Feminist Judgment Research Articles

Sexism and women's access to justice: Feminist judging in Indonesian Islamic judiciary

Sexism in the judicial system is a persistent problem in countries where women frequently are held to a different moral standard than men. As such, some advocates and legal experts argue that feminist judging practices are necessary for ensuring women's access to justice. While many studies focus on the effect of sexism on gender inequality in politics, the extent to which sexism may lead to further gender inequality in the judiciary remains understudied. Additionally, much research on feminist judging relies on qualitative data from trial or court transcripts to determine judges' approaches, but quantitative examinations of feminist judging are still few. Drawing on a mixed methods sequential explanatory approach, our study examines how sexism contributes to shaping the support for feminist judging in the Indonesian Islamic judiciary. We use several cases of polygamy, marriage dispensation, divorce involving domestic violence, and post-divorce alimony as proxies to measure the support for feminist judging. The findings show that hostile sexism is not statistically associated with the support for feminist judging, but benevolent sexism facilitates judges' support for feminist approaches. Female judges are more likely to support feminist judging than male judges.

The Life of Negligent Infliction of Emotional Distress and the Death of Gotcha Sexuality: A Feminist Judgment in Boyles V. Kerr

The Life of Negligent Infliction of Emotional Distress and the Death of Gotcha Sexuality: A Feminist Judgment in Boyles V. Kerr

The ‘Vulnerable’ Hindu Woman, Love-jihad, and the Indian Courts: The Hadiya Case - Commentary on Asokan K.M. v. State of Kerala (2017) 2 KLJ 974

In Asokan K.M. v. State of Kerala (2017) at the behest of a disgruntled Hindu father whose daughter had converted to Islam and married a man of her choice, the Kerala High Court (HC) cast the daughter, Hadiya, as a ‘vulnerable’ woman before annulling her marriage. In this article, I place the infamous Hadiya case within a broader history of love-jihad – an ascendant Hindu nationalist conspiracy in India that asserts that Muslim men wish to convert Hindu women to Islam by feigning love and seducing them, thus posing a threat to all Hindu women, and by extension to the community and the nation itself. I then analyse the public perception and the media discourse around the trial, before turning to the Indian Supreme Court’s (SC) judgment in the case. I argue that by denouncing patriarchy and ostensibly finding in favour of Hadiya, the SC judges portrayed themselves as feminist allies, yet by allowing the National Investigation Agency to continue their ‘terror’ investigation against her husband, they not only insidiously undermined Hadiya’s decisions, but also revealed the shallowness of their feminist stance. In the last section, I appraise the rewritten feminist judgment offered by Urmila Pullat and Sandhya PR who situate themselves as the dissenting judges on the Kerala HC bench.

Percepções de estudantes sobre a experiência didático-pedagógica de reescrita de decisões judiciais em perspectivas feministas e antirracistas

Abstract This article aims to analyze how students involved in feminist judgment projects in 2021-2022 perceive the impact of such experiences on their legal education. We have enumerated the effects perceived by undergraduate and postgraduate students resulting from the project in their educational institutions and in their formation as legal scholars. The study was qualitative and used a virtual questionnaire for data collection. The literature review encompasses works on the pedagogical aspects of feminist rewriting projects in various countries, including those addressing challenges to critical legal education in Brazil. Our analysis confirms the potential of feminist rewriting practices to enhance the critical and interdisciplinary education of law students.

Feminist Judgment: A Commentary on Johnson v. Ramsden

Feminist Judgment: A Commentary on Johnson v. Ramsden

Feminist judging in lower courts

AbstractMuch of the literature on feminist judging concentrates on judges and judging in appellate and superior courts. This article extends that literature by investigating whether and how feminist judging manifests in lower courts, which deal with the vast bulk of criminal offences and civil claims. It does so through analysis of transcripts of non‐trial criminal proceedings in Australian magistrates courts, focusing on judicial practices rather than the gender or other known characteristics of the magistrates. Clear instances of feminist judging are relatively rare. Where they occur, they are often in the form of isolated feminist ‘moments’ rather than a magistrate exhibiting a distinct feminist orientation. The article reflects on what these findings suggest about the nature of judging in lower courts and the possibilities for feminist judging in that context.

“That’s what she said”: centring women’s testimony in rape trials - re-writing Raja and Ors. v. State of State of Karnataka (2016) 10 SCC 506”

ABSTRACT This paper is an attempt to re-imagine a 2016 Division Bench judgement of the Supreme Court of India in an appeal against conviction for rape, through a feminist dissent. The imaginary dissent is situated in the time and place of when the majority decided the appeal and significantly departs, both methodologically and substantively, from the majority opinion. It does so by according primacy to the complainant’s testimony and evaluating it independently of the other evidence on record, including the medical evidence. The accompanying commentary sets the judgement in the context of the socio-legal framework in which it was delivered and highlights the ways in which the dissent demonstrates the possibility of writing a feminist judgment even while adhering to the limits set by applicable law.

