Equality Rights: What's Wrong?

RETHINKING EQUALITY PROJECTS IN LAW: FEMINIST CHALLENGES, Rosemary Hunter, ed., Hart Publishing, pp. 105-124, 2008

Sydney Law School Research Paper No. 09/17

21 Pages Posted: 1 Apr 2009  

Reg Graycar

The University of Sydney Law School

Jenny Jane Morgan

Melbourne Law School

Date Written: March, 31 2009

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.

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

JEL Classification: K10, K30

Suggested Citation

Graycar, Reg and Morgan, Jenny Jane, Equality Rights: What's Wrong? (March, 31 2009). RETHINKING EQUALITY PROJECTS IN LAW: FEMINIST CHALLENGES, Rosemary Hunter, ed., Hart Publishing, pp. 105-124, 2008; Sydney Law School Research Paper No. 09/17. Available at SSRN: https://ssrn.com/abstract=1371315

Reg Graycar (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Jenny Jane Morgan

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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