Gender Law Research Articles

Unraveling gender in law:

O objetivo deste artigo é debater o Institucionalismo Feminista como um instrumento de pesquisa e interpretação do Direito brasileiro. Gênero é uma categoria pouco examinada nos estudos jurídicos nacionais, concentrando-se nas áreas penal e civil, no que tange violência de gênero e direito de família. Todavia, os operadores do Direito podem e devem se beneficiar na ampla utilização desta estrutura analítica para compreender problemas negligenciados pela disciplina. Nos perguntamos, desse modo, quais ferramentas o Institucionalismo Feminista poderia fornecer ao Direito no intuito de acrescentar novas estratégias de compreensão da Justiça e do fazer jurídico. Para tanto, realizamos um amplo debate interdisciplinar, conceituando as Instituições, as diversas escolas do conhecimento institucionalista e pontuando que somente a partir de uma abordagem feminista é que o Direito conseguirá prosseguir como caminho da promoção da justiça social.

Introduction: Trans identities and the law

Abstract This Symposium offers a critical exploration of how the identities of trans people are translated, recognized, and considered in the law. In so doing, it sheds light on the often-difficult coexistence between the lived experiences of trans people and their legal regulation. The main argument that the Symposium advances is that multiple structural—legal, social, and cultural—factors influence the evolution of rights pertaining to gender identity. Identity recognition—the articles show—is also key to accessing multiple other rights and benefits in society. The Symposium includes five articles, all addressing the recognition of diversity and the construction of gender in law, focusing on a variety of jurisdictions and drawing on different disciplinary perspectives. Showing a multifaceted approach to one of the most topical public law challenges, this Symposium discusses the limits and the possibilities of law in advancing the rights of trans people.

Gender in Law and Family Values: In Search of a Balance

The paper examines the current gender aspects of legislation regulating relations with the family element (mainly from the family legal space), the practice of its application by the courts. The provisions of the legal doctrine, primarily civil and civil procedure, on this issue are summarized and analyzed. Meanwhile, the author intentionally leaves civil law out of the field of research, since civil law norms are specified by family and administrative legislation and are gender neutral. The gender contexts of the institution of marriage (its heterosexual legal attitudes, the legal consequences of sex change in marriage, the problem of same-sex marriage, de facto marriage, gender prohibitions in the divorce procedure), the institute of parenthood (presumption of paternity, the influence of gender stereotypes on the legislation on the establishment of extramarital paternity, the law enforcement presumption of the mother’s preferential right to leave her young child, the rights of fathers, same-sex parenthood and its consequences), the institute of surrogacy (gender differentiation the subject composition of the program participants, controversial administrative and judicial practice in cases of the legal consequences of the use of assisted reproductive technologies). Other gender aspects of Russian family legislation are analyzed (for example, gender neutralization of norms on alimony obligations). In the argumentation of his position on these issues, the author not only relies on the analysis of legal norms, court decisions and provisions of legal doctrine, but also refers to the sociological meanings of gender practices. The author notes that the proposed approaches to the classical and modern gender contexts of family and related legislation indicate the actualization of both the problem as a whole and the need to answer questions on its individual components.

Sex and gender equality law and policy: a response to Murray, Hunter Blackburn and Mackenzie

This article is a response to ‘Losing Sight of Women's Rights: The Unregulated Introduction of Gender Self-Identification as a Case Study of Policy Capture in Scotland’ by Kath Murray, Lucy Hunter Blackburn and Lisa MacKenzie, published in Scottish Affairs 28(3). Murray et al. sought to explore the legal status of women, particularly with regard to discrimination legislation, and concluded that the interests of trans women had begun to systematically erode the interests of non-trans women in Scotland. In this response, we aim to correct some of the erroneous statements made by Murray et al. about legal definitions of sex and gender, and about discrimination law. In critically engaging with Murray et al.’s argument we aim to build a much-needed clearer understanding of law and policy on sex and gender in Scotland, particularly as it relates to the application of the Equality Act 2010. We argue that, in that claiming that there has been policy capture in Scotland, Murray et al. have neglected to contextualise ongoing debates about sex and gender in law against the backdrop of over two decades of clear legal and policy shifts across the UK. We call for researchers and others – in Scotland and elsewhere – to take care, particularly in interpreting and applying the law, especially as it applies to marginalised minority populations, so that we do not further obfuscate or mislead on important legal and social issues.

Patriarchy and Gender Law in Ancient Rome and Colonial America

Roman Antiquity and Colonial America shared much in common regarding limits on women’s legal rights and the role of gender in law. Gendered stereotypes regarding women’s ability and place in society are reflected in the patria potestas and manus of Ancient Roman law, as well as through the patriarchal and pious Puritan laws of New England society during the American Colonial period. Both male-dominated social and legal systems were based on the notion of women’s innate inferiority and female submission to male authority. Gender expectations and biases are also present, not only in family law, but also in law governing sexual behavior and partnerships. While Roman law punishes sodomy and male same-sex relationships on the grounds of contradicting the concept of the pater familias, Puritan New England relied on Christian morals and religious teachings to govern their sodomy laws. However, such gender disparities in the law are also subject to social status and race, leading men who did not reflect the respective society’s preferable identity to face harsher punishments as a result. Regarding the concept of gender and male superiority, family law and the societal expectations that both shaped and were shaped by such laws reflect an ever-present patriarchal structure throughout the Early American and Ancient Roman legal systems. The gendered attitudes toward marriage, rape, sex, and consent in both Roman and Early American society are reflected in the laws that governed the lives of women and gender non-conforming minorities in both societies.

