Angry Dolls on the Burqa and Clothing by Jill Marshall August 2018
Law and Identity by Jill Marshall April 2017

Gender Inequality in 21st Century Britain by Jill Marshall August 2017

Applicability of data protection legislation to online revenge porn by Ksenia Bakina May 2017

Female Genital Mutilation/Cutting: a Political View by Anna Davies October 2017


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In this blog, I explore some aspects of how Law relates to who we are, our identity, our self or our personality. My most recent book, Human Rights Law and Personal Identity, published by Routledge explores these issues in much greater detail. In this entry, I explain briefly what this esoteric phrase actually means.

Article 22 of the Universal Declaration of Human Rights 1948 states that everyone is entitled to the realisation of the rights needed for one’s dignity and the free development of their personality. Article 29 states that ‘everyone has duties to the community in which alone the free and full development of his personality is possible.’ It is therefore clear that the existence of a personality does not ‘just happen’ or take place in a vacuum, without assistance, or support from, or interconnection with, other people. The realisation of one’s dignity and freedom of personality formation takes place in a social setting. Although the position taken in my new book is that personality, or personal identity, is created with and through others in our environments, it is argued that it is still your life and no one else’s. This is meant in the sense that no one else can live it, ‘from the inside’, for you: it is possible for you to interpret what happens to you and make decisions and take responsibility for them. This will have legal consequences.

It is often considered that what makes us who we are involves a mixture of elements. These can be categorized as: (1) those we all have in common with others, (2) those we share with only certain others, and (3) those unique to that person.

See also:
J Marshall Personal Freedom Through Human Rights Law? Autonomy, Identity and Integrity under the European Convention on Human Rights (Martinus Nijhoff Brill 2009)
J Marshall ‘Personal Identity’ in D Greenberg (ed) Jowitt’s Dictionary of English Law (London: Sweet and Maxwell 2010)

​​​​​​​(1) In terms of elements we share with all humans, these are often described as universal, in some sense pre-social or forming the essence of all persons. These include being a member of the human species, having the potential for rational thought, having a soul or spirit. Yet such views have been criticised for causing problems if a person does not seem to fit into these categories easily. These have historically been used to exclude certain members of the human species from acquiring full legal rights: for example, black people and women.
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Certain characteristics, such as sex, race, nationality or religion, are shared in common with others often grouped together socially or politically. The tensions in formulating some idea of personal identity for legal purposes can be seen in the way ‘Identity Politics’ has developed. There are claims for equality, but these are then made on the basis of differences among groups of people with defining characteristics, such as race or sex. Those people are ‘grouped’ together for the purposes of political action yet fractures soon become visible. Arranging people into groups can re-enforce stereotypes. Yet for many, these groups are inherently part of who we are, not seen as an arrangement or a choice.
We do not live alone. Who and what we are involves identification with, in the sense of finding something in common with, or being similar to, other human beings. It also almost invariably entails un-identification from others, in the sense of being different and distinct from, those others. This universal belonging, yet difference from, forms a crucial tension in our consideration of who we are: of our personal identity. The juxtaposition of belonging through similarity and difference is evident in human rights law seeking to enshrine ideas of the human; both as an individual, including as a member of certain groups or cultures, and as a member of the human species to be accorded dignity, freedom and equality. As Amartya Sen observes ‘identity can be a complicated matter…When we shift our attention from the notion of being identical to oneself to that of sharing an identity with others of a particular group the complexity increases further.’ (Sen at xi-xii)
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What makes a particular person unique includes ideas of continuity in his or her life, projects and choices, knowledge and understanding of their parentage, origins and past experiences, commitments to their family, intellectual capacity and talents. This description illustrates a network of values and convictions that structure and give meaning to a person’s life, making them who they are.
Jennifer Rosner states that:
‘there is nothing simple about being a self …[o]ur feelings clash, our wills waver, our desires are incompatible…We are only partly rational…Even as we doubt and deceive ourselves, we are creative, evaluative, and self-interpreting. And, always, we live with the possibility of falling apart’….(Rosner at p xv)
This ‘messy’ version of our identity, of who we are or our personality is too rarely captured in law. In law, we need some sort of unity of the self or a ‘tidy self’ to make claims, to ensure ideas of equality before the law. However, we may have to acknowledge that, although this may be reassuring, it may also be false and encourage reducing who we are to one characteristic. This can lead to an impoverished life of narrowing aspirations, stunting creativity. However, this doesn’t need to happen.
We can seek new ideals and conceptions of identity that can accommodate the ambivalence, incoherence, and irrationality that mark our human experience in our ‘messy lives.’
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Direct Sex Discrimination and Disadvantage to women:
R (on the application of Coll) v Secretary of State for Justice [2017] UKSC 40

Introduction: Does Law Have a Gender?

