Care and Autonomy in the Age of Austerity: Law & Society in Hawai'i

Amazing set of LSA panels organized by Susan Boyd (UBC), Emily Grabham (Kent), Nicola Barker (Reading/Kent), Jenni Millbank (UTS) and Julie Shapiro (Seattle). Didn’t think I could be any more sad about missing LSA (I had my reasons but suspect they may have been a bit stupid).  Have asked friends for pictures and dispatches from the conference, so ideally there will be more on this in the next week or so.

Care and Autonomy in the Age of Austerity (abstracts pasted in  below or click for PDF). Warning, well over 20 interesting abstracts follow.


Tuesday 5th June
10:15-12:00: Re-Conceptualising Motherhood
Chair: Emma Cunliffe
Susan Boyd: Regulating Maternal Autonomy in an Age of Austerity
Through different historical periods, motherhood has been regulated through legal
norms, among others. This legal regulation has had differential effects on mothers,
depending on whether they are poor, working class or middle class, racialized or
non-racialized, lesbian or straight, disabled or able-bodied, and so on. This paper
gives some examples of how the legal system has constructed women as ‘good’ or
‘bad’ mothers through history, based on economic status, and then examines the
legal construction of motherhood in the contemporary period. Its focus is on the role
that financial undertakings or obligations to children play in legal decision-making
about legal parenthood. Despite the enhanced choices that women now have in
relation to motherhood, maternal autonomy can be compromised by modern legal
norms. For instance, a responsible mother is often expected to nurture a child’s
relationship with the father, unless he is proven to be harmful to the child. The
extent to which that father is able to provide financial support can influence judicial
decision-making as well as legislative policy choices. Women’s capacity to make
autonomous choices about the form that their parenting and their familial structure
will take can be compromised in the face of this focus on alleviating the state’s fiscal
role in an era of austerity and privatization of responsibilities. The paper will argue
that it is more crucial than ever in neo-liberal times favouring a shrunken state, to
emphasize that care is a public good and that material support for mothers is
necessary. A focus on ‘transgressive mothering’ will be used to suggest directions
for policy-making in the future, with a focus on single mothers who attempt to parent
without a partner. An emerging difference in the legal treatment between single
mothers who use assisted reproduction versus those who conceive without assisted
reproduction will be explored.
Melissa Breger: The (In)Visibility of Motherhood in Family Court Proceedings
Academic literature about bias in the Family Court system has explored issues of race and
the overrepresentation of people of poverty. Less attention has focused upon the parallel
overrepresentation of women, particularly mothers in our Family Courts. I question
whether the Family Court would function as it currently does without mothers as its core
litigants. Specifically, I delve into the implicit gender biases inherent in societal
expectations of mothers as ever-nurturing and ever-protective of their children — an
expectation which often ignores the complexities and nuances of motherhood —
particularly mothers without resources or a support system. To illustrate my thesis, I utilize
a narrative from a case in which I was involved over a decade ago that was subsequently
featured in Professor Dorothy Roberts’ book: Shattered Bonds: The Color of the Child
Welfare System. This narrative is about a young mother charged with manslaughter of her
baby — who died due to poverty. Through this example and others, this Article raises
provocative questions regarding the influence of gender and the construct of motherhood
in Family Court proceedings. Has the gender of our Family Court litigants become virtually
invisible because of its predominance? How might we identify, confront and address this
invisibility in our family justice system?
Gillian Calder: To the Inclusion of All Others: Story-telling “Motherhood” with
Katniss, Hermione, Candy Quackenbush, Tanya and the Warrior Cats
In November 2011 the B.C. Supreme Court released its judgment in a reference on the
constitutionality of Canada’s polygamy prohibition. On the way to its holding that
polygamy is inherently harmful, and thus the proper subject of the criminal law, Chief
Justice Bauman said the following (para 884):
… the prevailing view through the millennia in the West has been that exclusive and
enduring monogamous marriage is the best way to ensure paternal certainty and
joint parental investment in children. It best ensures that men and women are
treated with equal dignity and respect, and that husbands and wives (or same sex
couples), and parents and children, provide each other with mutual support,
protection and edification through their lifetimes.
The same day that I struggled with these words during the day, I am moved to tears by
rereading Katniss’ words from The Hunger Game at night (page 24-25),
” When something unexpected happens. At least, I don’t expect it because I don’t
think of District 12 as a place that cares about me. But a shift has occurred since I
stepped up to take Prim’s place, and now it seems I have become someone
precious. At first one, then another, then almost every member of the crowd
touches the three middle fingers of their left hand to their lips and holds it out to me.
It is an old and rarely used gesture of our district, occasionally seen at funerals. It
means thanks, it means admiration, it means good-bye to someone you love.
The first set of words on the family are those of an authoritative and distant voice,
transmitted through the public medium of judgment, media and law and imposing a set of
views with tangible consequences. The second set of words are fictional, transmitted
through the private medium of a parent, working to inscribe and reinscribe an
understanding of family in a lived, embodied way.”
This paper aims to do the first, law, through the medium of the second, the intimate
exchange of parent and child, reading aloud. It aims to be a personal and experiential
story of “motherhood” that works to counter the notion that there is one model of family
that is best situated to enable the healthy development of a child. Told through the voices
of a series of current characters from children’s literature, difficult themes of abandonment,
colonialism, single-parenting, heterosexism, whiteness and mental health will be touched
upon and laid bare. As a presenter I will work to complicate the relationship between
feminism, Indigeneity, extended family and the best interests of the child, by recreating the
intimacy of the bedtime story.
Fiona Kelly: Autonomous from the start: Exploring the narratives of single mothers
by choice
Over the past two decades, single mothers by choice (SMCs) have emerged as a
significant and growing phenomenon throughout the developed West. A single
mother by choice is a woman who chooses to have or adopt a child, knowing she
will be her child’s sole parent. In situations where the woman is the biological
mother of the child, she typically conceives via donor insemination using the sperm
of a known or anonymous donor. While the emergence of SMCs suggests that
societal acceptance of autonomous motherhood may be on the rise, at least in
circumstances where the woman is older, educated and financially stable, legal and
social barriers remain. In the few Canadian judicial decisions in which SMCs have
sought to assert their autonomy through the courts, they have met with significant
resistance. Reflecting the current trends in family law towards shared parenting and
fathers’ rights, courts have strongly opposed attempts by mothers to exclude
“fathers”, whether biological or social, from the lives of children. SMCs also face
social censure. For example, a recent Pew Research Centre poll of 3000 individuals
in the United States found that 70% believed that ‘mothers having children without
male partners to help raise them is bad for society’, making SMC families the least
supported family form – with less support than lesbian and gay families – included
within the survey.
