4 Feminist Legal Theory and Generation of Rights

Severyna Magill

Learning Aims:

By the end of this module you will have knowledge of: what feminist legal theory is; the dominant first three generations of feminist legal theory; and, the critiques of the theories. You will also learn why these theories matter in the contemporary world. You will be able to form your own opinion about which theory you feel is the most appropriate for understanding how and where women’s rights are placed and understood in law. The module relies on the works of Martha Chamallas, and Carol Gilligan to present a comprehensive introduction to the topic.

Introduction:

The feminist legal theory is the analysis of law from a feminist, or women’s rights based perspective. The feminist legal theory is a useful tool as it helps to develop reforms to correct gender exploitation, injustice or restrictions of either the articulation or implementation of women’s rights in society. Although there are a variety of different theories which have very different approaches to the subject matter, they work on a few common normative assumptions. The notion that men and women are of equal legal and moral worth and that they have a right to non-discrimination and to have their rights fulfilled under the law is the common basis of all theories.

Many feminists believe that the current articulation of the human in human rights law as the universal rights holder is male centric. Universal rights within domestic and international human rights law, therefore, do not always fully represent women’s lived experience or needs. The construction and the articulation of law have therefore been largely criticized by feminists. To understand why a feminist critique of law has emerged, this module will examine the socio-economic status of women in the West in the 1950s before then examining how the feminist movement chose to engage with the law to seek reform. The module will then examine the three generations of feminist legal theory before ending with questions posed for the future. In effect this module aims to provide a ‘her-story’ approach to recent history and to present a gender-sensitive perspective.

Types of Feminist Legal Theory:

“Many contemporary political identities and social issues evolve around conflicting claims of disparate identities involving different groups, since the conception of identity influences, in many different ways, our thoughts and actions.” Since the 1950s women have been trying to have their voices heard and needed represented within the domestic and international law. Women’s collective demands have evolved over time becoming more complicated and nuanced to the different needs different women have and how these could be better accommodated within legal frameworks. As each dominant voice has evolved, it has also been labelled as a generation. This module will examine three significant generations of feminist legal theory.

The three main generations of the feminist legal theory are equality or liberal feminism; difference feminism; and, intersectional feminism. There are also other forms of feminism such as socialist feminism, black feminism, eco-feminism, post-structural feminism, and trans-feminism. The following module will introduce the reader to cultural, radical and black feminism. This will enable the reader to become familiar with the core theories and to understand both the perspective the theories were coming from at the time they evolved, how their arguments were articulated and why new theories developed. It will also enable you to navigate the diverse and sometimes contradictory arguments of feminist scholars. Each of the successive generations aims to have a response to critique(s) of the previous generation and try to fill the gaps which were not guaranteeing all women substantive equality. By presenting the theories as generations, the reader can successfully locate the strengths as well as the shortcomings of the various strands of feminism and form opinions about what suits their perspectives and needs better. These theories have been developed in the western context and cater to the needs of those who wrote them and the people in their communities.

An example of how generations of feminism did not exist in a linear way as demonstrated by the generations as presented below, or exclusively in the West is demonstrated by the work of Kamaladevi Chattopadhyay. Kamaladevi Chattopadhyay was born in India in Mangalore in 1903. She devoted a significant part of her life working to promote women’s rights within India. In the 1940s she had travelled to Europe to present the unique situation of Indian women who were not only fighting patriarchy but also imperialism at a conference in Denmark. Unable to return due to the onset of World War Two she went on to travel across the USA presenting the same issue. She, therefore, demonstrated a deep understanding and awareness of the concept of intersectional discrimination before it was formally named and recognized as such. Even earlier in 1851 Sojourner Truth, gave a speech ‘Ain’t I a Woman?’ Here she articulated the concept of intersectional discrimination; she stated that she was not only discriminated against as she was a woman but also because she was a coloured woman.

Feminist Legal Theory – What Came Before the First Generation?

Before the first generation of women’s legal theory developed, women had actively been seeking rights from their governments, e.g. to vote on an equal basis with men. This right was fairly easy to articulate and then demand from the executive. In the UK the suffrage (seeking the right to vote) movement (commonly referred to as the Suffragette Movement) started to gain significant momentum in 1903 when Emmeline Pankhurst formed the Women’s Social and Political Union. The movement for women’s equality in the UK can, however, be traced back to 1817 when Jeremy Bentham’s ‘Plan of Parliamentary Reform’ speech was presented to Parliament. In 1865 John Stuart Mill was elected to parliament. Whilst is campaigning he pledged to fight for votes for women.

