Substantive Equality Research Articles

Gender discrimination and juries in the 20th century

This article presents a comparative study of the 20th-century exclusion of women from participation on juries. It explains that until the 1970s, and in some cases even the 1990s, substantial formal limitations on jury franchise were placed on women in Ireland, Canada, the United States, New Zealand and Australia. This situation existed notwithstanding women’s equality of political franchise through the vote and despite judicial references to the centrality of the jury. While in England and Wales women were not treated differently from men in formal terms after the 1920s, property qualifications denied them substantive equality and informal limitations excluded women disproportionately. We highlight some distinctive features of the English experience as compared and contrasted with the laws and policies on jury composition operating in other jurisdictions, and ask whether the legacies left by the traditionally unrepresentative jury and the battles for gender equality offer lessons relevant to understanding jury trials in contemporary times.

A post-colonial legal approach to the Chagos case and the (dis)application of land rights norms

AbstractOne way of understanding the exile of the Chagos Islanders and their inability to return to their ancestral land is through a reading of the case from a perspective of post-colonial legal scholarship. Chagossians have strong legal rights to land and remedies of compensation and return through a purposive application of the international legal definition of Indigenous, Magna Carta right to abode and international human rights law that could address their dispossession. Yet, the inability of those rights to be meaningfully applied has been constrained because of the post-colonial way they are legally interpreted, creating a legal vacuum in which basic fairness and substantive equality have been routinely compromised. Drawing attention to the continued legal denial of return in the context of decolonisation, ongoing colonialism and the rule of law makes sense of the legal record and explains the expulsion of the islanders despite the moral merits of return.

Equality bodies

The Treaty of Amsterdam and the subsequent adoption in 2000 of the so-called Race Directive was a genuine paradigm shift in European equal treatment legislation and practice. One of the major developments resulting from this Treaty change and new Directive was the introduction of a requirement for all European Union (EU) Member States to set up bodies for the promotion of equal treatment, first on the ground of race and ethnic origin, later extended to the ground of gender. This article analyses the emergence of these bodies – equality bodies – in EU Member States and candidate countries and the role they play in promoting equality and the implementation and monitoring of EU equal treatment legislation. It argues that equality bodies have a significant potential to contribute to more equal societies and they have proved to be effective agents of change. They do so, among others, by contributing to relevant case law in front of the Court of Justice of the EU leading to the further development and clarification of EU and national equal treatment legislation. The article also looks at the challenges experienced by equality bodies in different European countries as factors that influence and might limit their potential and contribution. To conclude, the article examines the necessary conditions for equality bodies to effectively contribute to the implementation of EU legislation and the achievement of substantive equality and it assesses whether current standards for equality bodies can guarantee these conditions.

Achieving pay equity: Strategic mobilization for substantive equality in Aotearoa New Zealand

In an unprecedented move the New Zealand Government in 2017 announced a $2 billion pay equity settlement for 55,000 healthcare workers in aged and disability residential care and home and community support services. The settlement reversed the Government's previous austerity stance that pay equity for carers was too expensive, and that pay parity in the sector was out of the question. The political concession followed five years of intensive equal pay feminist activism. While pay equity settlements overseas have generally used either legal opportunity structures or government intervention, this article argues it was the combination of complementary and intersecting elements of mobilization that led to the negotiated settlement. These elements include a statutory human rights inquiry; legal opportunity; civil society coalition building; increased women's voice; and a government‐led negotiated settlement. The novel theoretical contribution of this article is its empirical support for the concept of substantive equality.

INTESTATE SUCCESSION AND THE SURVIVOR OF AN UNFORMALISED SAME-SEX CONJUGAL RELATIONSHIP: Laubscher No v Duplan 2017 (2) SA 264 (CC)