This paper is based on preliminary analysis of data from an interview study with
SMCs living in British Columbia, Canada. While there is some social science
literature on the SMC phenomenon, and an even smaller amount addressing the
legal context in which SMCs negotiate their familial relationships, there is nothing
that addresses the relationship between the legal and social. In this paper, I draw
on semi-structured qualitative interviews with SMCs to explore: (1) their decision to
raise a child outside a marriage/cohabitation relationship; (2) the legal
arrangements, if any, they made to secure their status as their child’s sole parent
both prior to conception and since the birth of their child; (3) their legal and social
experiences of sole motherhood; and (4) their perceptions of the pros and cons of
autonomous motherhood.
Wander A. Wiegers and Dorothy Chunn: Choosing Lone Motherhood: Historical
In liberal states, unmarried mothers are an enduring phenomenon that recurrently
generates intense public debate. Historically, the children of unmarried parents
were legally defined as ‘illegitimate’ and unmarried mothers were often treated as
social pariahs. Understandably, then, much research and writing on unwed
motherhood has centred on women who did not want, or were not in a position, to
become single mothers and on the options they pursued to avoid lone motherhood,
including abortion, infanticide, adoption and intra-familial strategies for ‘legitimizing’
children born out of wedlock. Since the late 1970s, however, as illegitimacy laws
were abolished in most Canadian provinces and new reproductive technologies
proliferated, the phenomenon of women giving birth to or adopting and rearing
children outside marriage or cohabitation has flourished as both lesbian and
heterosexual women opt to become single mothers in increasing numbers. What
has not been researched very extensively to date is the extent to which some
women chose lone motherhood prior to these late 20th century developments and
the similarities and differences between and among women who made this choice
across time.
This paper is based on preliminary analysis of data from an interview study aimed
at addressing this gap in the research and literature on the topic of lone
motherhood. We draw on semi-structured interviews with Canadian women in six
provinces who engaged in this kind of mothering for at least a year after the birth of
their child(ren) from the 1960s to the present. Specifically, we present their
perceptions and experiences related to: (1) the circumstances of their pregnancy
(or adoption) and the decision to raise a child outside a marriage/cohabitation
relationship; (2) their life during the pre-natal (or pre-adoption) period; (3) their postnatal
experiences as a single mother living outside a marriage/cohabiting
relationship; (4) their retrospective view of the decision to raise a child outside a
marriage/cohabiting relationship.
12:30-2:15: Social Reproduction, Welfare and Tax:
Critical Perspectives
Chair: Jenni Millbank
Beth Goldblatt: Tackling women’s poverty across contexts: A role for the right to
social security
Women throughout the world, in developed and developing countries alike, face
discrimination that results in their greater poverty, un- or under employment, poorer
working conditions and greater responsibilities for the care of others. The absence
of adequate or appropriate social security adds to the burden faced by women.
Where social security does exist, it sometimes discriminates directly but more
usually indirectly against women. For example, social assistance might be provided
to household heads who are usually men because of patriarchal assumptions in
families and the wider society. Access to social security is in some cases more
difficult for women who face the danger of violence when collecting payments or
within households where men in the households attempt to control women’s
income. Women’s caring responsibilities for children, the elderly and sick are often
unremunerated or unacknowledged in social security provision. The link between
social security and past employment also disadvantages many women who
generally work in formal employment for shorter periods of time and at lower pay.
Globalisation has led to a situation where the majority of women are located in
precarious informal work, including in migrant labour, which is inadequately
The paper explores the role of rights in challenging discriminatory provision of social
security or gendered gaps in welfare systems. It argues that the international
human rights framework on the right to social security requires development if it is
to address the needs and circumstances of women and play a role in the
transformation of unequal gender relations.
Drawing on literature about South Africa, Canada and India, the paper argues that a
more developed gender framework for the right to social security would offer
assistance for people working to address women’s poverty through welfare reform
in a range of different contexts.
Emily Grabham: Beyond the Concept of ‘Balance’ in Feminist Labour Law
Much current UK labour law and feminist labour scholarship focuses on the idea of
‘work/life balance’. In this paper, I attempt to put the notion of work/life balance
under renewed critical scrutiny, investigating what types of legal and political action
this concept produces, and what forms of political futures it organises out. My key
concern is whether trying to ‘balance’ work and ‘life’ through time-based labour
demands, such as flexible work for example, is appropriate for the dilemmas being
posed by the conditions of work in the UK’s ‘new’ economy. Given the continued
decline of the ‘standard employment relationship’ model, both within UK labour
regulation and within the broader economy as a whole, it is, I argue, politically
necessary to work with the constraints and possibilities of the new economy as it is,
instead of continuing to insist that the standard employment relationship will ride up
on a feminist horse and save us at some unknown point in the future. As such, we
should put precarious forms of ‘immaterial labour’ at the centre of our demands. We
need to imagine and pursue new political strategies that value women’s ‘immaterial’
labour in the mutating economy for its own sake instead of pursuing policies that
ignore precarious work, on the one hand (like many time-related work/life balance
policies effectively do) or which, on the other hand, attempt to standardize such
work on the basis of traditional concepts of full-time, permanent employment.
Whilst feminist labour lawyers have much to gain from time-related labour
demands, we have to push our thinking into as-yet unimagined horizons in order to
make a space for ourselves in the shifting terrain of the new economy. This might
not mean the end of ‘work-life balance’ as a site for social organising, but it also
requires a critical approach to clock time, as well as radical new visions of the
employment relationship that can adapt to, and challenge, the realities of lowwaged
and precarious work. The aim of this paper is to begin investigating new
possibilities for feminist labour lawyers, based on the current strategies and
practices of precarious women workers in the UK, especially those who find it
difficult, impossible, or irrelevant to access union support.
