Laws | Special Issue : Legally Constructed Gendered Identities

Research

21 pages, 220 KiB

Open AccessArticle

The Age of Consent and the Ending of Queer Theory

by Sarah Beresford

Laws 2014, 3(4), 759-779; https://doi.org/10.3390/laws3040759 - 22 Oct 2014

Cited by 4 | Viewed by 16127

This article uses the debates surrounding the age of consent as a broad umbrella to question the continued usefulness of Queer Theory. The debates surrounding the age of consent illustrate that Queer Theory has not fulfilled its original promise and that it is [...] Read more.

This article uses the debates surrounding the age of consent as a broad umbrella to question the continued usefulness of Queer Theory. The debates surrounding the age of consent illustrate that Queer Theory has not fulfilled its original promise and that it is not (and possibly never been), “fit for purpose”. Towards the end of 2013, the topic of lowering the age of consent in England and Wales was once again much in the news. This article suggests that much of that debate focused expressly or impliedly on the age of which men and boys have sexual intercourse (whether gay or straight), rather than when people have sexual intercourse. Queer Theory (originating from feminism), was intended to be a liberating phenomenon, but contrary to these hopes and intentions, Queer Theory evolved to become synonymous with white gay men, thus denying its origins and becoming distinctly anti-feminist. Those who argue for a reduction in the age of consent have used (whether knowingly or not) an approach which is consistent with this evolved version of Queer Theory. Consequently, the debate on the age of consent has ignored, or given insufficient attention to, the effect(s) a lowering of the age of consent will have on girls and women. This article, therefore, seeks to question, disrupt and unsettle, what Queer Theory has become, suggesting that, in several significant aspects, it fails to fully acknowledge patriarchy; render (lesbian) women visible; acknowledge and accommodate the lived experiences of women. Full article

(This article belongs to the Special Issue Legally Constructed Gendered Identities)

19 pages, 246 KiB

Open AccessArticle

Should Postponing Motherhood via “Social Freezing” Be Legally Banned? An Ethical Analysis

by Stephanie Bernstein and Claudia Wiesemann

Laws 2014, 3(2), 282-300; https://doi.org/10.3390/laws3020282 - 5 Jun 2014

Cited by 24 | Viewed by 11324

Abstract

In industrial societies, women increasingly postpone motherhood. While men do not fear a loss of fertility with age, women face the biological boundary of menopause. The freezing of unfertilized eggs can overcome this biological barrier. Due to technical improvements in vitrification, so-called “social [...] Read more.

In industrial societies, women increasingly postpone motherhood. While men do not fear a loss of fertility with age, women face the biological boundary of menopause. The freezing of unfertilized eggs can overcome this biological barrier. Due to technical improvements in vitrification, so-called “social freezing” (SF) for healthy women is likely to develop into clinical routine. Controversial ethical debates focus on the risks of the technique for mother and child, the scope of reproductive autonomy, and the medicalization of reproduction. Some criticize the use of the technique in healthy women in general, while others support a legally defined maximum age for women at the time of an embryo transfer after oocyte cryopreservation. Since this represents a serious encroachment on the reproductive autonomy of the affected women, the reasons for and against must be carefully examined. We analyze arguments for and against SF from a gendered ethical perspective. We show that the risk of the cryopreservation of oocytes for mother and future child is minimal and that the autonomy of the women involved is not compromised. The negative ethical evaluation of postponed motherhood is partly due to a biased approach highlighting only the medical risks for the female body without recognizing the potential positive effects for the women involved. In critical accounts, age is associated in an undifferentiated way with morbidity and psychological instability and is thus used in a discriminatory way. We come to the conclusion that age as a predictor of risk in the debate about SF is, from an ethical point of view, an empty concept based on gender stereotypes and discriminatory connotations of aging. A ban on postponing motherhood via SF is not justified. Full article

(This article belongs to the Special Issue Legally Constructed Gendered Identities)

27 pages, 405 KiB

Open AccessArticle

Sexual Diversity in the Judiciary in England and Wales; Research on Barriers to Judicial Careers

by Leslie J. Moran

Laws 2013, 2(4), 512-538; https://doi.org/10.3390/laws2040512 - 18 Dec 2013

Cited by 1 | Viewed by 9094

Abstract

Debates about the diversity of the judiciary in the UK have been dominated by gender, race and ethnicity. Sexuality is notable by its absence and is perceived to pose particular challenges. It is usually missing from the list of diversity categories. When present, [...] Read more.

