler 2016). this would prove a very effective strategy; one that, although neither invented nor exclusively encountered in that instance, surely fitted perfectly the context in hand. let us turn to a government document in order to grasp the way this gesture of re-signification practically functioned. in 2013, the commissioner for human rights of the council of europe issued a report sketching out a grim picture of raging street-level as well as institutional racist violence, especially within the aforementioned anti-migrant operations such as xenios zeus (commdh[2013]6). the government issued a response to this report in the form of a document from which it is difficult to isolate a single quotation, as its entire body is a blatant distortion of reality, attempting to present a false image not only of government and state authorities but also of greek society itself.[footnoteref:40] the government reply, among other things, asserts the following: [40: building upon the stereotype that greek people are hospitable, hence cannot be racist, the government claims that the rise of golden dawn in the polls and its entry into the parliament do not reflect a rise of racism in greek society but its growing frustration; an argument, unfortunately, not unheard of. this is a stereotype that circulates widely within greek society and across the political spectrum, wherein greek people are imagined as not xenophobic, not only due to their supposed hospitality, but also due to a lack of racist legacies that might appear more common in other european countries, as well as the migrant past of many greek populations coming from ottoman territories (who did actually face resistance from native greek populations) and, more recently, the economic migration of the 1960s from greece to northern europe and north america. of course, just a glance at the history of the modern greek state reveals that the reason behind the lack of common racist legacies with many european states was the forced ethno-religious homogeneity within the greek territory during the previous century (rasku 2007: 43). in other words, greek society did not lack racism, it lacked foreigners. when the 1990s brought sudden and increased migration from albania, cee countries and later various african and asian countries, greek society exemplified its hospitality with raging racism, violence and extreme exploitation (lawrence 2005; karydis 2016; golfinopoulos 2007; lefkaditou 2017). last, let us not forget that greece does share with other european countries the legacy of anti-semitism which, despite having resulted in the annihilation of jewish communities across the greek territory during ww2 (apostolou 2000; kavala 2015; margaritis 2005), is systematically forgotten, underplayed or side-stepped in the debates about modern greek history and greek society’s supposed “hospitality”.] the prime minister and the minister of citizen protection have never expressed views implying a racist or xenophobic attitude to migrants. such an attitude is foreign to their political culture and, in general, to the government’s approach. at the same time, words or phrases taken out of context risk producing false impressions, generating unfair criticism and blurring the overall picture. the prime minister’s statement about the “recuperation” of the city centres from illegal immigrants should simply be seen as an expression of the government’s firm will to effectively enforce the rule of law in the centre of the capital. this (…) will deprive any self-styled “protectors of the law” of the tools they use in order to impose their ugly theory and practices. (…) in a nutshell, racism is an enemy of all of us and we are all on the same page on this. similarly, the use of the terms “invasion” or “bomb” by the minister of citizen protection in referring to the huge presence of hundreds of thousands of illegal immigrants in the country should better be seen as only a dramatic depiction of the country’s reality (comment of the government of greece on commdh(2013)6: 2). this excerpt refers to specific government representatives’ statements mentioned in the commissioner’s reports (commdh[2013]6: 8). those statements were some of the most notorious crystallisations of the state discourses that accompanied the militarised operations against migrant populations and had generated strong political reactions within social movements for their blatant racism and xenophobia. more importantly, it juxtaposes those operations with the actions of golden dawn’s para-state militia who are implicitly referred to as “self-styled ‘protectors of the law’”. and by juxtaposing the “meticulous and patient pogrom” that xenios zeus was (filippidis 2018: 86) with the eruptive, lethal violence of golden dawn’s battalions, the government graces us here with valuable knowledge. that is, it exemplifies the way that hostile political imperatives can be materialised through the mobilisation of discourses that oppose those very imperatives and, more specifically, the way a racist, sexist, homo/transphobic regime can introduce an “anti-racist law” and still make it work in its favour. it is through the re-naming practice seen above, through such a spectacular exercise in inverting reality, that everything described in the previous sections can be understood as ideologically neutral state operations which were aimed at providing rational solutions to practical issues. even though the violence of golden dawn has been enabled by decades-long state racism (emmanouilidis & koukoutsaki 2013), as well as by deep ties between the extreme right-wing and other institutional political