Janet Mosher: Women’s Caring Labour, Human Capital Development and Welfare
Welfare reforms in Ontario in the 1990s, like reforms in many jurisdictions,
fundamentally repositioned single mothers as ‘workers’, a shift frequently described
as evidencing the erosion of the male breadwinner model that had been at the heart
of social policy since WWII, and the ascendency of the ‘worker citizen’. One
consequence of this shift has been the increasing invisibility of gender and
gendered forms of labour (social reproduction in particular) within social policy
discourse. This disappearance of gender was quite plainly evident in the processes
leading up to the creation of Ontario’s poverty reduction plan (2008) and most
recently, in the foundation laid for Ontario’s current review of social assistance
(welfare) programs.
In this paper we examine, through a gendered-equity lens, the ‘human capacity
development’ approach that informs the social assistance review underway in
Ontario. This approach is one characterized within the Review as “an opportunity
planning program to support achieving full labour market potential through skills
building, education, training, employment and related support.” While a human
capacity development model seems a positive step when compared to the existing
‘work first’ model, it raises a number of important questions for women, particularly
for single mothers: is there a risk that ‘opportunity planning’ will be traded off
against income support?; or that social inclusion and full citizenship will become
even more firmly tied to labour market participation leaving those who are unable to
participate (many of whom will be single mothers whose unemployment is due to
the unavailability of childcare) more stigmatized and more deeply impoverished?; or
that women’s caring labour will be further devalued?
To inform our answers to these questions we review data covering a 25 year period
of employment rates, labour market participation rates, and the incomes of single
mothers. We also examine a number of qualitative studies that reveal the
extraordinary challenges – particularly for women on a low-income – of managing
labour market participation and the care of a family.
Claire Young: Privatization, Taxation and Women’s Economic Inequality
The Canadian tax system is increasingly being used to place the responsibility for
women’s economic security on the private sector, rather than the state. This end is
accomplished by giving a variety of tax breaks to taxpayers who support their
economically dependent spouses rather than recognizing women’s economic
inequality as a gendered issue that requires remedies that are delivered directly to
women in their own right. Tax subsidies focusing on the “spousal relationship” are
deeply flawed in terms of accomplishing their stated objectives. In this paper I shall
discuss tax measures such as subsidies for retirement savings, income splitting
rules, tax credits related to dependence and tax rules intended to encourage men to
transfer capital and wealth to women. My conclusion is that these rules do very little
to redress women’s economic inequality.
4:30-6:15: Austerity and Financial Crisis: Protest and Sexuality
Chair: Nicola Barker
Suhraiya Jivraj: Religion and sexuality – towards a decolonial approach
This paper follows on from my recent work examining the regulatory effects of
homonationalism in governmental gay rights’ social policy on the work of queer
Muslim grassroots organizations in the UK and the Netherlands. I argued that the
(neo-)liberal ‘sexual freedom’ model underpinning these policies not only re-inforces
racialisation of certain migrant sexualities, it also produces a simultaneous deracialisation
or racial upliftment of the queer migrant that adheres to the
homonormative model. In this paper I build upon my critique of this (de-) racialising
trend and how it circulates within certain sexualities discourse, especially those
espousing citizenship, dialogue and other liberal paradigms as solutions to the
supposed problematic of religion for ‘homo-emancipation’ or gay rights. Drawing on
the work of Gloria Wekker in relation to queer migrants’ subjectivities and Saba
Mahmood in relation to the process of religious subjectivisation I explore the
possibilities for developing decolonial knowlegdes of migrant sexualities that
attends to the modern concept of religion and its intersections with sexuality more
Ruthann Robson: Dressing Down: Symbolic Speech against Sexual Violence and Class Inequality
Recent protests and performances of symbolic speech in the Occupy, Slutwalk, and
other movements seek to confront sexual violence and the criminalization of
poverty. Government and cultural responses to these protests has varied widely.
This paper focuses on both the legal claims and the theories of these movements
as well as the government and social reactions. More specifically, the paper uses
the lenses of attire, including make-up, disguises, global goods, and “gear,” to
consider expressive content and government efforts to control that expression.
The first part of the presentation discusses the burgeoning litigation in the US and
Canada that not only seeks the “right” to protest but also seeks damages for
infringements of that right, including claims of police brutality. The latter part of the
presentation connects these movements and government reactions to previous
protests, both in the recent past and in previous centuries, again through the lenses
of different types of attire.
Nan Seuffert: ‘Occupy’, National Identity and Law Reform: Derivatives,
Demonstrations and Revolution?
This work in progress analyses stories of national and global identity in the
‘Occupy’ movements responding to the Global Financial Crisis. It begins with a
brief investigation of the ‘derivatives revolution’. It then briefly outlines the
contributions of the derivatives revolution to the global financial crisis. Third, it
places the causes of the European debt crisis within the context of the global
financial crisis and the derivatives revolution. Finally, the bulk of the paper reads
the texts of the ‘Occupy’ movement as stories about the global financial crisis and
about political communities, both national and international.
Yvonne Zylan: The Salacious State: Postmodern Patriarchy and the Enforcement
of the Marriage Contract
In 1996, the United States Congress passed (and the President signed into law) two
highly publicized pieces of legislation: the Personal Responsibility and Work
Opportunity Reconciliation Act—colloquially known as the Welfare Reform Act—and
the Defense of Marriage Act (“DOMA”). Scholars of social policy have only rarely
considered these two instances of lawmaking at the same time, perhaps because
they have been deemed to operate within two different domains of law (economic/
anti-poverty policy and LGB civil rights policy). Yet the first legislative finding
proffered by the PRWOA was that “[m]arriage is the foundation of a successful
society,” and Congressional testimony on DOMA was rife with discussion of the
economic implications of extending marriage rights to same-sex couples. This
paper considers these two legislative enactments as instantiations of the state’s
social construction of binary sex, gender, and sexuality, and advances two
arguments. First, I argue that these enactments, taken together, suggest the
emergence of a phenomenon I describe as a late capitalist, post-modern collapse
and rearticulation of the regulatory and distributive functions of the state. In late
capitalist United States, characterized by increased dispersion of social identities, I
contend that we are witnessing the emergence of a kind of reinvention of the logic
of social policy, as distributive policies become ever more regulative, while
regulatory policies are becoming ever more reactive to the distributive implications
of regulation. Second, I argue that the substance of these two pieces of legislation
is more coherent than it might appear at first glance. Starting from (and building
upon) the framework developed by Carole Pateman’s landmark work, The Sexual
Contract, I contend that work of the 104th Congress evinces a generalized panic
over the unruly quality of male sexuality. Seen in this light, the PRWORA and
DOMA represent Congress’ effort to enforce the containment of male sexuality
within heterosexual marriage.