Law seeks to regulate how we do and should behave with each other in society. It is traditionally associated with justice. However, what justice means and how it relates to law is contested. Law is supposed to be neutral, objective and impartial, blind to bias, with everyone equal before it. Yet many argue it is structurally biased, like the society it shapes or reflects, to women’s disadvantage. In this short blog, I investigate how litigation can be used as a tool of change and transformation by presenting a short case review of a recent Supreme Court judgment, R (Coll). Before I review it, here is a short introduction to the topic which will be followed up with further entries.
Perhaps as a consequence of the women’s liberation movement of the 1960s and 1970s, women have been drawn to the legal profession so that the volume of women lawyers has significantly increased. Within this changing legal world, questions are increasingly asked about the way different types of people are viewed, reflected and protected by and through law. Although there was work in the past, for example, from Mary Wollstonecraft and campaigners for the suffrage, legal work developed in these more recent times to question different areas of the law to see how girls and women were legally perceived and treated. For example, in criminal law, what are the experiences of girls and women who have been raped or who have suffered domestic violence? How are sex workers treated? In employment law, how have women who are pregnant, or sexually harassed, been protected by law? Why are women and men not paid the same amount of money for work of equal value?
As women continue to become part of the legal community, with the numbers of law students composed of at least equal numbers from both sexes throughout the Western world, the proportion of women partners at law firms has not significantly increased in many countries, and the pay gap in salaries largely remains, in the legal profession and elsewhere. Women have the equal right to vote but are not equally represented in political or legal life. Women across the world continue to suffer from gender based violence and unequal life chances: see in general www.un.org for much evidence of this. Many of us in our work as lawyers question the structure and underlying purpose of law and investigate whether law itself is gendered in some way. Could such an investigation into the structure of law show that it favours men’s lives? Does law play a role in reflecting, creating and sustaining an unfairly gendered world which is arranged to women’s disadvantage?
This is a vast topic but in this introduction I have summarised some aspects of these complex and controversial issues before now briefly analysing a recent Supreme Court decision which found direct discrimination against women in a government policy.

Policies of Discrimination
At the end of May, the Supreme Court unanimously allowed an appeal granting a Declaration that the Ministry of Justice’s provision of ‘Approved Premises’ (‘APs’) - premises where certain prisoners live as a condition of release from prison - constitutes direct discrimination against women. This is unlawful unless justified and the Secretary of State had shown no such justification.
APs are single sex establishments. There are 94 for men, distributed around England and Wales, including several in London. There are only 6 for women, and none of these are in London. This means that women are much more likely than men to be placed far from their homes and communities.
The appellant, a female ex-prisoner who on release was required to reside at an AP, brought proceedings seeking declarations that:
(a) the current provision of APs amounted to
unlawful sex discrimination, contrary to the Equality Act 2010 (EA) and
a breach of her Articles 8 and 14 rights contained in the European Convention on Human Rights through the Human Rights Act 1998; and
(b) the Secretary of State had acted in breach of s.149 of the EA’s public sector duty of equality by failing to have due regard to the need to eliminate discrimination against women in the provision of APs and to advance equality of opportunities for them. (The high court judge had made such a declaration and this was not challenged by the government at the Supreme Court).
The appellant argued that being required to live in an AP far from home is a detriment which a woman is much more likely to suffer than a man because of the geographical distribution of the small number of APs available for women. Thus this is treating her less favourably than a man because of her sex. She was successful because this practice constituted direct discrimination which can only be justified in limited and defined circumstances.
The crucial question was whether the limited provision for women was a proportionate means of achieving a legitimate aim. The Court stated that saving costs is a legitimate objective of public policy but, if a benefit is to be limited to save costs, it must be limited in a non-discriminatory way, citing paragraph 66 of O’Brien v Ministry of Justice [2012] ICR 955 ‘budgetary considerations cannot justify discrimination’. The Ministry of Justice never properly addressed its mind to the problem of providing sufficient and suitable places in APs for women which achieve, as far as is practicable, the policy of placing them as close to home as possible. Other options could have been considered, such as:
replacing large APs for women with smaller units more widely spread
replacing one or more of the existing women’s APs with ones closer to the areas where many offenders have their homes
considering alternative forms of accommodation for women released on licence.
It is for the Secretary of State to show the discrimination is justified and, the Court said, she had so far failed to do so.
Lady Hale, the only female Supreme Court judge in history – who is shortly to become the first female President of the Supreme Court which is also to gain another female judge – gave sole judgment with which all the other judges agreed. She referred to the Birmingham schoolgirl case, R v Birmingham City Council Ex p Equal Opportunities Commission [1989] 1 AC 1155, where a system of selection for secondary school places existed but for historical reasons it had fewer places for girls than boys. This meant the passmark for girls in the entrance exams was higher than for the boys. Reference was also made to the retirement-age swimming pool case, James v Eastleigh Borough Council [1990] 2 AC 751. The court stated that it is not necessary to show that there is always discrimination against women: it is enough to show this happened in this case. For example, in the Birmingham case, some of the girls achieved a high enough mark to get a place at a selective school. However, there were some who achieved marks which would have been high enough had they been boys but were not high enough because they were girls. That is direct discrimination on grounds of sex.
Lady Hale saw no distinction between the Birmingham case and this one. All the women required to live in an AP suffered the much greater risk than the men that they would be sent to an AP far from their homes and families. The fact that some of them would not suffer this detriment does not mean that those who do suffer it have not been discriminated against. In Lady Hale’s words:
… the material circumstances are that they are offenders being released on licence on condition that they live in an AP. Those circumstances are the same for men and women. But the risk of being placed far from home is much greater for the women than for the men.
So, in summary, there was no evidence and no finding that the aim was to ensure men and women were accommodated in similarly appointed premises. The Ministry of Justice had not:
- addressed the possible impact on women, or
- assessed whether there is a disadvantage, how significant it is and what might be done to mitigate it, or
- attempted to meet the particular circumstances of women offenders.
As such, it cannot show that the present distribution of APs for women is a proportionate means of achieving a legitimate aim.

