̽��ֱ�� of Cambridge - sexism

Refusal to abolish ‘archaic’ rule means gender discrimination is still law in the UK

fpjl2 — Tue, 19 May 2015 23:26:59 +0000

An antiquated legal rule based on a principle of gender discrimination in property and inheritance rights is still being invoked in UK courtrooms, despite parliament passing an act to abolish it five years ago, research from a Cambridge legal academic shows.

̽��ֱ��‘Presumption of Advancement’ (PoA) assumes that property transferred from men to their spouse or child – but not from women to their family – is intended to be a gift, and is a pre-Victorian “hangover” abolished in section 199 of the Equality Act 2010 passed by the then Labour government. However, this section was never ‘commenced’ or brought into force after the change in government to the Conservative-led coalition.

As the original driver for the legal change was compliance with the Seventh Protocol to the European Convention of Human Rights – the section of European law that deals not just with gender equality but also rights for immigrants and prisoners – the Coalition government may have failed to commence any legal change for fear of being seen to capitulate to Europe and risk angering Conservative Party Eurosceptics, says Alysia Blackham, who conducted the research.

“In response to a Freedom of Information request, the Ministry of Justice has indicated that no final decision has been made as to whether to commence s 199, meaning the government can continue to drag their feet on this issue” said Blackham, from Cambridge ̽��ֱ��’s Faculty of Law.

“This is one of those strange legal hangovers from a different age. It’s problematic given the law is generally supposed to give equal rights to women and men, irrespective of gender, and Government are not addressing it. As a symbol, PoA is highly sexist; and its continued existence makes gender discrimination part of the law of the land,” she said.

Blackham, whose research on PoA is published today in the journal Trusts and Trustees, also contacted the Government’s Equalities Office, who held no information regarding the issue.

PoA stems from a branch of law called ‘equity’, originally set up to soften any perceived “harshness” resulting from the common law. Equity was formerly under control of the Lord Chancellor, but has long been administered with the common law.

In cases without recorded evidence of what the parties intended, usually due to sudden death, the ‘Presumption of Advancement’ assumes ownership of a gift of property passes to a spouse or child – but only where the gift was made by a man, considered part of his “paternalistic duty” by archaic legal precedent, says Blackham.

For women, PoA generally doesn’t apply, and UK law resorts to the ‘Presumption of Resulting Trust’ – meaning that, while property is passed on at law, a spouse or child is not given full ownership in equity. Instead, they are deemed to be merely ‘holding’ property for the female owner, or their estate.

Blackham found the PoA rule had been raised in 21 cases since Parliament voted to abolish it in 2010, showing that – while most courts do not need to use it – the out-dated rule is still used to argue property rights and rights of inheritance. Most of these examples were ‘obiter dicta’, says Blackham, essentially just flagging its continued existence; but in two cases it was actually argued and rebutted, and in one case even applied.

Perhaps ironically, PoA is often invoked to argue for the benefit of the women involved in the given case, says Blackham. In the one case (O’Meara v Bank of Scotland PLC) that applied the rule, it enabled a woman to keep money that would otherwise have gone to pay off her husband’s bank loan.

Part of the problem, says Blackham, is that, while we might wish all to be equal in the eyes of the law, statistics show that women aren’t equal when it comes to finances – not least in respect of the lingering gender pay gap. So, given that society remains unequal, should the law be tolerated despite its out-dated paternalistic origins?

No, says Blackham. “We need to get rid of PoA. As a symbol it’s toxic, but we can’t just leave a hole in the law – otherwise the presumption of a ‘resulting trust’ kicks in and no one of either gender will get the security of passing on property. Australia has expanded PoA to include women, so the law now applies equally, which is probably the best option.”

However, Blackham cautions that legal equality is problematic in an unequal society. “Arguably, if the law is equal then it’s indirectly discriminatory because property and financial asset acquisitions on a societal level are not.”

Inset image: Alysia Blackham

In 2010, Parliament voted in favour of abolishing a rule that assumes men but not women intend to give property to family, as part of the then UK Government’s commitment to European equal rights laws. However, research shows the rule is still being invoked in courts as its abolishment has yet to be ‘commenced’ by successive, and more Eurosceptic, governments.