Wednesday 6th June
8:15-10:00: Sexual Violence, Race, Borders and ‘Post-
Chair: Mehera San Roque
Sharon Cowan: ‘“Subject to Merit”: Representing and evidencing women’s rape
claims in the asylum context’
It is not known how many women claim rape in the asylum context, though
estimates vary widely from 1% to ‘almost all women’s cases’ depending on who is
responding to the question, and the woman’s country of origin, amongst other
factors. Building on the data from a 2 year national study of UK asylum applications
involving a claim of rape, this paper will look at recent legal and policy decisions
such as cuts in legal aid, shortened asylum processing timescales and the fast track
detention of applicants, that constrain and in some cases foreclose a fair and just
determination of refugee status. Structural factors such as substandard or nonexistent
legal representation, lack of money or time to access expert medical
reports, and lack of welfare support, combined with other factors such as minimal
language skills, or social support networks, means that women asylum claimants
who allege rape face often insurmountable hurdles with respect to disclosing rape
claims to decision makers, or, where they have disclosed, being deemed credible. It
is questionable, in this context, to what extent the merits of a claim can ever be
fairly assessed.
Lise Gotell: Reading R. v. J.A. as a Post-feminist Text: “Can-do Girls,” Individual
Autonomy and the Disavowal of Feminist Anti-rape Discourse
According to critics like Angela McRobbie, post-feminist culture, with its celebration
of the “can do girl,” promotes a movement beyond feminism to a more comfortable
zone where women are free to choose for themselves. Shaped by neoliberalism,
post-feminism’s “feminism” is organized around notions of choice, empowerment,
and personal gain that are deeply individualizing. Post-feminism, then, is founded
upon a double movement that disavows feminism as a collective political movement
in the same instant that it appears in of support its demands.
In this paper, I will read the Supreme Court of Canada’s decision in R. v. J.A. (2011)
as a post-feminist text. In this split decision, the Court ruled that there is no defense
of prior consent to sex that expected to take place when someone is unconscious.
J.A. involved a complainant who complained to police that she had subjected to
anal penetration with an object after she had been choked unconscious. At trial, KD
recanted her allegations against her spouse and insisted on her prior consent to
unconscious sex. While the majority and dissenting opinions diverged on the issue
of advance consent, what is striking about this decision is the emphasis placed on
sexual autonomy and individual choice, disarticulated from feminist claims
regarding sexual violence and gender inequality. The figure of the “can do girl”
most clearly informs the dissenting opinion, which promotes an individualized and
decontextualized concept of sexual autonomy, refusing to acknowledge the
contradictions inherent in choosing to be objectified. The excision of feminist claims
from the majority opinion that nevertheless insists upon the necessity of ongoing
conscious consent reflects the post-feminist double-movement of disavowal and
incorporation that McRobbie emphasizes.
While post-feminism has arguably become the new common sense of gender
relations, few feminist legal scholars have grappled with what it might mean to think
about post-feminist discourses in relation to law. Post-feminist positions have
certainly been advanced in the field of feminist legal studies (most notably by Janet
Halley in her Taking a Break from Feminism), but analyses of post-feminism have
been largely confined to the field of feminist cultural studies. Thornton’s analysis of
post-feminism in the law school is one exception to this relative neglect by feminist
legal scholars. This paper uses the work of cultural studies scholars to critically
examine, via R. v. J.A., the role that law plays in reinforcing post-feminist culture.
Nora Honkala: Gendered Judgments in Asylum Seeker Women’s English
Immigration and Asylum Cases
Asylum seekers continue to claim their rights within a complex international political
climate which has seen the tightening of immigration and asylum policies in several
states, including the UK. The rights of refugees stem from international law and are
afforded protection by the Convention Relating to the Status of Refugees 1951 and
its 1967 Protocol. Scholars have argued that women have been rendered invisible
within the theory of the international refugee regime and in practice have been
denied their right to protection. The development of more ‘just’ decision-making
processes in the asylum system is thus an integral part of the UK’s obligations
under international law.”
In light of this, the UK Home Office adopted its Gender Guidelines in 2004. This
results from international efforts, for instance by the UN Refugee Agency (UNHCR),
to offer guidance to States to better understand gender-related claims of asylum
seeker women through various gender guidance notes and guidelines, thus
improving their decision-making processes. Arguably, this has not, at least yet, been
translated into significant changes in the decision-making of women’s asylum cases
in the UK.
This paper aims to show the problem of the pervasiveness of gendered judgments
in the Immigration and Asylum Appeals cases in the UK. Three cases will be
analysed: two from the appellate court, which is now called the Upper Tribunal
(Immigration and Asylum Camber); NA (Kyrgyz Woman) Tajikistan CG [2004]
UKIAT 0013 and HC & RC (Trafficked women) China CG [2009] UKAIT, and one
from the Court of Appeal, AN (Pakistan) v Secretary of State for the Home
Department [2010] EWCA Civ 757.
Through the examination of these three cases, which are linked through the
discussions of forced marriage or the risk thereof, this paper aims to show that
gendered assumptions by the judiciary are a common recurrence in asylum seeker
women’s cases in the UK. Furthermore, this illustrates a significant problem in
guaranteeing the rights of asylum seeker women. This paper concludes with a
reflection on the state of the UK’s compliance with its international obligations.
Dana Raigrodski: Gender, Labor and Globalization: Finding Solutions in
the Global Economy for Trafficking in Persons
The last decade brought much needed attention to the global plight of modern
slavery, as numerous members of vulnerable populations are trafficked all over the
world to be enslaved in bonded labor in a broad range of industries including, but
far from limited too, commercial sex. Yet, the global community’s efforts to
successfully mitigate trafficking and protect those who are most likely to fall victim to
it have fallen short.
This paper argues that the lack of success in fighting human trafficking is to a large
extent the result of framing the existing discourse of human trafficking as primarily a
matter of criminal law and human rights of women and children, rather than
addressing the economic and global market conditions within which human
trafficking thrives.
