Feminism and the law notes

What is feminism ?
• Feminism is a socio-political and cultural movement that advocates for the rights and
equality of women on the grounds of political, social, economic, and cultural factors.
• Feminism seeks to challenge and address the historical and ongoing discrimination,
marginalization, and oppression faced by women in various societies around the
world.
• It encompasses a wide range of perspectives, theories, and approaches, but the core
principle is the belief in gender equality and the recognition of gender-based
injustices and inequalities.
• Feminist movements have evolved over time and have made significant contributions
to issues such as women's suffrage, reproductive rights, workplace equality, and the
dismantling of patriarchal systems.
• Feminism is not a monolithic ideology, as it encompasses various waves and
perspectives, including liberal feminism, radical feminism, intersectional feminism,
and more.

Features of legal feminism

• It is a critical approach involving the use of gender/ women. Shares a common
methodology approach that looks at the women’s experience.
• Gender is a central category.
• It originates from feminist political activism in the West
• Central to Feminism is the idea that the law reflects the social relations.
• Engages with law by critiquing the law as it is and the law as it ought to be.
• Political objectives of the different sub schools of feminism differ according to context
but the crux of it is challenging gender power.
• There is a nexus between theory and practice and between understanding the law
and acting to change it.
• Feminism was formally recognized in academia in the 1980s even though feminism
was engaged with in the early 19th century.

Third wave feminism

• The third wave of feminism emerged in the 1990s, and it aimed to address the
shortcomings and intersectionality of the previous waves.
• Intersectionality became a central concept, emphasizing that feminism should be
inclusive of women of all races, ethnicities, sexual orientations, and backgrounds.

• The fourth wave

• The fourth wave of feminism, ongoing in the 21st century, is characterized by its use
of digital media and social networking platforms to organize and advocate for
change.
• This wave has seen the rise of online movements like #MeToo and #TimesUp, which
have shed light on sexual harassment and gender-based violence.
• Fourth-wave feminism continues to prioritize intersectionality and amplifies the voices
of marginalized groups within the feminist movement.
 Marxist and socialist feminism
• Exposes the gendered nature of the values and principles of liberalism.
• Class was the major source of fragmented power and oppression in society.
• Womens oppression originates from the family unit and reinforced by capitalism.
• No longer prominent
• Oppression stems from class and gender thus Marxist and socialist feminism rejects
the liberal view of law as neutral.

Other types of feminism

• Relational feminism- emphasizes gender differences based on women distinct
attributes result in distinct feminine understanding of the world.
• Critical race feminism- criticized mainstream feminism for ignoring black women.
• Post modern feminism- rejects the idea of foundational truth.
- Interested in the construction of individual identity.
- The idea of women is not fixed nor described alone through the relation to men.
-
• Radical feminists
• Radical feminism criticises both liberalism and Marxism.
• Focus on the issue women’s subordination in the private sphere.
• Violence, abortion, pornography and sexual harassment.
• Emerged in 1970s in SA.
• Seek social change through engagement with the law emphasizing women’s
differences and point of view.

Liberal Feminist perspective

• Emphasizes the core principles of freedom of choice, individual rights, non-
discrimination and equal opportunity.
• Concerned with public citizenship and legal equality with men.
• Men and women as the same and gender resulted from socialization.
• Points out the bias in law and challenges the content of law to eradicate gender bias.
• Social change is demanded from liberal feminist perspective.
• Sameness/ difference-demanding to treat women identical to men.

Black consciousness Movement

• Women were not seen to be able to contribute meaningfully in political activity
• [Steve] Biko challenged Nuinsa to take an active stance against the segregated
residential facilities that Rhodes University had imposed on the congress. The
university discriminated against black delegates: "Indians" and "Coloureds" had to
stay in town while Africans were required to stay some distance away in a church
location; whites, on the other hand, could stay in the university residences. (Wilson
1991, 22)
• Preamble to the Constitution of Allied Black Women's Federation" (Moodley 1991,
147). Black Review 1975/75 (143), quotes the aforementioned
• Preamble to read:
• 1. . Black women are responsible for the survival and maintenance of their families
and largely the socialisation of the youth to transmit the Black cultural heritage.
 • 2. The need to present a unified front and redirect the status of motherhood toward
the fulfilment of the Black people's social, cultural, economic and political aspirations.

• Black women were expected to remain in domestic roles and act as supporters of
comrades. Women who engaged in politics were considered to be “honorary men.”