forces,[footnoteref:41] after the “anti-racist legislation” reform and the criminal prosecution of golden dawn, this violence was presented as the opposite of state rationalism. indeed, the government discursively framed the “anti-racist legislation” as a struggle against specific forms of violence that were defined as racist violence. and in doing so it reserved for itself the right to establish certain actions and them alone as racist and violent. walter benjamin’s problematisation of legal violence comes to mind here, calling us to consider the ways in which the law legitimises its own violence, thus allowing its character as violent to recede from view (benjamin [1920] 1979). judith butler notes that “in benjamin’s view, legal violence regularly renames its own violent character as justifiable coercion or legitimate force, but these terms sanitise the violence at issue” (butler 2016: 40.48). that is, by conceptualising “racist crime” and racialised violence as either the purview of golden dawn’s militia or an individual irrational behaviour, the greek state re-conceptualises its own racist violence as non-racist and non-violent. moreover, it achieves a legitimation of its extended punitive function, which was fortified in the process of prosecuting golden dawn as a supposedly agreed upon limit for democratic tolerance, but is ultimately also employed against all socio-political actors that are (or will be) declared as illegal or dangerous by the state (koukoutsaki 2013). [41: such ties exist not only with the hellenic police and the greek orthodox church but also with parliamentary parties and especially with nea dimokratia, who were in power at the time (psarras 2015: 33-34). ] it is only within such a framework that one can come to terms with the surge of state-sanctioned gendered and racialised violence in parallel with legal “victories” such as the legal protection against “racist crime.” and it is only within such a framework that we can fathom the formal protection from transphobic violence which is established simultaneously with the persecution of trans women, migrants and sex-workers – that is, by the exact same regime that arbitrarily hunted down, detained and harassed trans women “to enhance citizens’ feeling of safety and to improve the image” of certain areas in thessaloniki, and by the same regime that materialised the nightmarish hiv witch-hunt against sex-workers and illegal substances users in athens (dendias quoted in tgeu 2013; mavroudi 2013). using the tautological formula traced in benjamin’s analysis, according to which legal violence is legitimised because it is legal, the greek government “outlawed” golden dawn’s racism and violence as “racist crime” while re-establishing its own practices of racialised and gendered violence as legal, thus legitimate, and, thus, non-racist and non-violent. these incidents and the era that enclosed them have allowed us to reflect upon a specific legal reform and the conditions that enabled it. nonetheless, as stated earlier, there is no claim of exceptionality in the political strategies discussed and their use by that particular government in that particular period. without having to look very far, as these lines were being written, another nea dimokratia government applauded the conviction of golden dawn members by the greek courts as, in the prime minister’s words, “a victory of democracy” against racism and “the end of a traumatic circle for the country’s public life” (mitsotakis 2020). at the exact same time, the government has been escalating the “war on migrants” through both legal (e.g. new legislation and policies) and illegal (e.g. increasing numbers of “pushbacks” along the borders, slow death conditions in detention camps) means (amnesty international 2019; human rights watch 2020a, 2020b; border violence monitoring group 2020; dimitras 2020). the same government that celebrated the “victory of democracy”, with the pretext of the covid-19 outbreak and following the example of many other states (amnesty international 2020a), has been increasingly imposing a regulatory regime wherein normalised police violence and repression, not only against social movements but life itself, has become a structural element of this new era of governance (amnesty international 2020b; pietromarchi 2020; crimethinc 2020a, 2020b; athanasiadis 2020; konstantopoulos 2020; filippidis 2020). in fact, under the prism of the non-exceptionality of such political manoeuvres, another take on the international aspects of the “anti-racist law” debate is also tempting. that is, the international articles and reports that have been cited throughout this article (see footnotes 12, 15, 18) which epitomise the criticism by the representatives of european institutions of the greek state’s inability to battle racialised violence and institutional racism, could be read within a similar schema of self-justificatory authority and re-naming function. the abundance of european institutions’ reports and articles frowning upon the increase of hate-crime, racist violence and xenophobic rhetoric in greece during that period, carefully side-stepped the wider framework that dictated and encompassed the strengthening of border militarisation, the creation of detention camps and the mass police operations in greek cities. for example, the commissioner stated in his aforementioned report: the commissioner urges the authorities to put an end to the practice of ethnic profiling by the police, reportedly widely used concerning roma and as part of the “xenios zeus” police operation under which the legal status of migrants is verified. racial