In 1918 the Representation of the People Act was passed giving some women the right to vote. This was then extended to include all women over the age of 21 in 1928 with an Amendment of the same Act. Internationally the Convention on Political Rights of Women (CPRW), which came into force in 1954, demanded that women be allowed to vote on an equal basis with men.

By the 1950s-60s women were seeking both broader protections from the law as legal rights and wider implementation from their governments to enter and remain in the workforce, particularly post marriage and pregnancy, and to regulate the surrounding promotions, pay, benefits and rewards of employment. It was at this time that the women’s voice became so unified with a clear form of thought defining not just what should be demanded from the state but also on what basis that a feminist legal theory was developed.

Photo from the early 1900s in the UK of women demanding the right to vote on an equal basis with men Cover page from the UN Convention on the Political Rights of Women (1954) that aimed to give all women the right to vote internationally.

The First Generation – Equality Feminism:

The first generation, equality feminism (sometimes referred to as liberal feminism), is seen as the ‘original’ theory in feminist legal theory. This generation lays emphasis on women’s similarity to men. It works on the idea that “gender should be irrelevant to the distribution of legal benefits and burdens.” Women were frustrated with being pigeon-holed into administrative and secretarial positions within the workforce. Gender stereotypes, dominant in the era that the theory developed in, assumed women were not capable of being in decision making or managerial positions because they were not able to handle stress as well as men, or that women’s priorities were getting married and bearing and nurturing children and maintaining the marital home. The common belief was therefore either that women were uninterested in seeking positions of authority within the workforce or that they would not be able to commit the hours. Women’s applications for decision-making roles were therefore either rejected or male candidates were given preferential treatment.

When women were unable to rise beyond a certain level of employment, typically because of gender stereotypes that influence people’s expectations of their abilities, this is called the glass ceiling. A further frustration for women was that they typically received a lower salary for the same type and quantity of work as their male peers, even when they had similar qualifications and worked the same number of hours. This is called the gender pay-gap. Women, therefore, fought to have their skills and abilities recognized on an equal level as men. They wanted, and felt they deserved, access to the same types of opportunities and benefits as men did and that they should be allowed access to all public institutions.

In the 1960s women were allowed to be bus conductors but were not allowed to be bus drivers as driving was seen as a job only men were capable of. Women protested and demanded equal access to driving positons and the higher salaries and benefits this position offered.

This generation of feminist legal theory is known to accept the language and aims of the laws as they existed but wanted women to be more included and represented within the existing legal framework. This claim is based on the argument that women are equal to men regarding their skills, intelligence and capacity to do the same jobs for the same economic rewards. This premise reinforces the liberal feminist legal theory’s claim that most of their arguments arise from the idea of individual rights. Their main objective is to implement the law based equally for all individuals.

As women were frustrated at not having the same opportunities as men this theory focused on trying to eliminate differences and gender stereotypes between men and women’s capability to perform similar tasks. The liberal feminist’s main aim was therefore to dismantle the sex-based legal distinctions that had been established purportedly to protect women, but that served to exclude them from positions within the workforce. Equality feminists, in their efforts to prove their sameness to men, also chose to criticize stereotypes perceived as ‘natural differences’ between men and women that served to under-represent women in managerial positions or in political participation and their over-representation in care work.

As liberal feminists fought to be seen as the same as men and to have the same rights that already existed for men they have often been called “assimilationists” – they ‘assimilated’ to a pre-existing model of rights. They “tend[ed to] not to challenge the standards, rules, or structures themselves, but to focus instead on equal access within their framework.” As this generation of thought simply ‘adds’ women to the language of the laws which already existed it is often called the ‘adds women and stirs’ approach –women are being added to a pre-existing framework, but the original substance (law) is not changing.

Critique of liberal feminism

Liberal feminism has been criticized for multiple reasons. First, as the theory does not call for substantive change within the law but only the adding of women to existing protections it has been criticised for only benefitting women to the extent that they want/are able to assimilate/conform to the expected behaviour of (middle class, privileged) men. Second liberal feminism has been critiqued for essentialising women (assuming all women are the same) with the same set of needs, aspirations and starting point in society (e.g. the same socio-economic resources, educational qualifications and level of acceptance by employers). This doesn’t recognize differences between women and their different needs. Third as men are physically unable to become pregnant and socially were not expected to be primary care givers due to powerful gender stereotypes pregnancy and childbirth and time off work for the same were not given protections.

