By Mr Peter Dunne, Lecturer in Law (University of Bristol Law School).
In the coming months, the United Kingdom (UK) and Irish governments will (separately) review the legal processes by which transgender (trans) persons can have their preferred gender (currently referred to as the ‘acquired gender’ in UK law) formally recognised. Drawing upon my scholarship from recent years, in this post, I consider current movements for reform in the UK and Ireland, with a particular focus on trans minors (who are largely excluded from the UK and Irish frameworks) and non-binary individuals. I conclude this discussion, in the last section, by reviewing the question of ‘self-determination’, and asking if/how the UK can move beyond its current diagnosis-orientated recognition model. (more…)
By Dr Yvette Russell, Lecturer in Law (University of Bristol Law School).*
By David Shankbone – CC BY 3.0
The last few weeks have seen the revelation that Harvey Weinstein, renowned Hollywood producer of such award-winning films as Gangs of New York, Pulp Fiction, and Shakespeare in Love, moonlighted as a prolific sexual predator. A significant number of women have now made public complaints of sexual harassment and assault against Weinstein, including well-known Hollywood stars Gwyneth Paltrow, Rose McGowan, and Angelina Jolie. Weinstein is also reportedly facing allegations of rape. His wife, Georgina Chapman, announced she was leaving him, the company he co-founded fired him, and police on both sides of the Atlantic have opened investigations into him.
The media discourse that greeted the revelations has been characterised by astonishment at the scale of the alleged offending, and the failure of those making allegations to have come forward sooner. In fact, there is often evidence of a long line of complaints against men who are finally revealed in mainstream media to be chronic sexual predators. In Weinstein’s case there is evidence of three decades of prior complaints by women, at least two of which were reported to police. The public disclosure of these allegations was repeatedly thwarted by the use of non-disclosure agreements, the alleged ‘killing’ of news stories on the topic, and the habitual capacity of those who knew about it to ignore it. In the case of Jimmy Savile in the UK, believed to have preyed unimpeded for 60 years on around 500 vulnerable victims as young as two years old, a 2013 HMIC report found at least seven complaints against Savile in police records since 1964. (more…)
Written and orated by Prof Joanne Conaghan, Professor of Law and Head of School (University of Bristol Law School).
In July 2017, the University of Bristol awarded an Honorary Fellowhip to its former Chancellor the Rt. Hon. the Baroness Hale of Richmond, DBE. Professor Joanne Conaghan, Head of the University of Bristol Law School, had the honour of writing the Oration for Lady Hale.
In her Oration, Professor Conaghan stresses the many strengths and achievements of Lady Hale in a career dedicated to the law as it applies to those most vulnerable, such as in the areas of mental health and family law, and to combat inequality, in particular on the basis of gender. Lady Hale’s achievements are indeed particularly remarkable due to the unequal society she lived in through her early years; a society which she is shaping and pushing for transformation, very soon from the seat of the President of the Supreme Court, to which she has been appointed.
The full text of the oration is now reproduced here as a token of the values that the University of Bristol Law School, as a community, strives to foster.(more…)
A comment on R (on the application of A and B) v Secretary of State for Health [2017] UKSC 41.
By Dr Sheelagh McGuinness, Senior Lecturer in Law (University of Bristol Law School) and Prof Keith Syrett, Professor of Law (University of Cardiff, School of Law and Politics).
The start of June 2017 saw abortion law in Northern Ireland (NI) making the news for several reasons. On June 9th, Theresa May announced that she intended to try and form a government with the Democratic Unionist Party (DUP). Members of this radically conservative party from NI have long been vocal in their opposition to abortion. Some feared that restrictions on abortion legislation might form part of negotiations between the two parties. On June 13th, the Department of Health published ‘The Report on abortion statistics in England and Wales for 2016’ which contained details on the number of women who travelled from NI to England to access abortion care. Then, on June 14th, the Supreme Court handed down an important decision on NHS funding for women who travel from NI to England to access abortions. These women, save in exceptional cases, must pay for abortion care privately, notwithstanding their status as UK citizens and (in many cases) UK taxpayers. In this blog we examine the Supreme Court decision and the context within which women travel from NI to have abortions in England.