Litigation as a strategic tool
As a result of this Judgment, an individual woman who is less favourably treated as a result of the provision of APs may bring a sex discrimination claim but it will be open to the Secretary of State to resist the claim on the grounds that it is justified.
The case has wider implications. It is one of a number of cases where arguments based on the provisions of the Equality Act 2010 and the Human Rights Act 1998 are made to show the unjustified policies that disadvantage and discriminate against women. Discrimination and equality law’s approach can be off putting: for example, the analysis of comparators, proportionality and legitimacy can seem overly technical and even mechanical so that in itself can be interpreted as gendered to male ways of thinking. However, there is much scope to creatively (re)interpret law to obtain legal judgments showing the variety of existing discriminatory practices and policies so that law can be more meaningful for everyone. So while the law can be, and has been, criticised for reinforcing structural gender bias, it can be changed and transformed to increase gender equality and women’s – and correspondingly all men’s – freedom. Litigation is one method of achieving this.

https://www.bindmans.com/insight/blog/gender-inequality-in-21st-century-britain-using-litigation-as-a-tool
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Revenge pornography has received much attention in the media over the last few years and is a practice involving the online publication of sexually explicit images without consent of the person depicted. It typically occurs when an ex-partner shares sexual images of his/her ex in order to seek retribution for the ending of a relationship. Whilst this is how revenge pornography has gained its name, the practice is more complicated than this and is not limited to that scenario. It can also involve sexual images which were obtained through hacking of a storage device, through sexual assault, by resort to voyeurism and even images which were made to look sexually explicit through digital alterations. There are numerous locations where revenge porn images can be found on the internet. These include social media platforms, pornography websites, anonymous messaging boards and finally, revenge porn websites, created specifically to attract these images.

Section 33 Criminal Justice and Courts Act 2015 (CJCA) was enacted specifically to address revenge porn and prohibited disclosing private sexual photographs and films with intent to cause distress. However, this Act alone cannot provide sufficient tools to adequately tackle online revenge pornography. By predominantly focusing on the individual perpetrator responsible for dissemination and by setting a high threshold to prove intent, the CJCA 2015 cannot hold internet platforms which facilitate distribution of revenge porn accountable.