Even with the changes in the law that liberal feminism introduced it did not, therefore, ensure equality for women with men throughout their careers: Once women started to be given the same rights as men to enter the workforce, be considered for promotions, enter positions of authority, and earn higher pay they soon realized there were other obstacles that hadn’t previously been identified that needed to be overcome to enable women to retain their positions. When women wanted temporary leave from work for maternity they found that no special protections existed to protect their positions of employment, rights to be considered for promotions or to even be given paid leave. The battle for women to secure equal rights as men in the workforce and public sphere had been won, but women now realized whist being equal intellectually to men they were different physically and structures surrounding their daily lives needed to be more accommodating.

The Second Generation – Difference Feminism:

The second generation, difference feminism rooted its arguments on the basis that though the equality approach had helped women get more rights than they previously had the basis that men and women were equals in every sense was faulty. The concept of sameness between men and women was questioned resulting in the articulation of the ‘male bias’ or androcentric theory. Both of these concepts recognise that law, as it existed before and after the first generation of feminist legal theory, is gender blind – it doesn’t recognise the differences between men and women, for example, reproductive functioning. Difference feminism recognises men and women as being equals but with physical differences which result in a different set of needs.

Difference feminism asserts that within the law and other social power structures within society the male norm is seen as the primary starting point and point of reference for all articulations of rights. In order for women to, therefore, have the same rights as men, they can only benefit as much as they assimilate to the male, or androcentric, model. It highlights the “male bias and male norms in rules, standards, and concepts that appear neutral or objective. Rules designed to fit male needs, male social biographies, or male life experiences.” The second generation of feminism challenges the possibility of women being able to effectively assimilate into an inherently male model aims to address the shortcomings of assimilation to enhance actual substantive equality.

In order for women’s needs to be recognised and then met difference feminists introduced the ‘woman question.’ The ‘woman question’ prompts decision makers and people interpreting and/or drafting legislation to question whether women’s needs met within existing law or law that is being drafted. It recognises that women have a distinctive set of needs and that if women are subjected to a gender-blind law meaningful, substantive equality will not be achieved. Asking the ‘woman question’ has allowed any gender-neutral or gender-blind law that disproportionately discriminates against women to be read as not achieving equality, or in domestic courts as unconstitutional. It has helped to expand equality provisions and prompted the emergence of equality impact assessments in some countries to ensure policy or legal decisions do not disproportionately affect one gender over the other.

Whilst women had started entering the formal workforce in greater numbers their positions within the workforce remained vulnerable, especially during and post pregnancy. Within employment law demands paid maternity leave were now articulated. Further women wanted guarantees that the same job with the same responsibilities would be available upon their return to work. Demands for consideration for promotions and decision making roles that do not discriminate against women who have taken breaks from the workforce for parental reasons were also made to try to ensure that women were not discriminated against. Legal responses to difference feminism include mandated maternity leave which gives women the legal right to paid time off work to give birth and nurture a baby and the right to return to her job after this has been completed.

The Maternity Benefit Act (1961) India

The Maternity Benefit Act (1961) in India, amongst other provisions, includes protections for pregnant women or new mothers regarding their and their child’s health, financial benefit when they are not at work and protection of their positions. Paragraph 4(3) states: “no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do… any work which is of an arduous nature or which involves long hours of standing or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.” This is a recognition by the legislature of women’s difference from men and how their working conditions and health can have a direct impact on an unborn child.

Further paragraph 5 states “every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day.” This provision recognises that new mothers need financial support when it will be difficult for them to return to work and that due to nursing and the physical impacts of childbirth women need specific provisions not applicable to men.

Paragraph 12 makes it unlawful for an employer to discharge or dismiss a woman who in accordance with the Act is not at work: Where a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence.” This provision protects women from losing employment because of pregnancy and/or childbirth and therefore recognises the vulnerability of women’s positions and security within the workforce during this period that men do not experience.

These provisions are for the exclusive benefit or pregnant women or new mothers. The Maternity Benefit Act, therefore, recognises women’s difference from men regarding reproduction and accommodates this within the legislation. As of 1st April 2017, several amendments have also come into force; the duration of maternity leave has been expanded from 12-26 weeks, commission and adopting mothers are also entitled to leave, and all employers with more than 50 employees are required to also have a crèche. It does not provide for parental (joint) or paternal (for the father) leave.

Difference feminism is the dominant feminist theory within the legislature and judiciary in the West. Different countries have tried to accommodate biological differences between men and women that have resulted in disproportionate impacts on women within the workforce.