profiling is discriminatory and seriously undermines confidence in the police among the social groups targeted. drawing on ecri’s general policy recommendation n° 11 on combating racism and racial discrimination in policing, the authorities are invited to introduce in the law enforcement rules a “reasonable suspicion standard”, whereby powers relating to control, surveillance or investigation activities can only be exercised on the basis of a suspicion that is founded on objective criteria (commdh(2013)6: 28). in other words, the problem with the operation xenios zeus was to be found in its flawed execution, as it appears that there are more correct and “objective” ways of recognising individuals on the street as foreigners, massively detaining populations, classifying them as legal or illegal and accordingly deciding on their detention/deportation/relocation, etc. the militarisation of european borders and the securitisation of cities as a political project in itself, along with the xenophobic discourses that enabled it, recede from view here. regardless of this procedural sensitivity, it was the european union that funded operation xenios zeus and it was a european political intervention which established the presence of frontex on greek borders (resulting in hundreds of deaths) and which progressively, through the sealing of borders along the balkan route, trapped thousands of people in slow death conditions on the greek periphery and in detention camps (human rights watch 2011; martin 2013; amnesty international 2014, carastathis 2015). as carastathis notes, it is the eu “which funds the greek state’s immigration practices – enforcement, detention and deportation even as the european court of human rights denounces them” (carastasthis 2015: 78). that is not to say that the hellenic police and other institutional agents do not demonstrate unapologetic cruelty. but even without this aspect, these operations would still be founded upon racist imperatives and the forceful materialisation of the “fortress europe” dogma that categorically deals in racialised violence and death. although the existence of the eu, as we know it, is inextricably linked to racialised violence, at the same time, the investment in its depiction as defender and provider of human rights resulted in its condemnation of the increasing racist violence in greece. as hinted at earlier, the international political pressure was of crucial importance for the unwilling introduction of “anti-racist legislation” by the nea dimokratia governing coalition. indeed, at that particular moment in european politics and with feverish negotiations concerning greece’s financial support unfolding, we do not have to dig very deep to see why negative attention from european institutions could not be ignored by any government. during the public debate concerning this reform, which had already been attempted by previous governments, representatives of european institutions repeatedly called on the greek state to “do more” in order to combat racist violence within its territory.[footnoteref:42] in these gestures, the european union’s legal violence, which materialised in greece in both migrant population management and the enforcement of austerity politics, re-legitimised itself through the concern to combat “racist crime” as the true form of racism and violence. thus, the reform of the “anti-racist legislation” established on both national and european communicational fronts that european political forces and states strive against racism and xenophobia while racist and xenophobic political projects were being intensified. [42: such examples are the human rights commissioner’s nils muižnieks report on the situation in greece (commdh(2013)6), the human rights watch submission to the united nations committee against torture (human rights watch 2014) as well as the repeated visits by the european home affairs commissioner cecilia malmstrom (dabilis 2013; ekathimerini 2013). ] closing throughout this article, i have attempted to trace the less obvious work performed by the “antiracist legislation” within exemplary moments of greek and european neoliberal racist politics. situating the reform within a context of hostile ideological imperatives that materialised through state operations targeting marginalised populations, a set of questions emerged concerning the introduction of this legislation overall and the inclusion, for the first time, of gender identity among the protected characteristics. the formal declaration of legal protection was juxtaposed not only with the aforementioned militarised operations, which have relied upon gendered hierarchies, social abjection and legalised violence, but also with the overall atmosphere of the greek institutional order. this juxtaposition was enabled by utilising feminist conceptualisations of gendered violence in greece as atmospheric, thus avoiding the misrepresentation of whatever lies beyond concrete isolatable incidents as a non-violent/racist/transphobic reality (carastathis 2018a). the argument was also furthered by a conceptualisation of the greek legal order as inherently gendered and selectively hospitable only for those whom it was designed to facilitate in terms of ethno-religious and national belonging. through this prism and under the regime of crisis management by a right-wing government, which largely relied on rhetorics of national and ethno-sexual purity, the workings of the legislation against “racist crime” emerged as ambiguous. trying to account for the seemingly inexplicable coincidence of formal legal protection and system(at)ic annihilation of the