As a symbol it’s toxic, but we can’t just leave a hole in the law

Alysia Blackham

Michael Coghlan

Scales of Justice

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“Nudity does not liberate me and I do not need saving”

amb206 — Fri, 26 Jul 2013 07:00:00 +0000

Earlier this year the radical feminist group Femen turned its attentions away from Europe to North Africa, targeting vast swathes of the Arab and Muslim world with its uncompromising messages. Up until this point the protestors, who dub themselves as “sextremist”, had focused their activities on Europe and primarily on issues affecting white European women.

Emerging in the Ukraine around five years ago, Femen made its name with its own brand of attention-grabbing publicity. Images of its topless protests, nipples blurred, appeared in media throughout the world and, to some extent, conformed to passively-held assumptions of what “radical feminism” might look like. In other words, it knowingly plays up to feminist stereotypes in the quest for publicity.

Femen argues that the female body can re-assert itself, and the meaning attached to it, through anti-patriarchal messages scrawled on bare breasts. ̽��ֱ��group seeks to challenge norms by inverting the hyper-sexualised signal that exposed breasts typically send. Whether you believe in its value or not, this mode of protest plays out in the real world as a dangerous strategy. ̽��ֱ��political message is often lost, indeed undermined, by the same widespread salacious interest in the naked female body that garners Femen so much media coverage.

Given the flurry of sensationalised media surrounding Femen’s nude protests, it’s not surprising that many feminists have distanced themselves from the group, arguing that its tactics reinforces the notion that women can only get attention for (and by means of) their physicality, not on the strength of the inherent merit of the feminist cause.

̽��ֱ��catalyst for the shift in Femen’s focus was Amina Tyler, 19-year-old founder of the group’s Tunisian branch. In March this year Amina posted topless photos of herself on Femen’s Facebook page. One image, in the style that has become characteristic of Femen’s activism, depicts Amina with the slogan “My body belongs to me and is not the source of anyone’s honor” written in Arabic across her bare chest. Another shows her with “F**k your morals” in the same bold style.

These images triggered immediate reactions within Tunisia, with Amina reportedly receiving threats of death by stoning. Rumours circulated that she had been arrested by the local authorities; these turned out to be false. Femen’s rapid response was the organisation of “Topless Jihad Day” in support of Amina – and what began as feminist activism quickly slipped into what appeared to be anti-Muslim protest.

It became apparent that Femen is waging a campaign that shows little consideration for the vast majority of the community whose rights it claims to promote. ̽��ֱ��group that spoke up against Femen, Muslim Women Against Femen, sought to challenge the narrative that Muslim women are de facto oppressed by dressing a certain way or subscribing to a particular theology.

As many other commentators have noted, Femen have obvious representation issues outside Europe. White European women represent the vast majority of its supporters and, furthermore, they seem committed to advancing a particular brand of feminism as universal with little regard for local histories and efforts.

Many observers too baulked at the language of “Topless Jihad Day”. Jihad is not a word to be used lightly. One can only imagine how frustrating it must be for Muslims, who regularly insist that jihad is misunderstood by both terrorists and Western commentators, to have it thrown back at them in this effectively hollow sense. It seemed another instance of Femen prioritising attention-grabbing publicity over coherent message. But beyond this, seeking to “save” others implies superiority.

̽��ֱ��Femen protests are more than simply unnecessarily provocative and culturally insensitive: they also expose deeper truths. In response to Femen, Muslim Women Against Femen instituted “Muslimah Pride Day”. ̽��ֱ��group described Femen as perpetuating and promoting Islamaphobia and accused it of cultural imperialism. Many individual voice spoke about issues of freedom and choice. One post displayed the message: “My hijab is my pride. Islam is my freedom. This is my choice. I don’t need you to be my voice. I have mine.” Another one tackled feminism head-on: “Feminism comes in many forms! You bare up, I cover up.”

̽��ֱ��manager of Muslim Women Against Femen’s Facebook page regularly warns members against “slut shaming” Femen activists. Hundreds of responses illustrate complex, multi-faceted responses to Femen’s actions, not outright rejection. ̽��ֱ��message is clear: freedom has to involve choice, and respect for the choices of others. ̽��ֱ��posts engage with feminist debates, while exposing how such protests ultimately struggle to engage with multiple forms of oppression. Two of the many messages that illustrate this are: “Nudity does not liberate me and I do not need saving” and “Let me tell YOU how oppressive your culture is.”