What is intersectionality?
• Intersectionality denotes the various ways in which race and gender interact to shape
the multiple dimensions of experiences.
• Crenshaw suggests a methodology that disrupts the idea that race and gender as
separable, existing on exclusive terrains
• Mapping the margins focuses on three categories:
• 1. Structural Intersectionality
• 2. Political Intersectionality
• 3. Representational Intersectionality
- The framework is not limited to race and gender (Audre Lorde, Simon Nkoli, Bev
Ditsie), it is extended to the below
•

• interconnectedness is a concept that refers to the state of being connected,

interrelated, or interdependent with other things or elements.
• It suggests that various components or entities are linked in such a way that
changes or influences in one can have a direct or indirect impact on others.
• In a broader context, interconnectedness often implies the recognition that everything
in the world is part of a larger system, and actions or events in one area can ripple
through and affect other areas.
• It is a fundamental concept in fields like ecology, systems theory, and sociology.

Identity categories
• Identity categories are seen from a perspective that reinforces bias / utilized as tools
to structure and marginalize.
• Examples of identity categories include race, class, gender, sexual orientation et al.
• Crenshaw asserts that even though these categories are socially constructed, we
cannot remove the social significance of these categories because they shape the
experiences of people.
 - That is why a colour blind and gender neutral society will not work because we
live in a society that is shaped to privileged on person/s over the other.
• Difference is important as a source of social empowerment and reconstructions.

Structural intersectionality
Structural Intersectionality and Battering
• Black women and women of color are additionally burdened by circumstances
created by class and race oppression: poverty, childcare responsibilities and
lack of job skills.
- Example: Women who remained in abusive marriages because of fear of
deportation/ “undocumented” workers who suffer sexual abuse and exploitation
because of fear of arrest and deportation.
• Abusers perform violent acts on certain classes of women with impunity(preforming /
acting without the fear of consequence) because of the social location of those
women and the unlikelihood that they would seek third party intervention from the
police.
- Example: A client abusing a trans sexworker knowing that they would not report
them because of the criminalization of sexwork.
- Sexwork in this instance is the only avenue available to protect themselves.
• “Intersectional subordination need not be intentionally produced… it is frequently the
consequence of the imposition of one burden that interacts with pre-existing
vulnerabilities to create another dimension of disempowerment.”
- It is the consequence of the society we live in.
• Thinking ahead: The Second closet partners of intimate partner violence in same-
sex relationships are less likely to report their abusers because of the interlocking
systems of oppression at play.
- Fear of being outed in the community if they report to the police as a result they
do not report.

Structural intersectionality and rape

• Counsellors who provide rape crisis services to Black women and women of colour
report that a significant proportion of the resources allocated to them must be spent
on handling other issues than the rape itself.
• These include immediate needs like housing, clothing etc.
• These occur because of class issues, poverty.

Political intersectionality
• Highlights the fact that women of colour are situated within at least two subordinated
groups that frequently pursue competing political agendas.
• Think to FeesMustFall: feminists being vocal about the issues of women and queer
people were seen to be detracting from the bigger picture(which is class and race )
- They were viewed as disruptive/ challenging the “hierarchy of oppression”
• Black women/ Black queer women/ Black Queer people are” unimagined” in white
feminist spaces/ white queer spaces/ black political movements.
• “One analysis often implicitly denies the validity of another
 1. Domestic violence and antiracist politics:
• Internally divisive: protecting the integrity of the Black community which has been
historically stereotyped as violent and brutal.
• Alice Walker’s “The colour purple” and the political cost of exposing gender violence
within the Black community and was politically lynched for this book.
• Suppression of these issues at who’s cost? Black women.

2. Race and domestic violence lobby

• In encouraging visibility and vocalness in white communities about gendered
violence, the effect is white women coming into focus and not disrupting the patterns
of neglect that permitted the gendered violence problem to continue when it was
solely phrased as a “minority issue”
• With the visibility of gendered violence in these communities and these being seen
as minorities.
• The focus then shifted to the uplifting and powering of resources to victims of
gendered violence in white communities and not in black communities.

3. Race and domestic violence support services

• Issues of language barriers and inaccessibility to shelters/ immediate sanctuary and
support.

4. Political intersectionalities in Rape:

• Historical dominant conceptualization of rape Black offender/ white victim = Black
men subject to legal and extralegal violence/ casting of all Black men as a threat to
white womanhood.
• Legal conceptions of rape steeped in patriarchal notions of women as property/
expectation of purity and chasteness/ setting parameters of who can be raped?
Women were (and continue to be placed on trial)

Cautionary rule in SA law of evidence (S v Jackson)

- "The cautionary rule in rape cases is based on the principle that women are
naturally prone to lie and to fantasise, particularly in sexual matters and that they
are naturally vengeful and spiteful and therefore likely to point a finger at an
innocent man just out of spite. There is absolutely no evidence that women are
less truthful than men, or that they fantasise more or that they are naturally
vengeful and spiteful. Such a suggestion is misogynistic, and should be
dismissed out of hand. Therefore the cautionary rule is based on a principle
which is discriminatory towards women, and inappropriate in countries committed
to equal rights for men and women, and the rule should be prohibited on this
ground alone. The cautionary rule has been called a lingering insult to women.”