When a person dies intestate his or her heirs are determined by the provisions of section 1(1) and (2) of the Intestate Succession Act 81 of 1987. Included amongst the heirs is the deceased’s surviving spouse, who either takes the entire estate or shares it with the deceased’s descendants (if any). Historically, the reference to “spouse” in the Act was taken to mean a person to whom the deceased was married in terms of the Marriage Act 25 of 1961. Accordingly, persons who were married to the deceased merely by religious rites and persons with whom the deceased was in a long-term conjugal relationship that was unformalised by marriage were excluded.The advent of constitutional democracy in South Africa resulted in a number of challenges to this status quo through reliance on the equality clause of the Bill of Rights. As a result of these challenges it has now been recognised that the survivor of a Hindu marriage, a monogamous Muslim marriage, and a polygynous Muslim marriage all have the right to inherit on intestacy as a “spouse”. Furthermore, in a groundbreaking decision in Gory v Kolver NO (Starke and others intervening) (2007 (4) SA 97 (CC)) the Constitutional Court recognised that the exclusion of the surviving partner of a gay or lesbian relationship from the right to inherit on intestacy was unconstitutional, and directed that the relevant sections of the Intestate Succession Act be amended by a reading-in of additional words to remedy the unconstitutionality. These words conferred the right to inherit on intestacy on the survivor of a monogamous permanent same-sex partnership in which the partners undertook reciprocal duties of support. At the time of writing no survivor of an unformalised opposite-sex relationship has challenged his or her exclusion from intestate succession. Possibly this reticence has been influenced by the decision in Volks NO v Robinson (2005 (5) BCLR 446 (CC)) (hereinafter “Volks”). In Volks the Constitutional Court held that it is not unconstitutional for the Maintenance of Surviving Spouses Act 27 of 1990 to distinguish between married and unmarried persons by giving the survivor of a marriage a claim for reasonable maintenance against the estate of the deceased spouse but not giving a similar claim to the survivor of a relationship in which the parties did not marry.Paleker has raised the question whether the Gory order “must still be applied in light of the Civil Union Act” but he comes to no firm conclusion, and states tentatively that “if marriage … is a precondition for inheriting, persons in same-sex unions who have not solemnised their relationship after the coming into force of the Civil Union Act … may be precluded from inheriting intestate from each other”. On the other hand De Waal and Schoeman-Malan are clearly of the view that the order in the Gory case still operates and – whilst regarding the current position as “anomalous” – they state that it “will probably continue until the Domestic Partnerships Bill [GN36 in GG 30663 of 2008-1-14] eventually does become law”. This has also been the interpretation accepted by the Master’s office acting on advice from the Senior State Law Advisor. The different treatment accorded same-sex couples by the continued retention of the benefits conferred by Gory has been defended on the grounds of substantive equality, since many practical obstacles still stand in the way of same-sex couples formalising their relationships.The question of the continued applicability of the reading-in order in Gory has now come before the Constitutional Court in Laubscher NO v Duplan (2017 (2) SA 264 (CC)) and it is this case which is the focus of this note.

The Vulnerability of Heterosexuality: Consent, Gender Deception and Embodiment

This article considers the institutional frameworks that privilege heterosexuality, police notions of sex and gender and individualize discussions and responsibilities around consent. In doing so, Vulnerability theory is drawn upon and added to through the introduction of a richer conception of embodiment. By understanding embodiment as a product of corporeality, discourse and institutions, vulnerability theory is better equipped to engage with the complexities of LGBTIAQ identities. The article traces these developments by engaging with a series of recent criminal law cases concerning deception as to gender. It then reflects upon the ways in which institutions such as law, the family and educational systems focus on individualizing responsibilities around consent rather than focusing on their own role in creating the conditions under which non-heterosexual sex is disincentivized, constructed as predatory and ultimately criminalized. It concludes by demanding a new approach from the state that moves away from carceral approaches towards educative programmes grounded in substantive equality.

The possibility of a libertarian Marxism? A reply to Löwy and Besancenot

Löwy and Besancenot (2018) make compelling arguments, with deep and thoughtful reference to infamous revolutionaries Luxemburg, Benjamin, Breton, and Guérin. In this process, they lay out some clear and compelling principles for a libertarian Marxism and a libertarian communism. And these will surely resonate with the large number of people who are forced to experience the limitations of capitalist democracy on a daily basis. These four thinkers remind us that we need is bottom-up democracy and substantive equality in every aspect of life. However, there are limitations to what they can offer that require further discussion and debate. This reply focuses on three of these limitations: the question of spontaneity, the need for radical education, and the concept of individual freedom.