I will further suggest that the almost exclusive focus on criminal and human rights
discourse developed in response to the paradigmatic story of human trafficking—
the young woman or child being duped and kidnapped for exploitation in the illegal
commercial sex industry. However, that focus continues to marginalize both the
impact on- and the role of women, children and migrant workers from developing
nations in the global economy. Without acknowledging the gendered and class
underpinnings of human trafficking discourse, we will not be able to mitigate human
trafficking or to achieve economic and social equality around the world. Without
such economic and social equality, women, children and many others in developing
nations will continue to lack meaningful realization of their human rights.
While recent efforts link human trafficking to economic pull and push factors
exacerbated by globalization and trade liberalization, very little has been done to
frame the discussion in those terms and to find concrete incentives to combat
trafficking via market tools. In starting to develop such economic framework, I
suggest we reexamine the scope of U.S. led sanctions authorized by TVPA, explore
avenues via bilateral and multilateral trade and labor agreements, revise
international, public and private lending policies, and develop best practices (and
market sanctions) for transnational businesses and governments to regulate supply
Rather than viewing market-based approaches as competing with the quest for
human rights and global justice for women, children and vulnerable laborers, I
suggest that such approaches may not only remedy some of the limitations and
weaknesses of the current discourse, but in fact further the mission of the global
human rights movement, and with it the quest for the elimination of trafficking in
Brenda V. Smith: Uncomfortable Spaces, Closed Spaces: Theorizing Female
Correctional Workers’ Sexual Interactions with Men and Boys in Custodial Settings
I have had a long interest in the intersections of gender, crime and sexuality both in
my professional practice as a lawyer and in my scholarly work.[1] Much of that work
has addressed the “comfortable” topic of staff sexual abuse of inmates, which is
widely perceived as a problem of male staff sexually abusing female inmates. An
area that remains relatively unmined is the role of female workers who sexually
abuse persons in custody. The female corrections’ worker narrative is complicated
and characterized by strategic silences and accommodations by many invested
actors both internal and external to the criminal justice system – women’s rights
groups, correctional agencies, and states. This paper attempts to untangle those
complicated and overlapping narratives, identify the discomfort that feminist
scholars and other actors (not necessarily separate) have in addressing female
workers who sexually abuse adults and youth in custodial settings, discuss relevant
research and suggest a framework for additional research in this area.
Thursday 7th June
12:30-2:15: Accounting for Care in Private Law
Chair: Emily Grabham
Simone Degeling and Mehera San Roque: Valuing Care: how does private law
account for care?
The tort liability model in part assesses damages for personal injury by reference to
the value of gratuitous care provided by the carer to the tort victim. For example,
nursing care, domestic services or the care of children. This care is particularly
prominent where victim does not have the financial resources to pay for commercial
care. The prevailing feminist account of this valuation argues that care provided by
family members tends to be treated differently than care provided non-gratuitously.
This paper notices that services, including care, are also valued in the unjust
enrichment liability model and investigates the extent to which the apparent gender
bias evident in the tort example is also present in unjust enrichment. This paper
also examines the role of autonomy in these liability models and the extent to which
this feminist account of service valuation is supported in the non tortuous (although
gratuitous) context of unjust enrichment.
Elaine Gibson: The Foetus in Common Law Jurisprudence
The foetus has historically played a contested role in common law jurisprudence.
Recent judicial pronouncements have revived the debate. In separate judgments,
courts have ruled that putative parents and governments cannot sue on behalf of an
as-yet-unborn foetus. A right of the foetus to sue at common law on her/his own
behalf for injuries sustained prenatally does crystallize on live birth; however, there
are limitations on this right. A lawsuit by the child against one’s mother for prenatal
injury is prohibited. Likewise, lawsuits for wrongful life are barred, as are most
lawsuits for costs of raising a child born due to wrongful pregnancy. And, recently,
the Ontario Court of Appeal has ruled that a physician providing treatment or
services to a woman of childbearing potential owes no duty of care in negligence if
the woman becomes pregnant and the foetus incurs injury due to the treatment or
Rationales for limiting the right of the foetus to sue, and for others to sue on behalf
of the foetus, include the fundamental protection of the pregnant woman’s right to
decision-making. Corollary to this right is a concern that a physician might be
compromised in his/her ability to provide optimal medical services to a woman of
childbearing potential if the potential foetus is within the scope of the physician’s
duty of care. A conflict of interest could arise if the physician is required
simultaneously to consider the best treatment for the woman and the possibility of
injury to a foetus if born alive. The primary rationale for denying an action for
wrongful life is the stated impossibility of calculating damages. Similarly, courts
tend to deny the costs of raising a healthy child born following wrongful pregnancy
for a number of reasons, including the difficulty in assessing the blessings and
burdens of parenting a child.
Rationales for granting the foetus the right to sue following live birth include the fact
that if legal action is denied, a child who has incurred injury prenatally due to
another’s negligence must in theory bear the entire cost of injury. His or her
autonomy as injured victim is flatly denied. The tortfeasor, on the other hand, goes
scot-free. And the burden of raising a disabled child most likely falls primarily on the
mother who, along with the child, stands the most to lose if injury goes
In this paper I intend to examine the range of jurisprudence to identify and analyze
arguments as to the wisdom or lack thereof in finding a duty of care to the foetus
following live birth. I will be reviewing jurisprudence from American, British, and
Canadian jurisdictions to compare and contrast approaches to this topic.
Palma J. Strand: Do We Value Our Cars More than Our Kids? The Conundrum of
Care for Children
Formal child care workers in the United States earn about $21,110 per year. Parking lot
attendants, in contrast, make $21,250. These relative wages are telling: The market values
the people who look after our cars more than the people who look after our kids. This
article delves below the surface of these numbers to explore the systemic disadvantages
of those who care for children—and children themselves. The article first illuminates the
precarious economic position of children in our society, with a disproportionate number
living in poverty. The article then documents both that substantial care for children is
provided on an entirely unpaid basis in households, predominantly by women, and that
care for children is undervalued when it is provided through the market. After presenting
three distinct perspectives on market payments for care for children—(1) a public goods
analysis; (2) a patriarchy analysis; and (3) a gift analysis—the article proposes a set of tax
breaks for income from jobs that involve care for children.