nation’s others, i have argued that precisely through the investment in a (legal and political) lexicon that formally prohibits specific forms of discrimination, racism and violence, an entire set of practices and imperatives were re-conceptualised and legitimised as non-racist and non-violent. following benjamin’s thought on the tautological formula that legitimises legal violence (because it is legal), it was suggested that both the greek state’s massive operations against the country’s ethno-sexual others and the materialisation of the european imperatives of “fortress europe” relied heavily on the process of re-naming their own racist violence as justifiable coercion. the greek government, by using a conceptualisation of golden dawn’s practices as the sole definition of racist and overall discriminatory violence, constructed an image of irrational, hate-instigated, neo-nazi racism as racism, thus, re-naming its own calculated institutional racism and violence as non-racist and non-violent. in other words, in the process of the systematic ethno-sexual persecution and systemic cruelty of that era, the “anti-racist legislation” was utilised, in an insidious way, against the marginalised populations it was supposedly designed to protect. as shown earlier, at least until 2017, the “anti-racist” legal framework was spectacularly underused and even resisted by the prosecuting authorities (dimitras 2017; tsarnas 2017). during the last couple of years there has been an increase in its use and even some high-profile litigation produced (dimitras 2019). whether this litigation will live up to the expectations of the rationale of hate crime and anti-discrimination law “to teach the nation respect” is another conversation that far exceeds the scope of this article (beger [2004] 2009: 113). it has not been the goal of the article to appraise the usefulness of such a framework or to measure the extent and correctness of its application in the specific context, even if such data was indeed evoked. neither has it been its goal to attempt an overall critique of hate crime or lgbti+ rights as concepts within the context of neoliberal states in a globalised capitalist world. the present analysis has unfolded in areas that these debates cross but also, in a way, sunder. through concrete accounts regarding the law’s introduction and application (how, when and by whom was it introduced, how and to what extent was it applied and in parallel with which specific operations) the threads were followed to a discussion regarding the political work that was performed by this reform on a macro level. in that particular instance, the legislation was instrumental for the legitimation of governmental politics that dealt racialised and gendered violence. that is not to suggest that we should reject in principle formal protection against discrimination and violence. this was never the point of this article as stated in the beginning. the point of this article and the conclusions it draws is to contribute towards the demystification of such legal protection by regimes that categorically rely upon the very principles such laws claim to combat. it is also to serve as a reminder to persistently allow our understanding of lgbti-related legal developments to be engrafted with uncomfortable questions regarding the complex political junctures in which they are situated. this article opened by narrating the end of an era in greece. as historical time is becoming increasingly condensed, it closes with everyone’s eyes on the dawning of the new and incomputable post-pandemic reality. in this accelerating time, in these previously unfathomable conditions of our (not equally) shared bio-political dystopia, we will have to make sense of new and old political apparatuses, government strategies and legal reforms. as europe and its states are increasingly abandoning the pretexts of their supposed humanitarian core, the stakes of such politico-legal manoeuvres are becoming higher. here, on europe’s border and periphery, the formal protection of migrants from neo-nazis and traffickers coincides with daily push-backs by the coastguard and massive entrapment in slow death conditions along the greek borders. the formal protection of marginalised groups coincides with institutional hostility and legal violence against them. lately, even the formal protection of our health coincides with increased surveillance, police violence and the deprivation of the right to protest. in this context, let us bear in mind the connections, such as the ones made in the article, between “progressive” legislation, state violence and the strategic precarisation of populations on a state and suprastate level. let us stay with these connections’ potential for articulating a political critique of the law and be reminded that “in addition to its legitimacy, the state achieves a good deal of its power through its devious claims to resolve the very inequalities that it actually entrenches by depoliticizing” (brown 1995: 109). at the end of the day, if nothing else, let us remain suspicious and critical towards legal “progress” that coincides with so much institutional hostility, legalised violence and normalised death. acknowledgements i am indebted to stephen whittle and kay lalor for their help and support during my phd project at mmu from which this article is drawn. also, i want to thank aspa chalkidou and christos filippidis for the discussions and their advice on this article. last, i am grateful to the two anonymous reviewers for their supportive feedback. bibliography ahmed, s. 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