The Inadequacy of Judicial Enforcement of Constitutional Rights Provisions to Rectify Economic Inequality, and the Inevitability of the Attempt

This essay, to appear in a chapter in Judicial Review: Process, Power and Problems, edited by Shruti Bedi and Lokendra Malik, a festschrift for Upendra Baxi, argues that the pursuit of judicially enforced social welfare and equality rights in the modern world is bound to fail but must be pursued. The contemporary picture of judicial enforcement of social welfare rights in one in which there is a consensus that such enforcement is possible, general agreement that enforcement should be dialogic rather than coercive, and a sense that enforcement is rather less effective than is desirable. As to the last, the essay argues that the predicate for generating resources to finance the provision of social welfare rights – investment from abroad – generates economic and legal limitations that inhibit the government from accumulating those resources. The essay develops a parallel argument about judicial enforcement of substantive equality rights, referring specifically to problems associated with the horizontal effect/state action doctrine. The conclusion here is that courts have the capacity to move outcomes in the direction of substantive equality, and might not face overwhelming constraints from the domestic political system, but their ability to achieve true substantive equality is limited by economics, both domestic and international. Yet, where constitutions are committed to substantive equality and social and economic rights, the lesson of the twentieth century is that judges will – and should – attempt to enforce those commitments. Enforcing the constitution – the entire constitution – is what democratic-minded citizens have come to expect of their courts. What is needed is a realistic understanding of what courts can accomplish – less than one might hope (the noble dream), but more than nothing (the nightmare). The attempt more than the achievement is what matters. The task then might be to develop a judicial rhetoric associated with the enforcement of these rights that effectively communicates why what the courts are doing is worth doing, why what they are doing is not enough, and why it is as much as the courts can do.

Women's Representation Provisions in Electoral Laws. An Assessment of Chilean Recent Electoral Reform

The article addresses the issue of women’s representation in electoral legislation, focusing on the latest amendments of Chilean electoral laws. It first examines the conceptual relationship between representative democracy and equality, distinguishing between formal and substantive equality and representation, in order to fully understand the potential impact of electoral laws on women’s representation. A comparative perspective is then offered, showing the current representation of women in Parliaments and reviewing the connection with different features of electoral systems. In this context, gender quotas are analysed as one of the main mechanisms that have been used to increase women representation. Finally, the recent amendments of Chilean electoral law on this issue are presented, in order to anticipate what we can expect for women’s representation in the years to come.

Private Law Exceptionalism? Part II: A Basic Difficulty with the Argument from Formal Equality

Contemporary discussions of private law theory often assume that parties in a private law interaction can relate as equals if, and only if, equality is cast in terms of formal equality (sometimes called transactional equality). I devote these pages to refute this conceptual view, showing that it does not draw correctly the map of the logical space in which conceptions of private law equality are located. Negatively, I argue that the formal conception of equality, most comprehensively defended by certain influential corrective justice theories, does not exhaust this space. Affirmatively, I argue that this space provides room for at least one more conception which I call ‘substantive equality’.

The Abolition of the Insanity Defense in Sweden and the United Nations Convention on the Rights of Persons with Disabilities

The U.N. Convention on the Rights of Persons with Disabilities (CRPD) may require the abolition of the insanity defense and similar “special defenses” in criminal law. Proponents argue that abolishing the defense would advance efforts to fully recognize the legal capacity of persons with disabilities on an equal basis with others; detractors suggest it would compound the substantive inequality of an already marginalized population. This paper seeks to accelerate this debate with reference to Swedish criminal law, which saw the abolition of the insanity defense in 1965. Neither side of the debate appears to have considered the anomaly of Swedish criminal law. Equally, Swedish legislators appear to have overlooked CRPD-based considerations. Instead, Sweden seems likely to reintroduce the insanity defense following long-standing domestic criticism. This paper brings together developments in Sweden and international human rights law, and draws out conceptual and practical lessons in the quest for due process rights and substantive equality for people with disabilities in criminal law.

The Greek Divorce Law Reform of 1983 and Its Impact on Homemakers: A Social and Economic Analysis