2:30-4:15: Race, Sexuality and Definitions of the Family
Chair: Reg Graycar
Anisa de Jong: Adoption by same-sex couples in the UK: exploring gendered and
heteronormative conceptions of parenthood and ‘the family’
Issues of sexuality and gender have become more pertinent in adoption practice in
the UK as a result of two recent legal changes: firstly, the Adoption and Children Act
2002 that allows same-sex couples to adopt jointly (implemented 30 December
2005) and, secondly, the Equality Act (Sexual Orientation) Regulations 2007,
banning discrimination on the ground of sexual orientation in the provision of goods
and services, including in the provision of adoption services. The first piece of
legislation was ostensibly argued in Parliament as not being motivated by equalities
principles, but rather as a measure required to address the shortage of adopters for
children in public care and therefore serving the welfare of children. The main
arguments against this legal change at the time included the need for children to
have a mother and a father, or male and female role-models to develop ‘normally’,
as well as the alleged instability of same-sex relationships and concerns about
children getting bullied or being made to feel ‘different’. The second piece of
legislation, this time with the equalities argument centrally placed, exacerbated in
particular tensions between religious, moral or cultural family values and adoption
by same-sex couples. In particular many Catholic adoption agencies resisted the
requirement to assess and place children with lesbian and gay adopters.
This paper explores (aspects of) the context in which the legal changes occurred
and the developments since its implementation, such as the question of how legal
equalities demands interact with wider issues such as the legal regulation of
‘families’ and state versus charitable funding of adoption. The paper explores the
tensions within the fluctuating relationship between state and voluntary provision of
adoption services, against a backdrop of growing anxieties about the overall failings
of the child care and child protection systems and the resultant increases in state
regulation of child care services and in the drive to get more children adopted. The
paper also explores how social workers, adoption agencies and other professionals
in the field have responded to the legal change in their policies and practice, and
what the experiences of LGBT couples coming forward to adopt have been. Are
there indications that new hierarchies are being reinstituted, and does adoption by
same-sex couples open up possibilities to re-think adoption in general, shifting
debates away from who ‘is’ the family or what ‘is’ kin?
Lois Harder: Foreign Affairs: Security, Birthright and National Citizenship
Determination in Canada
This paper explores the confluence of national security, birthright citizenship
determination, and definitions of family. Using Canadian citizenship legislation and a
series of relevant cases (Benner v Canada (Secretary of State) 1997; Augier v
Canada (Minister of Citizenship and Immigration) 2004; Taylor v. Canada
(Citizenship and Immigration) 2007, 2007; M.A.O., among others), I explore the
circumstances that have led Canadian courts and Parliament to privilege equality
and birthright over security, as well as those instances in which narrow definitions of
family have been upheld in the service of security and the integrity of national
Birthright is connected to parentage as well as the presence or absence of a
marriage between parents. In Canada, for people born abroad prior to 1947,
children inherit their citizenship from their fathers, if their parents were married at
the time of their birth, and from their mothers, if their parents were unwed. In the
context of World War II, this law protected Canada from the citizenship claims of
children resulting from relationships between Canadian soldiers and foreign
nationals (Canada, Debates, 30 April 2007 at 16:45). For people born after 1947,
these same rules pertained until they were successfully challenged in Benner 1997
and Augier 2004. Intriguingly, both of these cases involved an adult with a criminal
record, born outside of Canada, who attempted to claim citizenship on the basis of
a Canadian parent. The principles of coverture that resided in such rules are
abhorrent to contemporary notions of gender equality, and it was gender equality
and marital status that became the focus of the courts’ corrective action in these
decisions. Taking a broader view though, these important principles of equality are
entrenched within a profoundly illiberal (if pervasive) principle of birthright
entitlement to citizenship, in a confrontation with the sovereign power of the state to
protect itself from undesired claims on resources and from dangerous individuals.
Liberal political theorist John Locke declared, contra his contemporaries, that the
family was not an appropriate metaphor for the state. While families were formed on
the basis of affection and blood, political societies were a product of consent. Locke
was mistaken. Families are also the product of rules, while the state instrumentally
recognizes and ignores the formal rules that constitute the apparently ‘natural’
status of birth, and the familial orders that lie at the heart of political membership.
Ultimately, my argument is that the legal fictions that create family forms and
political societies merit exposure and clear-headed debate in the service of both
more democratic polities and appropriate recognition for various familial forms of
Terri Libesman: Human Rights and Pluralising Indigenous Child Welfare
This paper considers whether a human rights approach can offer greater autonomy
to Indigenous women with respect to their children’s welfare and well being. How do
contrasting conceptions of human rights law – as universal, transcendental and
fixed on the one hand and pluralised, grounded in experience and transformative
on the other – impact on different approaches to Indigenous children’s welfare and
well being? Child welfare legislation in Australia has been influenced over the past
decade by developing United Nations human rights jurisprudence with respect to
Indigenous people’s rights, in particular the right to self determination and rights
under the United Nations Convention on the Rights of the Child. The peak
Australian Indigenous children’s organisation, the Secretariat of National Aboriginal
and Torres Islander Child Centres (SNAICC) has lobbied for a human rights
approach to Indigenous child welfare, and in a number of Australian jurisdictions
has attained greater participatory rights in child welfare processes. While there is
tension between universal, statist and regulatory conceptions of human rights and
pluralised and inclusive understandings; Indigenous peoples engagement with and
inclusion within UN processes has augmented greater emphasis on the latter. This
in turn has influenced national child welfare reform. This paper will consider the
possibilities which a pluralised approach to human rights offers to extend from child
welfare to broader community development issues pertaining to Indigenous
children’s well being. In particular, could a human rights approach transform the
largest welfare program with respect to Indigenous peoples in Australia, the
Northern Territory Intervention, which addresses structural reforms which underlie
neglect and abuse, but from a paternalistic and discriminatory framework?
