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Abstract:
In this discussion we start by exploring two interrelated aspects of understandings of equality. First, we look at the persistence of the understanding in law of equality as meaning only formal equality, that is, the Aristotelian notion of treating people the same, regardless of circumstances. Secondly, we examine the extent to which we have succeeded in reconceptualising some of the harms that happen to women (and other outsiders) as gendered harms, as legal claims predicated upon a recognition of inequality. We then consider why formal equality continues to have such purchase, and discuss ways in which we may continue to engage with equality more fruitfully. We discuss examples from Australia, as well as some from other countries, specifically South Africa and Canada, to illustrate different ways of approaching equality issues. We conclude our discussion with a brief review of developments in jurisdictions that take a more substantive approach to equality issues and consider the extent to which women's social, legal, and economic status have improved in these jurisdictions.

equality, formal equality, substantive equality, women's social, legal and economic status, gendered harms

Abstract:
In this article, we question whether formal legal processes have been of any value to women and other disadvantaged groups. We suggest that the processes of various law reform agencies might make them particularly unable to respond effectively to issues that affect women. First, we look at the ways in which law reform questions are asked and answered, and at the generally narrow way in which 'terms of reference' are often framed or constructed. Next, we consider the overemphasis on formal outcomes at the expense of attention to process. Finally, we examine the rather problematic relationship that formal law reform agencies have had, at least at times, with research, empirical data and socio-legal methods. Broadly, we argue that insufficient attention is paid to the real lives of those who interact with, and are impacted upon by, the law and legal system. We conclude with a reminder that even if such agencies were more effective, changes to laws can only ever constitute a small part of any profound social change. Yet for all its faults, we imagine that women will continue to turn to the law, as they have for some time now, as one (albeit limited) forum for addressing women's disadvantage.

Gender, Law Reform, Legal Strategies, Feminist Legal Scholarship

Abstract:
In 2009, Australia is debating whether to have a national bill of rights and remains one of the last western democracies that has not yet legislated for (or indeed constitutionally entrenched) some form of human rights law. Nor is there any guaranteed right to 'equality'. Nonetheless, as feminist legal scholars, our work has been centrally concerned with issues of equality. We argue that equality is deeply implicated as a value in the Australian legal system, despite the absence of some formal instrument or constitutional guarantee. This discussion asks, perhaps controversially, whether there might be some advantages that flow from that lacuna. Does an absence of formal rights protection leave room for flexibility and for more creative responses for those who have been left outside the mainstream of the legal community? We explore some of the traditional critiques of rights discourses and the persistence of formal equality as the preferred model. We then interrogate these issues by reference to two case studies: first, the recognition of lesbian and gay familial relationships and secondly, in the context of the law governing the regulation of abortion.

equality, formal equality, constitutional guarantees, bill of rights, gender, sexuality, disadvantage, outsiders

Abstract:
This discussion, part of a forum reviewing in the first 20 years of Australia's Sex Discrimination Act 2004 (Cth), considers what is understood by the notion of 'equality' when used in the context of the Sex Discrimination Act. While the term is often used when talking of legislation of such kinds, equality is a concept with a number of different meanings. In particular we examine the persistence of an understanding of equality as merely formal equality or at best subject to a 'differences approach'. We argue that this is a limited way to understand the concept of equality.

Sex Discrimination Act 2004 (Cth), gender, equality, formal equality, substantive equality

Abstract:
This article reflects on the ways in which developments in feminist legal theory, and in particular, the attention paid to theories of equality, have influenced developments in substantive law. The authors review the period between 1990 and 2002; the period of 12 years between the publication of the first and second editions of their co-authored book, The Hidden Gender of Law. They ask why (Australian) courts seem barely to have engaged with the sophisticated discourses of equality that have emerged not only from the academy, but also from some of the jurisprudence developed in other countries, notably Canada and South Africa. While the examples discussed are disparate, what unites them is the theme of equality.

equality, formal versus substantive equality, gender

Abstract:
This article considers a case that started life as a medical negligence case that later became obscured by legal arguments about abortion and 'wrongful birth'. A doctor failed a number of times to diagnose that a woman was pregnant, and by the time this was discovered, it was too late for the pregnancy to be terminated. When the woman sued for negligence, at first instance it was held that she could not recover because it was argued that if she had decided to terminate the pregnancy when advised of it, such a termination would have been unlawful. The NSW Court of Appeal reversed, and the matter was set to be heard by the High Court of Australia before it settled. The case raises a multitude of issues, including how the spectre of 'abortion' can affect and distort what would otherwise be a simple case of medical negligence; the respective roles of doctors and courts in collateral (non-criminal) proceedings in making assessments as to the availability and 'lawfulness' of abortion in any particular case; and the availability and quantum of damages for the cost of raising a healthy child who would not have been born but for the negligence of the defendant. The judgments under review are also significant for the insights they provide into the persistence of gendered assumptions in aspects of tort law and damages assessment.

abortion, tort law, damages assessment, feminist legal scholarship, wrongful birth/wrongful conception

Abstract:
This article discusses the ways in which the core law school curriculum is informed by assumptions about gender. It discusses a project, funded by Australia's federal department of education in the mid 1990s that involved creating teaching materials that raised and introduced gender issues into the core law curriculum. The authors prepared a set of teaching materials, made available via the internet, which focused on the themes of 'work' and 'violence'. The article also discusses legal categories and the roles that they play in obscuring legal problems that affect women's lives. However, there is a tension between trying to reconstruct those categories (eg, by focusing on themes such as 'work' and 'violence') and creating teaching materials that can readily be used in courses with names like 'contract', 'property' etc. In this article, the authors canvass their approach to this dilemma and illustrate this with some of the examples from their project.

legal education, law school curriculum, core curriculum, feminist legal scholarship, legal categories, gender, legal pedagogy

Abstract:
This article addresses two barriers to women's participation in the legal system which, it is argued, impact negatively on women's citizenship by limiting their access to justice. While the notion of citizenship has generally been seen as a gender-neutral phenomenon, feminist scholarship has revealed that many aspects of citizenship are in fact highly gendered. Using the historical notion of 'civil' death, the rule by which felons were prevented from bringing civil proceedings once convicted, the authors argue that contemporary barriers have the same effect.

The article commences with an exploration of the gendered nature of the Australian legal aid system, looking at the allocation of legal aid funding across types of law, and by gender. This demonstrates a clear priority given to defending - mostly men - charged with criminal offences, at the expense of funding the types of issues that are more likely to affect women, such as family law cases or other civil actions. The second part focuses on limitation of actions legislation and considers the example of claims for childhood sexual abuse which are often rendered effectively unavailable by the operation of the apparently prosaic (and gender neutral) doctrine of limitation periods.

feminist legal theory, legal aid, torts, limitation periods, citizenship, gendered harms