Critique of Difference Feminism

The dominant critique of difference feminism is that whilst it recognises women’s biological difference from men it does not recognise differences between women. The protections that difference feminism intended to provide were largely for the benefit of the middle class, white, heterosexual women engaged in formal employment. The theory does not recognise the structural disadvantages that black women face, for example in their socio-economic status, quality of education received, racism and discrimination in employment. Nor does it consider the position of other sections of women who have less security, are not heterosexual, married, or less physically abled etc.

Another critique of difference feminism is that whilst it provides for protections such as maternity leave this does not prevent women from still being discriminated against in employment regarding access to promotions and other rewards and benefits and does not promote structural change within society or the workforce. For example, within academia in order to secure tenure, a faculty member must publish a certain number of publications within a fixed number of years. For primary care givers, who are overwhelmingly women, if they have a child during this time they are automatically at a disadvantage as when they are caring for a newborn and young child they are unlikely to also be able to research and publish papers at an equal level as men if they are not the primary carer. NYU (New York University) in the USA has a policy whereby parents who are expecting a newborn child can apply to have their tenure clock (the period of time within which publications must be made) stopped when their childcare/parental leave starts and then re-started when they return to work. Whilst this is sympathetic to the reality that most carers for small children do not have the time to research or publish the result is that a woman who chooses to have one child will need to publish 5 papers within 6 years, or if she has two children 5 papers within 7 years whereas a person who does not take childcare leave (overwhelmingly men) will need to publish 5 papers within 5 years. The result of this policy is that academics who do not take childcare leave are promoted faster and receive all of the benefits such as higher salaries, increased job security and more influence faster than those who take childcare leave.

Such policies contribute to the lack of representation of women at decision-making levels and their lower financial rewards within institutions and organisations globally. A more gender-sensitive approach would be to consider time for parental or family leave to be considered equal to that of one publication. For example, if you have published one less paper over a period of 5 years but in that time you had or were the primary care giver for a baby, your parental leave will be considered equal to one paper. Employees who have children will therefore not be negatively affected by their personal choices and will be recognized for their contributions to the workforce and their biological (pregnancy) and social (parental care) roles. Policies within the workforce that provide incentives for men to play an equal role in child rearing and provide high quality, available child care provision will also be structurally making the workforce more accommodative.

The Third Generation – Complex Identities:

Whilst the second generation of feminism responded to the gaps in equality feminist legal theory, the third generation, complex identities or intersectional feminism also aimed to fill the gaps left by the first and second generations of feminism. The 1990s saw a shift in how the difference was perceived; it moved from between men and women to between women.

Third generation scholars identified that the first and second generations of feminism did not recognize structural disadvantage. Whilst they aimed to give women as a group more rights, it essentialised all women as one group who had the same social position and shared the same barriers which prevented them from seeking equality with men. It did not recognize the differences that exist between women. In order to represent these differences multiple co-existing voices emerged that articulated the identities and forms of discrimination different women experienced. Until now women’s needs had largely been defined by and represented the needs of the theorists who had articulated them: white, middle class, heterosexual women. The third generation of feminism articulated the lived experiences of a wider range of women and different, co-existing identities that all intersected with one another to reinforce the discrimination they experienced or barriers they faced to accessing the same opportunities. These include but are not limited to socio-economic status, sexual orientation, employment status, marital status, single mothers, ethnicity, race, religion, age, immigration status, geographic location, level of physical/psychological ability and those less-abled.

In the 1960s women were getting increased rights in the public sphere, but non-heterosexual groups (of men and women) were excluded from having equality with heterosexual people – they had no rights to marriage, inheritance, adoption etc. and in many cases, homosexual sexual intercourse was still criminalised at this point. Whilst homosexual sex and non-heterosexual marriage are now legalised in most of the West the Supreme Court of India struck down the Delhi High Court judgment removing homosexual sex from the criminal act of unnatural sex in 2013.

Similarly whilst women were getting equal status in the public sphere regarding employment rights women of colour were still experiencing racial discrimination – notably in South Africa where apartheid was still in force but also more discreetly across the world.

Recognizing multiple forms of oppression co-exist enabled women to embrace a more inclusive approach towards defining their broad range of lived experiences, perspectives and identity by adopting a ‘both/and’ approach to selecting categories of identity or discrimination as opposed to an ‘either/or’ approach. This was very significant as the legal regime in place prior to this had been resistant to recognize that multiple forms of discrimination co-exist and reinforce disadvantage and to subsequently provide redress. This can be seen in the Degraffenreid et al. v. General Motors case referenced below.