Some reflections on law and gender in modern Ireland

This is the text of the keynote lecture delivered at the launch of Black, Lynsey and Dunne, Peter (eds). Law and Gender in Modern Ireland. Oxford: Hart, delivered 13th September 2019, Department of Law, Maynooth University, Ireland. The lecture locates the book within the context of rapid, radical transformation in gender law and politics in Ireland, highlighting some of the issues which have been the focus of activism and/or reform. The lecture goes on to outline some of the challenges which arise in the legislative pursuit of gender equality including the tension between respecting agency and choice and curbing exploitative and/or gender disadvantaging practices. Comparisons are also made with legislative initiatives in neighbouring Britain. The lecture concludes with some reflections on the interplay of sex and gender in law and public debate and their embedding in the constitutional creation of the modern Irish State.

LJB Hayes: Stories of care: A labour of law—gender and class at work

LJB Hayes: Stories of care: A labour of law—gender and class at work

On The Hidden Gender of Law: A Public Talk

Reg Graycar and Jenny Morgan’s The Hidden Gender of Law was published in 1990.1 On 10 March 2015, at Melbourne Law School, Jenny Morgan and Reg Graycar gave the annual International Women’s Day lecture. The lecture was organised by Abbey Ley and Amelia Eddy, the 2015 Women’s Officers of the Melbourne Law School Law Students’ Society. Reg and Jenny were invited to stage a conversation in order to consider the production, reception and legacy of their book.

Gender Parity and Youth Employment in Nigerian Tertiary Institutions: A Study of Auchi Polytechnic, Auchi, Edo State, Nigeria

In recent times, gender issues have continued to be at the centre stage of every political discourse in many regional, national and international fora. Although much has been written on gender as an academic discipline, gender parity and youth employment in Nigerian tertiary institutions is yet to be given the desired attention. Thus, women employment cannot be ignored even when employment pattern in Africa still favours men more than women. This paper investigates gender parity and youth employment in Nigerian tertiary institutions with particular focus on recruitment of young men and women into academic positions in Auchi Polytechnic, Auchi. To achieve the purpose of the study, a sample of 325 academic staff was selected for the research. The study tested a hypothesis of no relationship between gender parity and youth employment in Nigerian tertiary institutions using a statistical tool called t- test statistic with the help of statistical software known as SPSS version 16.0. The t-statistic analysis showed that there is a significant relationship between gender parity and youth employment among academic staff of Auchi Polytechnic, Auchi since tcal (87:41)> ttab (2:31) at 5% critical level. It concluded that there is gender imbalance in the employment of academic staff as male youth are more in employment than female youth in Nigerian tertiary institutions. The paper recommends among others the need for government to enshrine into law gender equality in terms of employment opportunities for all qualified citizens in Nigeria.

Endless Sex: The Gender Recognition Act 2004 and the Persistence of a Legal Category

This paper challenges a view of the Gender Recognition Act 2004 as involving an unequivocal shift from the concept of sex to the concept of gender in law’s understanding of the distinction between male and female. While the Act does move in the direction of gender, and ostensibly in an obvious way through abandoning surgical preconditions for legal recognition, it will be argued that the Act retains and deploys the concept of sex. Moreover, it will be argued that the concept of sex retained is not merely an anatomical understanding, but sex in a biological sense. In this respect the Gender Recognition Act can be viewed as embodying a tension between gender and sex. Further, it is contended that this tension is explicable in terms of irresolution of contrary legal desires to reproduce the gender order and to insulate marriage and heterosexuality from homosexuality in the moment of reform.

Ethics, Race, and Reform

Deborah Rhode is a highly acclaimed scholar and a distinguished public servant. Prolific in both academic scholarship and popular commentary, she is the author of numerous books, articles, and essays on the law and the legal profession. In an important convergence of her roles as a scholar and a public intellectual, Rhode recently returned to the subject of the profession in a new book titled In the Interests of Justice: Reforming the Legal Profession. Like her prior work, In the Interests of Justice profoundly enriches the discourse of ethics and professionalism. Equally important, taken as part of a larger normative enterprise, it inspires others to pursue justice-seeking projects. For many, the subject of contemporary justice in American law at the hands of its heralded profession might prove a daunting project. Yet, for Rhode, the subject affords an opportunity to enlarge a body of scholarship already stunning in its breadth and virtuosity. Rhode's scholarship engages two main fields of study: equality and gender, and ethics and professionalism. In the Interests of Justice addresses primarily the latter. Rooted in interdisciplinary literature, its genealogy combines multifarious antecedents. On the politics of law and ethics, the book garners from the work of Richard Abel, Robert Gordon, William Simon, and David Wilkins. On gender in law and the profession, it culls from the research of Barbara Babcock and Judith Resnik. On judgment and the neo-classical lawyer, it draws upon the writing of Anthony Kronman. And in philosophy, it winnows from the texts of David Luban. This essay takes up Rhode's premise of a core public interest in American law and society, and seeks to join that interest to identity and community-based reform movements. The essay is divided into three parts. Part I parses In the Interests of Justice for its guiding principles of reform. Part H links race and reform to the criminal justice system, specifically with respect to the prosecution and defense of racial violence. Part III connects identity and community to lawyer-engineered reform strategies.