• Sexual Hierarchy: holds certain female bodies in higher regard than others.
• The primary beneficiaries of policies supported by feminists and others concerned
about rape tend to be white women. The primary beneficiaries of the Black
community’s concern over racism and rape: Black men
• Black women face subordination based on both race and gender therefore reforms of
rape law and judicial procedures that are premised on narrow conceptions of gender
subordination may not address the devaluation of Black women.
 • Black women are pre-packaged as sexually deviant/ hypersexualized as a
consequence of colonial conquest and slavery (a slave woman could not be raped/
she was viewed as an object for ownership)
• In terms of the intracommunity violence, as a result of the continual emphasis on the
Black male sexuality as the core issue in antiracist critiques of rape, Black women
who raise claims of rape against Black men are not only disregarded but also
sometimes vilified within the Black community. (Zuma/ Tyson trials)

Race and essentialism in feminist legal theory

• Unitary ‘essential’ women’s experience can be isolated and described independently
of race, class, sexual orientation and other realities of experience.”
• Critique of Mackinnon and West
• A law that is trying to speak for all persons silences persons without power, feminist
legal theory is in danger of silencing those who have traditionally been kept from
speaking, or who have been ignored when they spoke, including Black women.
• Feminist legal theory: dominant culture: mostly white, straight and socio-
economically privileged people who speak for ALL.
• Gender essentialism: a monolithic “women’s experience” that can be described
independent of other facets of experience like race, class and sexual orientation.
- Which is not true .
• Racial essentialism: the belief that there is a monolithic “Black experience”
• Makes way for unconscious racism: singular story-teller (the one who holds a
privileged position) will be the one who wants to tell the story and this story does not
reflect the experiences of all black woman.
• Monolithic" is an adjective that describes something as being singular, massive,
uniform, or unchanging or rigid.

Mackinnon Criticism
• Dominance theory: sexuality is central to dominance and subordination
• Mackinnon’s view of sexuality: that social process which creates, organizes,
expresses and directs desire, creating the social beings we know as women and men
as their relations to society.
• MacKinnon assumes that there is an “essential woman” beneath realities of
differences between women.
• This implies that the hierarchy of recognition here is the category of woman and her
conception of womanhood is framed by white womanhood
• Her inclusion of Black women and their experiences is superficial, an afterthought
and mainly occupying footnotes
• MacKinnon views Blackness as auxiliary to womanhood and not the identities as
interlocked and inseparable.

Essentialism in feminist theory ignores Black Women’s voices in two ways:

1. the essential woman is leached of colour/ social circumstances/ issues of race
belong to a separate discourse outside of feminism which requires Black women to
fragment themselves
2. feminist essentialists’ removal of race is the removal of Black women which makes
white women the epitome of “woman”
- Black women are removed and what is regarded as a woman is a white woman.
• “Black women are not white women with colour”

West theory criticism

• West does not imagine black women at all .
• West’s theory purports that the experiences of all women are asserted by the
experiences of mothers.
- This posses a real issue and being a woman is characterized and having had a
baby.
- So now what about those without children? (because of sterility or by choice).
• Argues that the biological and social implications of motherhood shape the selfhood.
• This leaves out women who have rejected a role that is framed by “biology and
reproduction”
• Motherhood shapes the selfhood of all women

Two assumptions:
• Everyone has a deep, unitary self that is stable and unchanging.
• Self differs significantly between men and women but is the same for ALL women
regardless of class, race and sexual orientation .

Attractions of gender essentialism

1. Intellectual inconvenience/ easy/ not being required to do the labour to understand/
learn about the lives of Black women. Dominant culture is essentialist.
2. Essentialism represents emotional safety/ women’s movements will be a new home
of comfort and not conflict.
3. an opportunity to play power games within the movement and with men/ creating
hierarchies of oppression/ the right to define women’s experiences.

Beyond essentialism: black women and feminism thought

• Moving away that the shared commonality is victimhood.
• Bell hooks, “ the notion that women’s commonality lies in their shared victimization of
by men directly reflects male supremacist thinking.”
• “gender essentialism is dangerous to feminist legal theory because in its attempt to
extract an essential female self and voice from diversity of women’s experience, the
experiences of women perceived as “different” are ignored or treated as variations to
the (white) norm.
•