In 1983, Greek Family Law was radically amended on the basis of gender equality and divorce law was liberalized, with the introduction of no-fault divorce and divorce by mutual consent. We aim to assess the potentially wide-ranging effects of the new divorce law on the social and economic status of homemakers in traditional, long-duration marriages. We reviewed a sample of 500 reported judicial decisions on maintenance and postdivorce distribution of marital property, finding that the new gender-neutral statutes on maintenance fail to protect the interests of homemakers after divorce. We identify judicial attitudes that misconstrue formal gender equality for substantive equality as a determining factor for such negative outcomes. We propose a new reliance-based model for Greek alimony law and illustrate that reliance is the most effective legal formula for acknowledging the nonpecuniary contributions of homemakers. Our research further demonstrates that homemakers are disadvantaged by the postdivorce distribution of marital property. We identified a number of problems that seriously compromise a homemaker's chances of receiving a fair share of marital acquests. The most prominent among them is that Greek courts do not apply clear-cut standards in evaluating a homemaker's domestic services, thus attaching a low value to their contributions within marriage. Yet another problem is that intangible assets (like the husband's postdivorce income and his pension benefits) are not designated as divisible marital property. We conclude by arguing that the reform was overall socially effective; however, it had an unintended negative impact on divorced homemakers. First, because the legislators did not include any special provisions on homemakers. Second, because judges have generally interpreted the new statutes as if men and women are always equal on divorce, and further, as if all women are similarly situated. To remedy these after-effects, we make specific proposals for future amendments. The central idea underlying these proposals is that divorce should be made more difficult for married couples with children. Lastly, we consider a number of measures that Greek policymakers can adopt in view of protecting divorced women and their children, while at the same promoting the social value of intact families. [This is an unpublished doctoral thesis submitted to the University of Chicago and supervised by Prof. Gary S. Becker, Judge Richard A. Posner and Prof. Mary A. Becker]

A Comparative analysis of Intersectionality under Discrimination Law in the Light of Vulnerability Theory as a Post-Identity Approach

In spite of the presence of intersectionality as a concept in feminist literature for over twenty-five years, the State Policy, across the world, has been ignorant towards the interplay of identities and its role in the discrimination law jurisprudence. This article claims that a legitimate accommodation of a multi-ground claim under the Right to Equality regime, present in various legal systems, shall be a purposive step towards substantive equality. The article also highlights certain frailties associated with Intersectionality and introduces the age-old dilemma surrounding the formulation of State Policy, as to whether it should be ―identity-neutral‖ like anti-classification principle, or ―identity-sensitive‖ like intersectionality itself. The article also introduces the vulnerability theory proposed by Martha Fineman, as a post identity approach. The final analysis, explains how the two theories can coexist so that the State Policy can move towards substantive equality, and thus, mitigate the horrors of discrimination.

A Post-Colonial Legal Approach to the Chagos Case and the (Dis)application of Land Rights Norms

One way of understanding the exile of the Chagos Islanders and their inability to return to their ancestral land is through a reading of the case from a perspective of post-colonial legal scholarship. Chagossians have strong legal rights to land and remedies of compensation and return through a purposive application of the international legal definition of Indigenous, Magna Carta right to abode and international human rights law that could address their dispossession. Yet, the inability of those rights to be meaningfully applied has been constrained because of the post-colonial way they are legally interpreted, creating a legal vacuum in which basic fairness and substantive equality have been routinely compromised. Drawing attention to the continued legal denial of return in the context of decolonisation, ongoing colonialism and the rule of law makes sense of the legal record and explains the expulsion of the islanders despite the moral merits of return.

Women in Prison: Liberty, Equality, and Thinking Outside the Bars

This article considers the potential of rights-based advocacy to respond to the troubling reality of a growing women's prison population, and it makes an attempt to sketch out an approach to advocacy and scholarship that seeks both liberty and substantive equality for criminalized and imprisoned women. It proceeds in four parts. First, it documents some of the legislative and policy changes made to sentencing and penal law in the last decade. Next, it identifies some of the ways that these changes have an impact on women and on particular groups of women. It then suggests some ways that academics, lawyers, law students, and other feminist advocates might have a role in resisting the punishment agenda and seeking liberty and substantive equality for criminalized women. Finally, it considers thinking outside the bars in the light of the exploding number of incarcerated Indigenous women in Canada.

Freedom of Expression, Academic Freedom, and Equality: Seven Institutional Responsibilities

This paper considers the institutional responsibilities that arise from the separate but related values of freedom of expression, academic freedom, and equality rights at Canadian public universities. It introduces some applicable Canadian legal principles and considers whether freedom of expression can properly be limited. It also addresses the importance of institutional support for those who face threats or unfair criticism as a result of activities performed in the course of their university role. The paper argues that universities should actively foster a robust and inclusive institutional culture that advances substantive equality while ensuring that policies and procedures do not place disproportionate burdens on those who bear greatest risks.