Debates about the diversity of the judiciary in the UK have been dominated by gender, race and ethnicity. Sexuality is notable by its absence and is perceived to pose particular challenges. It is usually missing from the list of diversity categories. When present, its appearance is nominal. One effect of this has been a total lack of official data on the sexual composition of the judiciary. Another is the gap in research on the barriers to the goal of a more sexually diverse judiciary. In 2008 the Judicial Appointment Commission (JAC) for England and Wales undertook research to better understand the challenges limiting progress towards judicial diversity. A central gaol of the project was to investigate barriers to application for judicial appointment across different groups defined by “sex, ethnicity and employment status”. Sexual orientation was again noticeable by its absence. Its absence was yet another missed opportunity to recognise and take seriously this strand of diversity. This study is based on a response to that absence. A stakeholder organisation, InterLaw Diversity Forum for lesbian gay bisexual and transgender networks in the legal services sector, with the JAC’s approval, used their questionnaire and for the first time asked lesbian, gay, bisexual and transgender lawyers about the perceptions and experiences of barriers to judicial appointment. This paper examines the findings of that unique research and considers them in the light of the initial research on barriers to judicial appointment and subsequent developments. Full article

(This article belongs to the Special Issue Legally Constructed Gendered Identities)

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29 pages, 172 KiB

Open AccessArticle

Defining Boundaries: Gender and Property Rights in South Africa’s Traditional Courts Bill

by Thuto Thipe

Laws 2013, 2(4), 483-511; https://doi.org/10.3390/laws2040483 - 13 Dec 2013

Cited by 2 | Viewed by 7634

Abstract

In 2008, the Traditional Courts Bill (TCB) was introduced in South Africa’s Parliament to regulate customary courts in place of the apartheid-era Black Administration Act. The TCB has come under wide ranging attack from civil society across the country, including from people based [...] Read more.

In 2008, the Traditional Courts Bill (TCB) was introduced in South Africa’s Parliament to regulate customary courts in place of the apartheid-era Black Administration Act. The TCB has come under wide ranging attack from civil society across the country, including from people based in the former homelands where the Bill would have effect, for its perpetuation of colonial and apartheid distortions of customary law, and its continuation of the oppressions justified through these distortions. In this article, I examine some of the major epistemic developments in customary law in South Africa, from colonialism to the present, to highlight key logics and genealogies of power that form the foundation and framework for ‘official customary law’. This examination provides the context for analysing the epistemological de-linking from colonial frameworks represented in women’s claims to land, and reveals how changes in women’s access to land over the years allows for a reading of epistemological shifts and contestations in customary law. I read these developments alongside the content of the TCB to examine different references for custom represented in both colonially rooted knowledges and de-colonial knowledges that challenge the premises of the former. Full article

(This article belongs to the Special Issue Legally Constructed Gendered Identities)

14 pages, 122 KiB

Open AccessArticle

Regulating Lesbian Motherhood: Gender, Sexuality and Medically Assisted Reproduction in Portugal

by Tânia Cristina Machado and Ana Maria Brandão

Laws 2013, 2(4), 469-482; https://doi.org/10.3390/laws2040469 - 26 Nov 2013

Cited by 3 | Viewed by 5428

Abstract

This article analyses juridical discourses about Medically Assisted Reproduction (MAR) in Portugal, focusing specifically on the access of lesbians to this type of intervention. Empirical data refer to an exploratory research that combined the analysis of legislation with non-directive interviews to five judges [...] Read more.

This article analyses juridical discourses about Medically Assisted Reproduction (MAR) in Portugal, focusing specifically on the access of lesbians to this type of intervention. Empirical data refer to an exploratory research that combined the analysis of legislation with non-directive interviews to five judges from Family and Juvenile Courts of Law of the Northern Region of Portugal. One argues that the representation of motherhood present in the law reinforces and reproduces normative sexuality and femininity while simultaneously justifies the exclusion of lesbians from MAR. As such, although Portuguese legislation emerges as a mechanism of partial deregulation of the gender regime since it appears to weaken the practical and causal association between sexuality and procreation, in fact, it ends up reinforcing dominant ideas of femininity and family. As for the judges who were interviewed, their representations of motherhood are broad enough to encompass medically assisted motherhood and/or motherhood accomplished within a lesbian couple. This is achieved through a process of normalisation of the lesbian and/or of lesbian motherhood, which may resort to five different assumptions: (i) parenthood as a desire inherent to every human being; (ii) motherhood as a defining element of femininity; (iii) motherhood as a project framed by a stable conjugal relationship; (iv) lesbian motherhood as something that can be accomplished through “natural” means; (v) parenthood as a mechanism of social reproduction of the gender regime. These assumptions are differently combined and support different positions regarding lesbian motherhood: although some judges seem to concur with the preservation of heteronormativity, most favour legal changes to encompass other models of sexuality and family. Full article

(This article belongs to the Special Issue Legally Constructed Gendered Identities)

14 pages, 187 KiB

Open AccessArticle

Identity/Time

by Nancy J. Knauer

Laws 2013, 2(3), 362-375; https://doi.org/10.3390/laws2030362 - 23 Sep 2013

Cited by 4 | Viewed by 5136

Abstract

This paper engages the unspoken fourth dimension of intersectionality—time. Using the construction of lesbian, gay, bisexual, and transgender (LGBT) identities as an example, it establishes that identity, as it is lived and experienced, is not only multivalent, but also historically contingent. It then [...] Read more.

