Friday, 11 February 2011

Feminist Judges - Womans Hour BBC Radio programme.


'In 2001, Natallie Evans and Howard Johnston were a couple who planned a family.

Natallie developed ovarian cancer.

Before treatment, some of her eggs were fertilized using his sperm and frozen. They separated, but she still wanted to have children. The frozen embryo's were her only chance.

Her former partner refused.

Natallie Evans: "He chose to become a father the day we created the embryo's. That was his choice to become a father, and now he doesn't want it. He cant just turn around and say that."

Howard Johnston: "The key thing for me was just to be able to decide when and if I start a family."

Natallie: "I still think he's wrong in what he's doing. I just want him to reconsider and to actually think about the implications. I know he's thinking of the implications on himself, but the implications to me aswell. He's able to go on and have children of his own, Im not."

Well the courts decided that Natallie Evans should not have the right to use the embryo's without her former partners permission.

Would the outcome have been different if a female judge had been hearing the case?

A new book, 'Feminist judgements: From Theory To Practice' suggests that a woman with a feminist tendency would have found in favor of Natallie Evans, and looks at a number of other well known cases to see wether the argument holds true across the board.

But is it any more acceptable for a woman to be influenced by her political prejudice, than it is for a man to follow his?

Baroness Ruth Deech is chair of The Bar Standard Board. Claire McGlynn is professor of law at Durham University.

Interviewer to McGlynn: "Claire why would a feminist have found in favor of Evans?"

McGlynn: "What happened in the Evans case, and Sonia Harris-Short's judgement (a feminist barrister and co-author of the book), is that she foregrounded Natallie Evans experiences. But its important to say here that what she was doing was foregrounding the experience of infertile people, and that could be an infertile woman, or an infertile man. But its also important to say there are a variety of different feminist perspectives. This feminist judgement would have found in accordance with Natallie Evans, another feminist judge could have reached a different outcome. The point is about bringing a range of values and perspectives to the judicial decision making process."

Interviewer to Deech: "Ruth, how different might the judgement have been if you had been on the bench?"

Deech: "I probably would have given the same judgement (to deny Natallie Evans), but we really are between a rock and a hard place. I think you really have to understand that there is a difference between being a woman judge, and being a feminist, and this book which is absolutely brilliant and should be on everyones shelf perhaps doesnt make that quite clear, but it does admit that a man could be a feminist judge, and a woman judge might not be.

There are two different arguments here. One is for having more women on the bench, yes, and another is to have more feminist judgements, where there is a something of a risk of subsituting one set of stereotypes for another.

Now, in the Evans case, the way the judgement is rewritten in this book, it's very womb-centered. A woman wants to be a mother and thats much more important than a man wanting to be a father. And it kind of plants this new perspective on them. But I feel a bit sorry for the male partner in that case, he said he only wanted to be a real father. He didnt want a child to be brought into the world without him there, as a single-parented child.

You can only really go for Natallie Evans wholeheartedly if you see all women as walking wombs, and its much more important for them to be mothers, than for men to make their decisions aswell."

Interviewer to McGlynn: "Claire, how did you select the cases you were going to look at (in the book)?"

McGlynn: "Well, the cases were chosen by the judgement writers who wished to be involved in the project, and they chose cases that were fundamental to womens interests, and feminist interests, across a whole range of issue's. We wanted to cover the traditional cases, those case do to with equality law, rape law, but also cover cases which might be seen to be indirectly related to womens interests, contract law, property law, etc."

Interviewer to McGlynn: "And how often, Claire, did you come to a different conclusion, and how often the same conclusion?"

McGlynn: "To highlight the differences, in about half of the times, the feminist judgement would have come to a different conclusion. But there are also very interesting aspects. Four of the feminist judgements disagree with the judgement of Brenda Hale, who of course is one of our feminist judges. Another range of judgements would have reached the same outcome with a different form of reasoning, often about telling the womans experiences more clearly. So there was a whole range of different outcomes and perspectives."

Interviewer to Deech: "Ruth, how ready are you to accept that there is a gender bias in legal doctrine and judicial reasoning?"

Deech: "Im not sure about that. I mean first of all the public must be reassured that if they're infront of a judge, and that judge is black, or a woman, or red haired, or catholic, it doesnt matter. A judge must speak for everybody, and it would be a big mistake to give the impression that if theres a woman judge on the bench, she's only going to pursue a particular gender biased way of thinking. That would be absolutely wrong, and undermine confidence in the judicial system. Diversity across the board, of course, but once a judge is sitting there, they've got to be a judge for everybody. And then there are lots of inconsistencies. I would have liked to have seen this book go for some of these shocking anti-feminist high maintenance awards. What does the feminist judge say about a case where a pretty model has been married to a footballer for a couple of years, and they get divorced and she walks away with more millions than the average woman will ever see in a working life? And again on the rape front, there are some real difficulties here, the book says we need to tackle the laws understanding of rape, so that when a woman says 'I was raped.', the law says 'I believe you.' Well, this morning, Im looking at the stories about Mr Assange, and the celeb's are flocking in to bale him out. Of course they say the rape accusation against him is political, well, you've got to be true to your principles if rape is rape."

Interviewer to McGlynn: "Claire, the question is, why do you seem to be suggesting that its acceptable to bring a feminist prejudice to a judgement, but not a misogynist one?"

McGlynn: "What we're talking about is cases in the highest courts, where the law effectively runs out. Judges could reach a different conclusion depending on which view of the law they take. When they have to make choices, they are inevitably making those choices based on their values, assumptions, views of the law, and views of their judicial powers. So what we're saying, is when making these choices, we should be taking into account a range of values and perspectives. That can be feminist perspectives, but can also be about a very wide ranging and diverse judiciary, but we need those different perspectives in that judiciary now because often they are not there."

Interviewer to Deech: "Ruth, we need a range of people who are bringing prejudices, perhaps to the bench, but its a range of prejudices?"

Deech: "I agree in range, I wouldn't want prejudices. And actually, I think the quality of the judges we have today, because of the way they've been educated and chosen, is fantastic, and they're very concious of this sort of issue. And sometimes, to my mind, they actually bend over backwards to try and be kind to women, in their light, which results I think in these actually very unfortunate mainenance cases that I've spoken about. But many people would get quite upset if a judge sat there and said its time to bring a religious perspective to this case. We've got to be careful. A judge has got to be neutral when it comes to it, and a judge must be seen by everyone who's concerned as speaking for everybody, not speaking for a section of the community only."

(At this point, the feminist McGlynn trys to get the last word, but is cut-off by the interviewer.)

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