A feminist rewriting of Air India v Nergesh Meerza AIR 1981 SC 1829: proposal for a test of discrimination under Article 15(1)

ABSTRACT Nergesh Meerza is one of the earliest and most grave failures of the Supreme Court of India in the field of discrimination law. In a single stroke, not only did the Court drive a wedge between sex and gender to protect only the former from discrimination, it also debarred indirect and intersectional discrimination from the purview of the Constitution. This article presents a feminist judgment in this case which dissents from the original decision of the Court. It develops a version of constitutional protection from sex discrimination which embodies gender, indirect and intersectional discrimination. Importantly, it ventures into the hitherto neglected field of non-discrimination under Articles 15(1) and 16(2), and develops a substantive test for violations. Nergesh Meerza makes clear that without such a test, judges inevitably fail to give any meaning to the non-discrimination guarantees as part of the equality code of the Constitution.

The state and the patriarch: rewriting Charan Lal Sahu, Rakesh Shrouti, Rajkumar Keswani, Nasrin Bi and others v. Union of India (1990) 1 SCC 613

ABSTRACT In this contribution, as part of the Indian Feminist Judgement Project, we reconsider the decision of the Supreme Court of India in the Charan Lal Sahu case that followed the Bhopal gas leak tragedy. We present a dissenting opinion on the case, finding that the law empowering the State to supplant the victim-survivors as plaintiffs was unconstitutional. Alongside, we offer a brief commentary on why this finding comports with what a feminist judge on the bench might have decided. We consider a variety of ways in which feminist criticism of the majority decision might proceed, and how this criticism informs our rewriting. We also consider a set of persistent questions about feminist judging, and ways in which our rewriting, in turn, might be subject to further feminist objections.

Women judges or feminist judges?: Gender representation and feminist values in International Courts

Women judges or feminist judges?: Gender representation and feminist values in International Courts

Commentary on Means v. United States Conference of Catholic Bishops

This chapter of FEMINIST JUDGMENTS: REWRITTEN HEALTH LAW OPINIONS (Seema Mohapatra and Lindsay F. Wiley, eds., forthcoming 2021) provides commentary on Leslie Griffin’s rewritten majority opinion in Means v. United States Conference of Catholic Bishops, 836 F.3d 643 (6th Cir. 2016). This commentary chapter complements the rewritten opinion, providing background material, analysis of the feminist judgment, and reflections on the implications of the feminist judgment for health law. Tamesha Means was eighteen weeks pregnant when she rushed to her local hospital suffering from a miscarriage. Similar to many women living outside of major metropolitan areas, the only hospital within a reasonable distance of Means’ residence was a Catholic-owned hospital which Means alleged mistreated her. Despite evidence that Means endured mistreatment as a result of Catholic entities’ health care directives, federal courts dismissed Means’ lawsuit against the religious entities. Leslie Griffin’s rewritten opinion brings a feminist perspective to bear on the broader problem of increasingly widespread assertions that objections based on “conscience” entitle health care providers to depart from appropriate standards of medical care and impose harms on vulnerable third parties. The feminist revision of Means not only exposes the inequitable impact on patient well-being of sectarian institutions’ medical care restrictions, but also insists that the law more broadly must safeguard the health of patients. While religious freedom remains an important principle, Griffin’s feminist judgment underscores that in any health care setting, freedom of conscience does not justify exemptions from legal and ethical standards of medical care that would inflict harm on unwitting patients.

Commentary on Olmstead v. L.C. ex rel. Zimring

The 1999 Supreme Court decision Olmstead v. L.C. ex rel. Zimring was celebrated as the Brown v. Board of Education for disability rights, as it gave meaning to the integration mandate of Title II to the Americans with Disabilities Act. Using a Disability Legal Studies framework, this commentary puts the monumental Supreme Court decision in context, reviews the history of institutionalization in the US, analyzes the original court opinion and the reimagined feminist judgment, and discusses the future and challenges of long-term community-based care after Olmstead.

