Gender Auditing the Human Rights Act 1998
| Published date | 01 December 2005 |
| Author | Susan Millns |
| Date | 01 December 2005 |
| DOI | 10.1177/135822910500800205 |
International Journal
of
Discrimination and the Law, 2005, Vol.
8,
pp. 75-90
1358-2291/2005 $10
© 2005 A B Academic Publishers. Printed in Great Britain
GENDER AUDITING THE HUMAN RIGHTS ACT 1998
SUSAN MILLNS
University
of
Kent, UK
ABSTRACT
With
the passage
of
the
Human
Rights
Act
1998
(HRA),
a new
era
has
begun as a
distinct rights culture
has
come
to
pervade
UK
law, society
and
political life.
The
purpose
of
this article is to test the progressive credentials
of
the
HRA
in the light
of
the long-standing
and
stringent critique
of
rights discourse by feminists
through
an
assessment
of
the legislation's capacity
to
improve the protection
of
the
fundamental
rights
of
women
and
sexual minorities. Using
data
emerging from
applications
of
the
HRA
before the courts, the
paper
carries
out
a gender
audit
of
the Act
to
weigh the balance
of
its positive
and
negative implications for
women
and
minority
litigants
and
highlights areas
of
activity
in
which claims
might
be further advanced in terms
of
human
rights. Employing feminist legal
scholarship
to
frame its analysis, the
paper
investigates the examples
of
sexual
violence, reproductive rights
and
the
rights
of
transgender persons
and
sexual
minorities,
in
order
to explore the reconfiguration
of
conflict
of
rights situations
under
the
HRA
and
the balancing
of
competing right claims as they are beginning
to
emerge in the new rights culture.
INTRODUCTION
One
of
the
most
important
constitutional
changes
to
have
been
introduced
in
the
United
Kingdom
since
the
arrival
in
power
of
the
Labour
government
in
1997
has
been
a
commitment
to
improve
human
rights
protection.
With
the
passage
of
the
Human
Rights
Act
1998
(HRA),
a
new
era
has
begun
as a
distinct
rights
culture
has
come
to
pervade
UK
law,
society
and
political
life.
The
change
has
important
implications
too
for
the
future
direction
and
content
of
feminist
legal studies.
After
all,
rights
discourse
has
for
many
years
captured
the
hearts
and
minds
of
the
feminist
community
for
both
its
positive
promise
to
end
deeply
rooted
oppression
based
upon
gender
and
sexuality
as
well
as
its
negative
capacity
to
provoke
a
backlash
against
women's
and
minority
rights
claims
and
to
further
the
demands
of
opposing
interest
groups.
The
purpose
of
this article is
to
examine
the
implications
and
effects
of
the
recent
innovations
in
UK
human
rights
law
since
the
76
entry
into
force
of
the
HRA
in
terms
of
the
capacity
of
the
legislation
to
enhance
the
rights
protection
offered
to
individuals
who
might
otherwise
be
vulnerable
to
violations
of
their
human
rights
for
reasons
of
their
gender
or
sexuality.
The
article is divided
into
two
main
parts.
It
begins
with
a
contextualisation
of
human
rights
law
within
the
framework
of
feminist
engagement
with
rights discourse,
particularly
the
critique
of
rights,
considering
the
specific
innovations
of
the
HRA
and
their
implications
for
women
and
sexual minorities
seeking
to
take
advantage
of
what
is a technical legal
channel
for
asserting rights claims. Building
on
this feminist
appraisal
of
the
HRA,
the
second
part
of
the
article considers
recent
applications
of
the
HRA
and
audits
the
legislation
for
its
impact,
both
positive
and
negative,
on
the
furtherance
of
rights
protection
in
the
domain
of
gender
equality.
Considering
how
conflict
of
rights
situations
have
been
reconfigured
under
the
Act,
the
article examines
how
the
legisla-
tion
may
be
operationalised
in
the
name
of
promoting
gender
justice
while suggesting
too
that
it
is
not
only
offensive
but
also defensive
action
which
may
need
to
be
taken
in
the
making
of
rights claims
under
the
new
system.
THE
HRA
1998 -
POSSIBILITIES
AND
PROBLEMS
IN
THE
LIGHT
OF
FEMINIST
ENGAGEMENT
WITH
RIGHTS
DISCOURSE
In
order
to
understand
better
the
implications
and
possibilities
associated
with
using
the
HRA
as
a
tool
to
further
gender
equality
through
recourse
to
rights,
it
is first
necessary
to
address
the
not
inconsiderable
amount
of
feminist
literature
which
expresses scepti-
cism
over
the
effectiveness
of
using
rights
claims
to
promote
equality
(e.g.
Brown,
1995;
Kingdom,
1991;
Smart,
1989).
Such
scepticism
may
be
situated
squarely
within
the
critique
of
rights
discourse
which
has
permeated
other
liberal
constitutional
democracies
such
as
the
United
States
and
Canada
where
it
has
been
convincingly
asserted
that
formal
legal
rights
may
be
simply
incapable
of
deliver-
ing
on
their
promise
to
end
the
oppression
of
marginalised
groups
(e.g.
Tushnet,
1984;
Mandel,
1989;
Bakan,
1997).
Thus,
Wendy
Brown
has
famously
suggested,
in
addressing
the
value
of
employing
rights
language
to
assist
women,
that
rights
are
to
be
suffered as
'paradoxes',
being
'that
which
we
cannot
not
want'
(Brown,
2000:
p.
231 ).
While
on
the
one
hand
they
may
be
inherently
desirable
as
tools
of
liberation
for
oppressed
individuals,
their
very
abstraction
and
universalism
tends
inevitably
towards
a
perpetuation
of
women's
exclusion, a failure
to
acknowledge
difference
and
a
lack
of
recognition
of
the
diversity
of
women
themselves.
Not
surprisingly
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