The case
In 2012 A, a 15-year-old girl, became pregnant. She did not want to continue with the pregnancy and with the support of her mother, B, arranged to have a termination in England. A and B were surprised to find out that as A was resident in NI she would have to pay for the termination in England. Believing this to be unfair B, on A’s behalf, started proceedings to challenge the lawfulness of this policy. Their challenge contained two key claims. First, that the Secretary of State for Health was acting unlawfully in refusing to permit women from NI to access NHS funded abortions [the public law claim]. Second, that women in NI were being discriminated against as compared to other women in the UK [the human rights claim].
A and B were unsuccessful in the High Court and in the Court of Appeal. Their appeal to the Supreme Court was dismissed by a majority of 3:2. (more…)
On 14 April 2017, it will be three years since we heard the news that 230 schoolgirls had been kidnapped by Boko Haram, causing global shock and horror. Since then, some have been released, and some escaped. However, focus on the Chibok schoolgirls, often overshadows the greater tragedy.
Amnesty International suggests that over 2,000 girls and women have been abducted by Boko Haram across the North of Nigeria. Though, Borno state, (with a landmass slightly larger than Croatia) and its people have borne the brunt of Boko Haram. Boko Haram is the sobriquet for a group whose activities are predicted on a violent abhorrence for ‘Western’ education. The Arabic names they call themselves translate into ‘Group of the People of Sunnah for Preaching and Jihad’ and ‘Islamic State West Africa Province.’ Their vicious campaigns have kept an estimated 120,000 students from education of any kind. Andrew Walker’s book ‘Eat the Heart of the Infidel’ examines how Boko Haram trades on the currency of religion and the politicisation of education to sell violence to its adherents.
Obviously, if any case is to be made against them as regards the abductees, a cause of action would properly lie within national criminal laws or for crimes against humanity. However, due to the ESC nature of the right to education, the 120,000 students who have been excluded from school seem to have very little recourse to contest the violation of their right to education. This is because ESC rights are largely seen as non-justiciable. Also, the demarcation of rights into ESC and civil/political rights does not reflect the historicity and needs of the populace. An interesting approach to this incongruous distinction is taken by the Inter-American Court of Human Rights (IACrtHR). What lessons, I ask, can we learn from the court? (more…)
By Dr Yvette Russell, Lecturer in Law (University of Bristol Law School).
Orestes Pursued by the Furies (1922-25) by John Singer Sargent
In recently published work I engage in a philosophical and psychoanalytic excavation of legal discourse on (and in) the rape trial.[1] In this post I briefly summarise my key claims arguing, while I do, that legal scholars must diversify the theoretical tools they draw on in confronting issues of social justice.
Much feminist scholarship on rape asserts that the law has reached a best practice plateau and justice for victims is now being held back primarily by the aberrant ‘attitudes’ of criminal justice actors charged with implementing the law. Those attitudes, it is argued, militate against the best intentions of law makers charged with stemming burgeoning attrition rates. Attrition refers to the phenomena – not anomalous in the criminal justice system, but particularly marked in cases of sex crime – whereby alleged instances of sexual violence drop out of the criminal justice system. This occurs at multiple points, the most notable of which is the first point where a victim makes the decision to report to police. (more…)
The case of the Black Cab rapist, John Worboys, may well qualify as one of the most egregious failures of modern policing of our times. Alleged to have assaulted over 100 women using his taxi as a lure and a crime site, Worboys terrorised women in the London Metropolitan area for the best part of a decade before eventually being apprehended and imprisoned in 2009 for 19 separate sexual assaults. This week the Worboys case is once again in the public eye as a claim by two of his victims, DSD and NBV, that the Metropolitan Police violated their human rights by failing adequately to investigate their claims comes before the Supreme Court.
One has to wonder how such serious criminal activity in a public setting could go unchecked for so long. The simple answer is that the Metropolitan Police failed Worboys’ victims utterly and unequivocally, their investigation marred by multiple systemic and operational failings, as elaborated in painstaking detail by Mr Justice Green in a High Court judgment in 2014. (more…)
By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).