Gender and judging at the International Criminal Court: Lessons from ‘feminist judgment projects’

AbstractTo date, analyses of gender justice at the International Criminal Court (ICC) have focused primarily on critiques of, and shifts within, the Office of the Prosecutor. This article takes a different approach by focusing on the ICC’s judiciary. We being by arguing that state parties can and should do more than electing a balance of male and female judges – they can also ensure gender-sensitivity on the Bench by supporting candidates with expertise in gender analysis, and by backing judges who bring a feminist approach to their work once elected. Next, we explain the concept of the ‘feminist judgment-writing’ and suggest that this method offers a useful framework for embedding gender-sensitive judging at the ICC. To illustrate this argument, we highlight opportunities for ICC judges to engage in gender-sensitive judging in relation to interpreting the law, making findings of fact, and deciding procedural questions. The final section of the article discusses how best to institutionalize the practice of gender-sensitive judging at the ICC.

Hercules as a feminist judge? Revisiting Rackley's ‘Little Mermaid’ in the wake of the feminist judgments projects

AbstractIn her early work, the feminist legal scholar Erika Rackley uses the image of Ronald Dworkin's superjudge Hercules to shed light on the experience of the woman judge and on law and adjudication in the liberal legal order. She sees Hercules as representing the judge ‘who inhabits our legal imagination’, and as conjuring up problematic notions of unimpeachable wisdom, detached neutrality and super-humanism. This paper assesses Rackley's argument in light of the feminist judgments scholarship that has emerged in the meantime. It contests Rackley's claim that Hercules, or what he represents, is a patriarchal influence in the real world of law, and argues that he might instead be understood to accommodate, or even to encourage, principled evolutions in law along the lines of those suggested by the feminist judgments literature. This assessment is done mainly through the lens of Stokes v CBS Clonmel, a judgment of the Irish Supreme Court concerning indirect discrimination that was later the subject of a feminist judgment in the Northern/Irish Feminst Judgments volume. The broader aim of this assessment is to interrogate the insights and implications of feminist judgments scholarship.The paper is in four parts. Part 1 places feminist approaches to adjudication in broader theoretical context. Part 2 considers Dworkin's theory of adjudication and Rackley's critique. Part 3 sets out the approach taken by both the real-world and feminist judges in the Stokes case. Part 4 critiques Rackley's take on Hercules in light of the approach adopted in those judgments and draws on preceding analysis to interrogate the insights and implications of feminist judgments scholarship.

Hercules as a Feminist Judge? Revisiting Rackley’s Little Mermaid Post Feminist Judgments Projects

In her early work, the feminist legal scholar Erika Rackley uses the image of Ronald Dworkin’s super-judge Hercules to shed light on the experience of the woman judge and on law and adjudication in the liberal legal order. She sees Hercules as representing the judge ‘who inhabits our legal imagination’, and as conjuring up problematic notions of unimpeachable wisdom, detached neutrality and super-humanism. This article assesses Rackley’s argument in light of the feminist judgments scholarship that has emerged in the meantime. It contests Rackley’s claim that Hercules, or what he represents, is a patriarchal influence in the real world of law, and argues that he might instead be understood to accommodate, or even to encourage, principled evolution in law along the lines of those suggested by the feminist judgments literature. This assessment is done mainly through the lens of Stokes v CBS Clonmel, a judgment of the Irish Supreme Court concerning indirect discrimination that was later the subject of a feminist judgment in the Northern/Irish Feminst Judgments volume. The broader aim of this assessment is to interrogate the insights and implications of feminist judgments scholarship. The article is in four parts. Part I places feminist approaches to adjudication in broader theoretical context. Part II considers Dworkin’s theory of adjudication and Rackley’s critique. Part III sets out the approach taken by both the real-world and feminist judges in the Stokes case. Part IV critiques Rackley’s take on Hercules in light of the approach adopted in those judgments and draws on preceding analysis to interrogate the insights and implications of feminist judgments scholarship.

How Can the Methodology of Feminist Judgment Writing Improve Gender-Sensitivity in International Criminal Law?

How Can the Methodology of Feminist Judgment Writing Improve Gender-Sensitivity in International Criminal Law?

Feminist Judging in Action: Reflecting on the Feminist Judgments in International Law Project

This review essay discusses some of the effects of the feminist methodologies utilised in Feminist Judgments in International Law (Hodson and Lavers (eds), Hart Publishing, Oxford, 2019), in which ‘feminist judges’ rewrote fifteen well-known international law cases. A glimpse is provided into aspects of the feminist judgments that were transformative, before turning to the contributors’ ‘Reflections’, which highlight some of the obstructions encountered and compromises made in the processes of judging. The collection makes a useful and compelling contribution to concretising feminist methods, in all their diversity, in international law, while teaching us a great deal about the limitations of the justice delivered by the legal form of judging.