Honni van Rijswijk and Thalia Anthony: ‘ A n e l e m e n t o f b l u f f o r
deception’ : Parental Consent and State Control in the Stolen Generations Cases
Consent, will and agency have problematic uses in the law. Subjected groups are
implicitly inferiorised through these concepts, such that their complicity to acts of the
subjector is taken for granted. This complicity, Sadiya Hartman asserts, shrouds the
‘condition of violent domination’ that actually operates between subjector and
subjected. Writing about the legal context of racial subjugation during slavery and
its aftermath in the US, Hartman argues that consent became ‘intelligible only as
submission’. In the Australian context, non-‘whiteness’ has historically been a point
of reference for structural inferiority in Australia, according to Ghassan Hage. Yet
the law nonetheless assumes consent as capable of being equally afforded by
‘blacks’ and ‘whites’. The historical impossibility of consent in the context of forced
subjection is usually not disentangled, explored, or even ‘seen’ by the courts.
In Stolen Generations cases, assumptions that ‘whites’ could better care for
children underlie the implication of complicity in the Aboriginal child removals.
These assumptions were taught to and at times appropriated by Aboriginal parents
– who were then seen as succumbing to the system’s logic. It allowed the state to
be presented as a benevolent institution rather than a terrorising one. But there is a
further sinister side to the domination, which is always on guard when
manipulations falter. When parents failed to comply with the removal of their
children, they would attract reprisals from state agents – with consequences that
included being reported to police, losing employment or experiencing physical
Our reading of recent Stolen Generations cases below argues that Courts prior to
Lampard-Trevorrow (2010) treated consent as an individual act freely and
voluntarily given by a liberal subject. Consent was seen as a legitimate factor that
duly activated the powers of the legislation to bring about legal removal, according
to O’Loughlin J in Cubillo. In the previous Stolen Generations case of Williams,
formal consent had barred false imprisonment and trespass on the basis that a child
cannot be imprisoned if her mother consented to the removal. We go further than
simply suggesting that Aboriginal consent has been misread by the courts—which
was clearly the situation until the case of Lampard-Trevorrow. It also proposes that
consent was, and is still used in an underhanded way by the state to legitimise its
actions and protect itself from liability. After all, most statutory creatures governing
the Stolen Generations allowed for removal irrespective of consent. The state,
nonetheless, sought to procure consent in order to rationalise the policy, facilitate
removals, and shift the responsibility for removal from the state to Aboriginal
parents. The use of consent in this way turned the state’s act of removal into a
parental act, thereby transforming ‘relations of violence and domination into those of
affinity’. It suggests that the powerless had agency and strength, and that there is
an ‘ostensible equality between the dominant and the dominated’, while at the same
time concealing the actual powerlessness of the subjected.
Aleardo Zanghellini: Hawaiian Mahuwahine, Tahitian Mahu and Childrearing
Queer parenting, although still a relatively novel phenomenon (at least under
conditions of visibility), is quickly becoming an established feature of more and
more societies in the contemporary West. As this happens, questions of care at
times of austerity acquire new shades of meaning and a new urgency within queer
communities. Yet, there are sexuality and gender variant people around the world
for whom such questions – caring for children, and doing so during periods of
economic uncertainty – are not new, although they may arise in different terms. In
particular, for Hawaiian mahuwahine (male to female transgender people of
Polynesian descent) the question may be not so much how to care and provide for
their own children at times of contracting personal and collective economic
resources; but one of engaging in childcare as a survival strategy under routine
circumstances of relative economic deprivation:
‘Not fully accepted in today’s mainstream economy, mahuwahine have maintained a
subculture of survival through welfare/SSI supplemented by hustling, drag
entertainment, small jobs and care giving for children and the elderly’ (http://
From a Euro-centric perspective, it may appear surprising that this passage singles
out caregiving for children as typical work of male to female transgender people.
However, Eastern Polynesian social norms have traditionally seen gender-variant
people involved in childrearing.
Nonetheless, the quote sketches a picture of the involvement of Hawaiian
mahuwahine in childcare that seems only a pale reflection of the childrearing role
that gender-variant people are likely to have traditionally played in Hawaii, and
which they still play elsewhere in Eastern Polynesia. In particular, in the Society
Islands it is not uncommon for mahu (male bodied gender variant people) to be
involved in childrearing as foster parents through the mechanism of traditional
adoption – something strikingly different from undertaking paid childcare as a
survival strategy. What accounts for this difference between the childrearing roles of
Hawaiian mahuwahine and French Polynesian mahu?
This paper argues that law is part of the answer to this question. The paper
hypothesises that the reduced childrearing role played by mahuwahine in Hawaii is
related to their loss of social status and that colonial law was partially responsible
for this loss. Legal (and social) developments followed a different trajectory in the
Society Islands, meaning that Tahitian mahu have experienced nowhere near as
dramatic a loss of social status as their Hawaiian counterparts. Consequently they
have been able to retain a role not merely as child minders and carers but as
Friday 8th June
10:15-12:00: Vulnerability and Autonomy
Chair: Diana Majury
Nicola Barker and Marie Fox: Revisiting Capacity to Marry: Balancing Autonomy
and Protection
This paper critiques the UK High Court’s formulation of the test for capacity to marry
in the case of Sheffield City Council v. E and Another [2005] Fam. 326. E was a 21
year old woman with a learning disability, who wanted to marry S, a 37 year old
man with a substantial history of sexual violence. In his judgment, Munby J set the
bar for capacity to marry very low, claiming that the institution of marriage is easy to
understand and emphasizing that the lives of those with learning disabilities would
be ‘immensely enriched’ by marriage. Whilst accepting that marriage will be
experienced very differently depending on whether one marries a ‘loving pauper’ or
a ‘wife-beating millionaire’, he also rejected the arguments of Sheffield that the
understanding of marriage should be considered in relation to a particular
(intended) spouse rather than in the abstract. Therefore, had E lacked capacity to
marry S, she would have lacked capacity to marry anyone at all – a situation that
Munby J was reluctant to create.
We have previously written a shadow judgment for this case as part of the UK
Feminist Judgments Project. Drawing on the more nuanced test of capacity to
consent to medical treatment, we instead based our decision on the question of
whether E understands marriage in the context in which she will enter the
institution: this puts both E and S at the centre of the question of capacity. Does E
understand the institution of marriage and what it might mean to be married to S?
This would include, amongst others, questions about the extent of E’s
understanding of S’s previous convictions. In this paper, we outline and expand
upon our reasoning in formulating the test in this way, drawing upon academic
literatures on capacity and autonomy. Capacity is central to notions of autonomy,
agency and choice, which have been the subjects of extensive feminist analysis, yet
capacity itself has not been given such attention.