In January 2017, my first monograph entitled EU Non-Discrimination Law in the Courts will be published with Hart Publishing/Bloomsbury. The monograph compares the Dutch and German application of EU non-discrimination law focusing on discrimination on grounds of sex and sexual orientation. It includes an analysis of the case law on direct as well as indirect discrimination and covers the cases which are linked to Article 157 TFEU, the Framework and Recast Directives (excluding equal pay for equal value and social security law).
Since the year 2000, the material and personal scope of EU non-discrimination law has been significantly broadened and has challenged national courts to introduce a comprehensive equality framework into their national law to correspond with the European standard.
The book provides a multi-layered culturally informed comparison of juridical approaches to EU (in)direct sex and sexualities discrimination and its implementation and application in Germany and the Netherlands. It examines how and why national courts apply national non-discrimination law with a European origin differently, although the legislation derives from the same set of EU law and the national courts have to respect the interpretive competence of the Court of Justice of the European Union. As such, it provides an in-depth analysis of the national legal and non-legal context which influences and shapes the implementation and application of non-discrimination law and reveals how some of these factors affect the interpretation and application of national non-discrimination law with a European origin. (more…)
By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).
In its Kratzer judgment of 28 of July 2016,[i] the Court of Justice of the European Union (CJEU) responded to the German Federal Labour Court’s preliminary reference concerned with the question what qualities are required to be an applicant who seeks access to employment, to self-employment or to occupation within the meaning of Article 3(1)(a) of the Framework Directive 2000/78/EC and Article 14(1)(a) Recast Directive 2006/54/EC. In it, the CJEU essentially rules that unserious applicants who do not actually seek employment but only apply for the purpose of claiming compensation do not fall under the scope of the directives and their respective articles. The case does not mention Article 3(1)(a) Race Directive 2000/43/EC but there is no reason to believe the conclusion would be any different regarding its application to employment and occupation.
The brief judgment, which was decided without prior opinion of the Advocate General, is unlikely to stir-up the European-wide debate on equality and non-discrimination law and may seem all too obvious to many commentators. However, for the German legal context, the judgment is very significant because it approves the national courts’ case law on the so called Equality Law-Hoppers (AGG-Hoppers) and leaves significant discretion to the national courts to counteract apparent as well as alleged abuses of the General Equal Treatment Act (Allgemeine Gleichbehandlungsgesetz, hereafter AGG)[ii] implementing the EU equality directives. (more…)
By Dr Yvette Russell, Lecturer in Law (University of Bristol Law School).*
Eugène Delacroix’s Liberty Leading the People
On July 13, 2016 Nottinghamshire police became the first force in the UK to recognise misogyny as a hate crime. Hate crime is defined as ‘any criminal offence which is perceived, by the victim or any other person, to be motivated by hostility or prejudice based on a personal characteristic’. In practical terms, this means that in Nottinghamshire police can record reported incidents such as wolf whistling, verbal abuse, taking photographs without consent, and using mobile phones to send unwanted messages with an additional ‘flag’ or qualifier on their incident log as hate crime. It appears that the move is largely symbolic, as gender animus is not a relevant aggravating factor for the purposes of sentencing under relevant UK ‘hate crime’ legislation,[1] and does not create any new criminal offences. However, the initiative has been supported by the force working in partnership with the Nottingham Women’s Centre and has involved the specialised training of officers to better identify and respond to the public harassment of women by men.
The announcement last week of the initiative was met with the predictable level of teeth gnashing and cries of ‘political correctness gone mad’ characteristic of any policy announcement addressed to countering gender inequality. While the move may be largely bureaucratic, it does present an opportunity to look again at the spectre of criminalisation in our time and consider a related question: What is the role of the criminal law in regulating gender (in)equality, and what should it be? (more…)
In the coming months, the United Kingdom (UK) and Irish governments will (separately) review the legal processes by which transgender (trans) persons can have their preferred gender (currently referred to as the ‘acquired gender’ in UK law) formally recognised. Drawing upon my scholarship from recent years, in this post, I consider current movements for reform in the UK and Ireland, with a particular focus on trans minors (who are largely excluded from the UK and Irish frameworks) and non-binary individuals. I conclude this discussion, in the last section, by reviewing the question of ‘self-determination’, and asking if/how the UK can move beyond its current diagnosis-orientated recognition model. (more…)