Commentary on <i>Burton v. State</i>

In March of 2009, Samantha Burton went into labor only 25 weeks into her pregnancy. This is a very serious pregnancy complication that not only risks the pregnant woman’s health, but also greatly reduces her potential child’s chance of survival despite the most aggressive care. Ms. Burton’s doctor prescribed, among other things, inpatient bed rest for the duration of her pregnancy, which would have required her to be separated from her two minor children at home. Ms. Burton found that recommendation unacceptable, and as a competent adult, asked to be discharged or to obtain a second opinion from another hospital. Instead of abiding by Ms. Burton’s request, a court order was obtained that required Ms. Burton to submit to any and all care the doctor believed was “necessary to preserve the life and health of [Ms. Burton’s] unborn child.” Ms. Burton was eventually coerced into a cesarean section, during which the doctor discovered that her child had already died in utero. Ms. Burton’s case is tragic—she not only endured the trauma of losing her child, but the state’s invasion into her basic autonomy. On appeal, the court overruled the decision, finding that the trial court had used the wrong legal standard in compelling Ms. Burton’s care. As part of the Feminist Judgment Series, Nadia Sawicki adds a vital concurrence to that appellate decision, which would have also overturned the trial court’s decision as unsupported by substantial evidence. Her contribution highlights the need to hold lower courts accountable for avoidable evidentiary errors in addition to legal ones. This commentary provides additional support and context to explain why the trial court’s evidentiary missteps are so important to correct.

Commentary on Dandridge v. Williams

This chapter of FEMINIST JUDGMENTS: REWRITTEN FAMILY LAW OPINIONS (Rachel Rebouche, ed. 2020) provides commentary on Susan Frelich Appleton’s rewritten majority opinion in Dandridge v. Williams, 397 U.S. 471 (1970). This commentary chapter complements the rewritten opinion, providing background material, analysis of the feminist judgment, and reflections on the implications of the feminist judgment for family law as well as poverty law and reproductive justice. The original opinion in Dandridge v. Williams upheld Maryland’s maximum family grant regulation (or “family cap”), which limited public assistance to poor families and effectively allocated fewer dollars to larger families. Susan Frelich Appleton’s revised judgment departs from the original opinion both rhetorically and substantively in distinctly feminist ways. Appleton uses an intersectional lens in analyzing the impact of the family cap. The feminist judgment addresses not only class, but also how systematic discrimination based on race, disability, gender, and age can intersect and operate together as interlocking systems of oppression, leading to indigence for the most vulnerable groups in society. The revised opinion also brings within judicial purview poor people’s fundamental rights of procreation and family togetherness that the original opinion undermines. Finally, the revised judgment departs most dramatically from the original opinion in its approach to the Equal Protection Clause and the welfare rights thesis—reasoning that the Constitution protects positive rights to the basic necessities of life. The feminist judgment illustrates how welfare reform is a feminist, family law, and reproductive justice issue.

READING DOWN SECTION 44(i) OF THE AUSTRALIAN CONSTITUTION AS A METHOD OF AFFIRMING AUSTRALIAN CITIZENSHIP IN THE 21st CENTURY

Until 2017, the most recent disqualification of a member of the Australian Parliament under section 44(i) of the Australian Constitution (‘Constitution’) was Senator Heather Hill in 1998. Remarkably, since 2017, almost twenty years after Sue v Hill, ten parliamentarians have resigned or been disqualified, triggering a series of by-elections. The catalyst for this flurry of activity occurred in July 2017, when Greens senator Scott Ludlam announced that at the time of his election, he was a citizen of New Zealand and was incapable of sitting in parliament under section 44(i). He was the first of ten senators and members of parliament to be referred to the High Court of Australia in the cases of Re Canavan and later Re Gallagher on questions of eligibility under section 44(i). Eight of these parliamentarians were disqualified, sparking national debate around parliamentary representation and membership within the Australian community. Since Re Canavan and Re Gallagher and indeed well before those cases, the section had and has continued to attract popular, journalistic, parliamentary and academic criticism. Consequently, there have been calls for a referendum on section 44(i) for a significant period of time. While the authors support this call, this article reflects on the cases and develops a different interpretive approach to section 44(i) which if argued by the parties and adopted by the Court, would have rendered a referendum unnecessary. By drawing on the earlier section 41 of the Australian Constitution case of R v Pearson; Ex parte Sipka and its majority judgment, as well as drawing upon the minority judgment of Murphy J and a more recent feminist judgment written by Kim Rubenstein, one of the authors of this article, we argue that the principles of representative democracy and the sovereignty of the people could have acted as a frame to read down section 44(i). Had this approach been adopted, the Court could have effectively placed the decision around disqualification of parliamentarians around the issue of dual citizenship, back into the hands of the elected representatives