The relevance of substantive equality in the African regional human rights system’s jurisprudence to women’s land and property rights

ABSTRACT: Over the last 15 years there have been concerted efforts to put in place frameworks on the protection of women’s land and property rights both at the international and domestic levels. Despite the proliferation of these instruments and their supposed recognition across the African continent, the actual realisation and enjoyment of these rights by women is still scant. Systemic and systematic violations of women’s rights persist. Such a state of affairs where the recognition of WLPR exists alongside violations of the protected rights points to the widely accepted fact that the realisation of WLPR cannot solely be achieved through the enactment of laws and policies that address the direct discrimination. From a legal perspective, there is need for jurisprudence that comprehensively outlines the content of rights and state obligations. In order to be fully conscious of the various limitations and challenges that exist towards the realisation of WLPR, bodies of the African human rights system have to use a substantive lens to interpret and apply equality and non-discrimination in such cases. That way the rights of women to land and property on the African continent may be guaranteed and protected.
 
 TITRE ET RÉSUMÉ EN FRANÇAIS: La pertinence de l’égalité réelle dans la jurisprudence du système régional africain des droits de l’homme pour les droits fonciers et de propriété des femmes RÉSUMÉ: Au cours des 15 dernières années, des efforts concertés ont été déployés pour mettre en place des cadres nationaux et internationaux relatifs à la protection des droits fonciers et de propriété des femmes. Malgré la prolifération de ces instruments et leur supposée reconnaissance à travers le continent africain, la réalisation et la jouissance réelles de ces droits par les femmes sont encore rares. Les violations systémiques et systématiques des droits des femmes persistent. Un tel état de choses, où la reconnaissance des droits fonciers et de propriété des femmes existe en même temps que les violations des droits protégés, indique que la réalisation de ces droits ne peut être atteinte par la seule promulgation de lois et politiques traitant de la discrimination directe. D’un point de vue juridique, il y a un besoin de jurisprudence qui définit globalement le contenu des droits et des obligations de l’Etat. Afin d’être pleinement conscients des différents limites et défis existant quant à la réalisation des droits fonciers et de propriété des femmes, les organes du système africain des droits de l’homme doivent adopter une approche basée sur la réalité pour interpréter et appliquer l’égalité et la non-discrimination dans de tels cas. Ainsi, les droits fonciers et de propriété des femmes sur le continent africain pourraient être garantis et protégés.

Substantive equality revisited: A rejoinder to Sandra Fredman

Substantive equality revisited: A rejoinder to Sandra Fredman

Human rights and sexuality - reimagining the language of equality towards transformation in and through education

For many years, arguments in favour of sexual minorities’ equality and sexuality rights have brought about legal reform worldwide. Although there are those who would contend that human rights and legal mechanisms associated with minorities could contribute to some positive experiences for sexual minorities, others have pointed out that legal reform brought about by the anti-discrimination laws does not necessarily result in a noticeable change in people’s discriminatory attitudes, nor does it automatically translate into lived experiences of equity for minority groups. Research in the education sector shows that despite promises of inclusion and non-discrimination brought about by human rights law, many education institutions “continue to reproduce patterns of heterosexism” (Francis and Msibi 2011, 160). Drawing from a project titled “Human Rights Literacy: A search for meaning”, the article explores how students in higher education institutions conceptualise sexual equality within a human rights discourse. Findings reported here indicate that the non-translation of legal rights into inclusion and equality for sexual minorities might be due to the gap between formal and substantive conceptualisations of equality. Acknowledgment of sexual minorities’ equal rights appears to be superficial while students seemingly lack an awareness of the gap between formal equality and substantive equality and the inequalities that play out in this gap. Against the background of sexual minorities’ unequal treatment and experiences, this article aims to re-imagine the language of equality towards equity for all sexualities in and through education.

A New Era in Human Rights Promotion and Protection in Kenya? An Analysis of the Salient Features of the 2010 Constitution's Bill of Rights

The Bill of Rights in the Constitution of Kenya (2010) is unique in a number of critical respects. It exhibits the following salient features – it has an exhaustive catalogue of entitlements, contains the different genres of human rights; provides for an expansive ‘non-discrimination clause’; expresses regard for substantive equality (affirmative action); reserves certain rights from derogation; carries special regulation of emergencies; espouses a conservative strain of moral philosophy; opts for a centralised limitation clause as opposed to multiple internal limitation clauses; and has both vertical and horizontal implications. The Bill of Rights also comes with viable enforcement apparatuses.