Data protection law may be more effective in tackling this practice. Sexual images and the information identifying victims online can fall within the scope of the definition of personal and sensitive data under the Data Protection Act 1998 (DPA). The provisions of the DPA 1988 allow action to be brought against the individuals who upload the images, the websites that host them and the search engines that list them in their search results, because they can all be identified as data controllers. Pursuant to Google v Vidal-Hall [2015] EWCA Civ 311 there is no need to show pecuniary losses in order to claim damages under section 13 DPA 1998 and claims for compensation can be issued against all data controllers. Further, Google Spain SL v Agencia Española de Protección de Datos has firmly re-embedded the responsibility of search engines (even those who have their headquarters in third states but have an establishment within the EU) to remove personal data from their search results. As a result, by enabling victims to hold internet platforms accountable and by facilitating removal of revenge porn images, the data protection regime can empower victims to gain control of their lives. It may enable them to feel like a sexual subject, rather than a sexual object.
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Female Genital Mutilation/ Cutting is a global problem. UNICEF estimates that over 200 million women and girls are living with the consequences, concentrated across Northern and Central Africa. This data has been used to create a narrative which places responsibility for FGM/C on a specific group: black, Muslim women, who arrange the cutting of their daughters.

Often, this is not necessarily factually incorrect. It is, however, simplistic. This narrative neglects the significance of broader considerations, including access to education, which are necessary for rights to bodily autonomy to exist in real terms. It artificially confines responsibility to individuals who are themselves vulnerable to a lack of enforcement of their human rights.

This episodic account of FGM/C is protected when tradition is preserved as an inherent good. Cultural relativism in this sense allows gender based violence, including FGM/C, to continue. Prohibition is rarely effective, as law enforcement actors struggle to engage with practising communities, allowing for de facto non-intervention.

The oft claimed religious defences of the practice compound problems of relativism. For instance, in Egypt, nearly 50% of women and girls understand FGM/C as a religious requirement.1 However, not only does FGM/C pre-date both Islam and Christianity,2 it has been rejected by the Al-Azhar Supreme Council of Islamic Research, a body of considerable authority in Egypt. It is also prohibited under Egyptian law. And yet, such is the strength of the practice here, 77% of cuttings are performed by Doctors in hospitals.3

Both religious and cultural relativism prevent FGM/C from being the concern of 'outsiders.' To overcome this, the practice is better understood as fluid, operating across global society in complex and non-uniform ways. A political view of the practice then becomes appropriate.

Reports of cutting in Dagestan, Russia, help to show how politicisation can conceal FGM/C. While the rural setting of the villages in question must not be overlooked, the discovery of cutting in Russia rebuts the general assumption that it occurs within a particular narrative.

Consequently, cutting has been made a political instrument by external actors. Reactions in Russian media to the exposure of FGM/C in Dagestan, included denunciation of the report as “ “a deeply inappropriate hoax” perpetrated by liberal political forces in order to destabilise Dagestan.”4 Using this subject to reify the conservative/liberal dichotomy is symbolic of a wider disregard for matters which affect women, and slips back to cultural relativism.

This sits in deep irony with holistic and substantive politicisation of FGM/C. Cutting can be understood within a socio-economic and political context, rather than solely as a violation of sexuality and physiology.5 Refreshingly, this view engageswith survivors as rights-bearing persons. Such a view can avoid the pitfalls of a well-intentioned yet reactionary approach, which continues a narrative that reduces women to gendered stereotypes. By understanding FGM/C in this broader rights-based and politically aware language, ownership of the subject is returned to survivors and those at risk.

Meaningful abolition of FGM/C would therefore imbibe the wider, political concerns of the women and girls who suffer the risk or effects of cutting, and build on what is already recognised as a breach of human rights, in the episodic sense. This requireswidening social responsibility to a global level, rejecting the cultural relativism of supporters of FGM/C and those who instrumentalise it to fit their own narrative. A contextually grounded yet holistic approach is a long-term objective, but this does not lessen the urgency of the cause.

References
1UNICEF Female Genital Mutilation/Cutting: A statistical overview and exploration of the dynamics of change (2013) 71
2UNICEF (2013) 69
3UNICEF (2013) Introduction
4Rachel Horner, 'Russia orders inquiry into claims of FGM in Dagestan' (5 November 2016) <https://www.theguardian.com/society/2016/nov/05/russia-orders-inquiry-into-claims-of-fgm-in-dagestan> ; Daria Litvinova, 'Girls under the knife: Is Russia ready to tackle FGM?' (24 August 2016) <https://themoscowtimes.com/articles/fgm-55084>
5Hope Lewis, 'Between Irua and “Female Genital Mutilation”: Feminist Human Rights Discourse and the Cultural Divide' (1995) 8 Harvard Human Rights Journal 1, 41
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