Kate Gleeson: Just What Is a Feminist Abortion Law Anyhow?
From 2004 to 2006 abortion became the subject of much debate among Australian
MPs, culminating in the passage of a private members bill in regard to the use of
the so-called ‘abortion pill’ RU486. The then Minister for Health, Tony Abbott,
initiated the anti-abortion debate with a speech in March 2004. His stake in the
issue of abortion led to the first serious consideration of the question by the
Australian Parliament since the debate over the Human Rights Bill in the early
1980s. Many commentators linked the recent debate to Abbott’s Catholic faith, and
some identified the debate as an indication of the heightened prominence of
‘religious influences’ in the ‘nation’s parliamentary protocol’. While the religious
motivations for the debate are perhaps obvious, and to be expected, what was
more puzzling was the ways in which anti-abortion arguments were framed by way
of post-feminist rhetoric. Abbott himself did not speak of a religious perspective on
abortion, but rather asked, ‘What does it say about the state of our relationships and
our values that so many women (and their husbands, lovers and families) feel
incapable of coping with a pregnancy or a child?’, and so on. In this paper I
examine contemporary post-feminist framings of abortion and law, which tend to
rely on a notion of what Angela McRobbie terms a ‘feminist success’’, in order to
portray abortion as representing a failure of women. In particular, in examining the
recent debate over Australian laws governing Ru486 I examine the ways in which
conservative politicians in Australia have coopted the feminist ideal of ‘choice’ to
inform anti-abortion arguments which rely perversely, on the myth of a now
redundant feminism, as articulated by post feminism. Australia is an informative
example to study because in the 1970s feminists had relative success in arguing for
abortion as ‘choice’, to the extent of securing sustained public subsidies for abortion
services. The legal protection of abortion has been more or less secured since that
time, but increasingly the ideal of abortion as ‘choice’ has been publicly debated,
both by feminists and conservative politicians informed apparently by the
discourses of post feminism. In this context, I examine conservative Australian ‘post
feminist’ treatments of abortion and choice to show the ways in which canny
conservatives may manoeuvre their arguments within post feminist discourse, and
yet still maintain a condemnation of abortion, which seems to be at odds with the
ethos of the new sexual contract of neoliberalism.

Margaret Hall: Mental Capacity in the (Civil) Law: Fairness, Control and Vulnerability
This paper considers mental capacity in three (non-criminal) legal contexts: property
related transactions (including wills), health care decision making, and
guardianship. Capacity is conceptualised in each as essentially cognitive: the
ability to make rational decisions (although the capable person can choose, as an
exercise of individual autonomy, to make irrational decisions so long as they
possess the capability of doing otherwise). Capacity is further conceptualised as
existing in different “degrees,” more or less of which will be required for the range of
different “decisions” within the three contexts given above. The author concludes
that, counter to this formal account, the capacity inquiry in each of these contexts
has a very different purpose and is therefore about a fundamentally different
subject. In the property context, the “capacity” analysis (legal in nature and
controlled by legal actors) is fundamentally about fairness. In the health care
context, the “capacity” analysis (medical in nature and controlled by medical actors)
is fundamentally about control. In the guardianship context, the “capacity” analysis
(medical in nature although formally controlled by legal actors) is fundamentally
about the social response to vulnerability is a certain class of cases (older adults
with “cognitive impairment” which in this case may be taken to include mental
illness). This de facto deviation from the (theoretical) mental capacity model (as
embedded in the capacity/autonomy paradigm) is not faulty practice: vulnerability
is, must be, and should be the proper focus of guardianship and guardianship-like
interventions. The author contends that the conceptual framing provided by the
capacity/autonomy paradigm in the guardianship context has precluded the
coherent theorizing of vulnerability and she suggests a framework for doing so
drawing on theories of equity and relational autonomy.
Helen Pringle and Siti Muhammad: Recognising Shari‘a? Religious Law, Autonomy
and Vulnerability
The argument of this paper is that the criterion for recognising religious laws in
multicultural societies should not be the overall compatibility of a system of religious
law with liberal equality, but rather, whether and how a proposed measure of
recognition addresses questions of autonomy and vulnerability. The example used
is that of marriage law. In early 2008, the Archbishop of Canterbury Dr Rowan
Williams suggested that religious law such as Shari‘a should be recognised in some
circumstances. This suggestion was met with hostility in England and elsewhere.
For example, members of the Australian government insisted that there is no place
for Shari‘a here and that the Australian legal system upholds important values such
as justice, equality and human rights norms through the ‘facial neutrality’ of existing
laws and structures (in the sense of not explicitly prohibiting or favouring specific
religions or religious practices). In contrast, we argue that discussions surrounding
such questions, as well as arguments against the recognition of religious law more
generally, have focussed too much on the need to safeguard social cohesion with
the guiding principle that everyone should be subject to the same set of laws at the
risk of social catastrophe. Our argument here is restricted to the specific issue of
the possibility of recognising Shari‘a in Australia. We argue that recognition of
Shari‘a is possible and might in certain circumstances be desirable in justice in
order to address the vulnerability of certain individuals, a vulnerability that existing
Australian laws ignore and in some cases perpetuate.

2:30-4:15: Author Meets Reader – Transforming Law’s
Family: The Legal Regulation of Planned Lesbian
Motherhood, by Fiona Kelly
Chair: Rosemary Hunter
Author: Fiona Kelly
Readers: Diana Majury, Nancy Polikoff, Yvonne Zylan
Published May 2011. Within the field of law and society, increasing attention is
being paid to constructions of the family. Social shifts and new reproductive
technologies are challenging traditional models of parenting, leading to a wider
range of family formations and urgent new questions about the legal regulation of
kinship. Central to these dilemmas are challenges posed to current legal structures
by planned lesbian families. Fiona Kelly’s important new book, Transforming Law’s
Family, is the first empirical legal study of lesbian families in Canada and an
impressive analysis of this complex area of law and policy, with relevance far
beyond North America. This author meets reader session brings together a range of
critical legal scholars from common law jurisdictions to debate the implications of
Kelly’s book for socio-legal theory, family law, and feminist and queer jurisprudence.


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