This paper engages the unspoken fourth dimension of intersectionality—time. Using the construction of lesbian, gay, bisexual, and transgender (LGBT) identities as an example, it establishes that identity, as it is lived and experienced, is not only multivalent, but also historically contingent. It then raises a number of points regarding the temporal locality of identity—the influence of time on issues of identity and understanding, its implications for legal interventions, social movement building, and paradigms of progressive change. As the title suggests, the paper asks us to consider the frame of identity over time. Full article

(This article belongs to the Special Issue Legally Constructed Gendered Identities)

25 pages, 240 KiB

Open AccessArticle

“The Mad”, “The Bad”, “The Victim”: Gendered Constructions of Women Who Kill within the Criminal Justice System

by Siobhan Weare

Laws 2013, 2(3), 337-361; https://doi.org/10.3390/laws2030337 - 18 Sep 2013

Cited by 29 | Viewed by 49265

Abstract

Women commit significantly fewer murders than men and are perceived to be less violent. This belief about women’s non-violence reflects the discourses surrounding gender, all of which assume that women possess certain inherent essential characteristics such as passivity and gentleness. When women commit [...] Read more.

Women commit significantly fewer murders than men and are perceived to be less violent. This belief about women’s non-violence reflects the discourses surrounding gender, all of which assume that women possess certain inherent essential characteristics such as passivity and gentleness. When women commit murder the fundamental social structures based on appropriate feminine gendered behaviour are contradicted and subsequently challenged. This article will explore the gendered constructions of women who kill within the criminal justice system. These women are labelled as either mad, bad or a victim, by both the criminal justice system and society, depending on the construction of their crime, their gender and their sexuality. Symbiotic to labelling women who kill in this way is the denial of their agency. That is to say that labelling these women denies the recognition of their ability to make a semi-autonomous decision to act in a particular way. It is submitted that denying the agency of these women raises a number of issues, including, but not limited to, maintaining the current gendered status quo within the criminal law and criminal justice system, and justice both being done, and being seen to be done, for these women and their victims. Full article

(This article belongs to the Special Issue Legally Constructed Gendered Identities)

23 pages, 310 KiB

Open AccessArticle

Separate and Unequal: Judicial Culture, Employment Qualifications and Muslim Headscarf Debates

by Joyce Marie Mushaben

Laws 2013, 2(3), 314-336; https://doi.org/10.3390/laws2030314 - 13 Sep 2013

Cited by 2 | Viewed by 6204

Abstract

Few European lawmakers have analyzed the implications of Muslim headscarf bans for equal employment opportunity. EU anti-discrimination directives suggest that contradictory member-state approaches will eventually invoke a judicial Community response at national expense. Drawing on the bona fide occupational qualification (BFOQ) standard, this [...] Read more.

Few European lawmakers have analyzed the implications of Muslim headscarf bans for equal employment opportunity. EU anti-discrimination directives suggest that contradictory member-state approaches will eventually invoke a judicial Community response at national expense. Drawing on the bona fide occupational qualification (BFOQ) standard, this study compares the “judicial cultures” of the U.S. Supreme Court, the German Constitutional Court, the European Court of Human Rights (ECHR) and the European Court of Justice (ECJ). It argues that while the ECJ initially invoked Roman law precepts shared by a majority of its member-states through the 1980s, it has come to embrace Anglo-American norms stressing individual freedoms over state interests. Given their strong support for equal treatment and social inclusion, EU justices will be more likely than member-state or ECHR judges to overturn existing bans on hejab at the workplace, once such a case makes its way onto the ECJ docket. Full article

(This article belongs to the Special Issue Legally Constructed Gendered Identities)

18 pages, 213 KiB

Open AccessArticle

Sodomy Laws and Gender Variance in Tahiti and Hawai‘i

by Aleardo Zanghellini

Laws 2013, 2(2), 51-68; https://doi.org/10.3390/laws2020051 - 9 Apr 2013

Cited by 3 | Viewed by 24986

Abstract

In both Hawaiian and Tahitian, the central meaning of mahu denotes gender-variant individuals, particularly male-bodied persons who have a significant investment in femininity. However, in Hawai‘i, unlike Tahiti, the word mahu is now more commonly used as an insult against gay or transgender [...] Read more.

In both Hawaiian and Tahitian, the central meaning of mahu denotes gender-variant individuals, particularly male-bodied persons who have a significant investment in femininity. However, in Hawai‘i, unlike Tahiti, the word mahu is now more commonly used as an insult against gay or transgender people. The negative connotation of the term in Hawaiian indexes lower levels of social acceptability for mahu identity on O‘ahu (Hawai‘i’s most populous island) as compared to Tahiti. The article argues that these differences are partly due to a historical legacy of sexually repressive laws. The article traces the history of sodomy laws in these two Polynesian societies and argues that this history supports the hypothesis that sodomy laws (in conjunction with such social processes as urbanisation and Christianisation) are partially to blame for the diminished social status of mahu on O‘ahu. A different social and legal history in Tahiti accounts for the fact that the loss of social status experienced by Tahitian mahu has been lesser than that of their Hawaiian counterparts. Full article

(This article belongs to the Special Issue Legally Constructed Gendered Identities)

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