̽��ֱ��issue with Femen’s representation is not just that white, European women are campaigning on ‘behalf of’ Muslim women. By its actions, Femen (perhaps unintentionally) deepened racial and religious divisions within the communities it sought to liberate. These tensions led to the alienation of many women who came to see themselves as having no place within the Western feminist movement, which they now associate with Femen’s radical protests.

Worse still, Femen, in the eyes of many Muslim and Arab women, has come to symbolise oppression. While attempting to liberate Muslim women, Femen has succeeded in oppressing them along religious and racial lines.

Femen misrepresents the complexity of both individuals and groups. A woman’s identity is shaped by an intricate web of influences – economic, cultural, sexual and religious, to name but a few. Many would argue that feminist movements do provide space for diversity among women. ̽��ֱ��problem, in Femen’s case, was that a woman could only be “in” – and by implication only be free – if she subscribed to a particular set of values that does not sit well with the lifestyles of many communities.

Across the political spectrum struggle, there is debate about what it means to be “free”. Whichever aspect is grasped, we commonly fail to see how we are simultaneously disadvantaging freedom in another respect. Femen is an archetypal example of this common occurrence. Its alienation of those it seeks to empower does not stem from uncharitability; indeed, often it comes from an overwhelming abundance of concern.

Femen activists mobilised in opposition of patriarchal control and the subjugation of women they perceived in North Africa. Many of these activists were horrified to find so many women speaking out against their campaign, and often insisted that there had been a misunderstanding.

Such a narrative ignores messy historical and political dynamics that make female empowerment different from place to place. People are products of different circumstances and choices. Can we honestly call the banning of the veil an advancement of freedom – or is it just the advancement of a particular view of what it means to be “free”? Similarly, does demonising women who choose (and also those who choose not) to wear a headscarf really liberate them? Or does it just place them in a category of “repressed”; a category that they have little power to escape without our consent.

Hardest for us to acknowledge is our own place in structures of injustice, and, at times, the place of a very particular concept of what it means to be free in those structures. While we seek to improve the lives of women by liberating them from dressing a particular way, we both willingly and unconsciously overlook that in other respects we play a role in their inequality.

A large part of this stems from our weakness at grasping multiple forms of oppression and inequality. Tunisian women are oppressed not just because they are female; this oppression intersects with poverty, religion, education, culture and other factors that may disadvantage them. It is naïve to target one aspect while refusing to see that you are simultaneously reinforcing another. Femen protests do just this; they seek to empower a group of women, and simultaneously worsen their oppression as Muslims.

When it comes to advocacy, protest and many kinds of charitable action, the start must be a long hard look in the mirror – honest self-reflection. This has to include understanding and admittance of the ways in which our position disadvantages those who we seek to help in other ways.

For the feminist movement, it is tempting to isolate sex as the crux of repression, which conveniently negates our role as wealthy (globally speaking), often white, often middle class, often Christo-agnostic, often well-educated individuals. We have to acknowledge the privilege and difference these factors endow to us, and that the women we are talking to, and often simply talking about, may also be affected by other factors, potentially to a greater degree.

We should start by working with people, with the awareness that they are as intricate, perhaps as contradictory, as we ourselves are, and that their situations are subject to personal and historical change as well. If you agree with a cause, support it – but rhetoric and ideology must flow from the repressed to the repressor. ̽��ֱ��other way around ultimately reinforces what we are seeking to overcome.

This is an edited version of an article by Raffaella Taylor-Seymour for the online magazine King’s Review. http://kingsreview.co.uk/magazine/

When radical feminists took their cause from Europe to North Africa, the outcome was a deepening of the divides they sought to break down. Social anthropology student Raffaella Taylor-Seymour argues for greater reflection about the meaning of freedom.

When it comes to advocacy, protest and many kinds of charitable action, the start must be a long hard look in the mirror.

Raffaella Taylor-Seymour

PLANETART (Flickr Creative Commons)

Inna Shevchenko of Femen

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