Intersectional Feminism:

Intersectional feminism moves beyond analysing discrimination on singular, or mutually exclusive, forms of discrimination which enables people’s lived realities and experiences of discrimination to be understood as often occurring due to multiple factors or aspects of their identity. The need for this encompassing stance is highlighted in the 1976 case of Emma Degraffenreid and others v. General Motors Assembly in the American state of Missouri.

Degraffenreid, a black American woman, took her employer, General Motors, to court claiming she had been discriminated against because of her sex and colour. She worked in a factory that employed 8,561 workers. Of these black women were 1.81% of the workforce. As part of cost saving redundancies all but one black woman, the janitor, lost their jobs. Black women comprised 7.10% of all of the redundancies. Degraffenreid et al. claimed they had been discriminated against both because they were black and because they were women.

When the district court heard the claim, it stated: “The plaintiffs are clearly entitled to a remedy if they have been discriminated against. However, they should not be allowed to combine statutory remedies to create a new ‘super-remedy’ [emphasis added] which would give them relief beyond what the drafters of the relevant statutes intended.” The judgment went on to ask whether “a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both” [emphasis added] had taken place. By choosing to adopt the either/or and not the both/and approach the court did not recognize the multiple levels of discrimination women of colour experience by virtue of both their sex and colour.

The active resistance and reluctance by the court to recognise the multiple forms of intersecting discrimination which reinforces the social disadvantage women of colour experience was furthered when the court said: “The legislative history surrounding Title VII does not indicate that the goal of the statute was to create a new classification of ‘black women’ who would have greater standing than, for example, a black male. The prospect of the creation of new classes of protected minorities, governed only by the mathematical principles of permutation and combination, clearly raises the prospect of opening the hackneyed Pandora’s Box.”

The court’s resistance to the recognition of the situation of black women as a group as opposed to women, and or black, (where the individuals, e.g. white and black women or black women and black men are not always equal ) demonstrates the lack of a gender sensitive, rights based approach to dispensing justice. This case reinforces how law if it is interpreted and applied neutrally, in the same way for different people, can be a source of injustice rather than justice.

Demands for equality continue today:

I need feminism because we were in 2015 and my brother controls how I dress and talk just because he’s a man and I’m a woman. I need feminism because my conservative dad & step-mom shouldn’t call me “self-centered” if I want to learn how to cook for myself when I move out and not for my “future husband.”

I need feminism because “it’s culture” is not an excuse to be misogynistic.

Critique of Intersectional Feminism:

Whilst intersectional feminism aims to unite all categories (or distinctions as they are often referred to) of a person’s identity and to recognise that individuals may often experience discrimination and disadvantage due to multiple co-existing factors (e.g. race, sexual orientation, religion, caste etc.) critiques of the theory argue that as the theory aims to be inclusive of multiple factors it loses sight of the specific circumstances and needs of certain groups. For example, if schools, workplaces and public offices are expected to have ramps to ensure they are wheelchair accessible for less-physically abled persons should they also all be equipped with braille and signing facilities to be inclusive or blind and deaf people who are clearly also less physically abled. This theory demonstrates how even within disadvantaged groups there will still be some people who are given a dominant position – e.g. those in wheelchairs for whom ramps are provided, and those who still suffer disadvantage, e.g. those who are blind or deaf and need braille or sign language facilities.

Some critics have therefore declared that redressing intersectional discrimination by accommodating everyone’s needs is unachievable. And some commentators have asked how, with only say 6 seats on a panel or 10 positions on a board of directors, can half of humanity, with all of its differences, ever be represented? Essentially the test comes with trying to be as inclusive as possible and being aware of the difference and trying to prevent forms of discrimination from affecting women’s equality of opportunity and equality of results.

Chapter Re-cap:

This chapter has sought to explain what feminist legal theory is by looking at the dominant first three generations of feminist legal theory, their understanding of women’s rights and where they are placed and understood in law. It also touches upon the legal enactments present that protect women’s rights.

General Overview:

The feminist legal theory is the analysis of law from a women’s rights based perspective which identifies the wide influence of male centric thought on various legal structures and shows how they affect the condition of women in society. It recognizes how laws may fail to render justice if they are interpreted in a non-gender-sensitive way, which will result in not being able to recognize and provide for women’s needs.
Women’s collective demands have evolved over time voicing the different needs different women have and how these could be accommodated within legal frameworks. As each dominant voice has evolved, it has also been labelled as a generation.
The three main generations of the feminist legal theory are equality feminism, difference feminism and intersectional feminism. Other forms of feminism include socialist feminism, black feminism, eco-feminism, post-structural feminism, and trans-feminism.
Even prior to the first generation of women’s legal theory, there was an active demand from women seeking rights from their governments, for instance, to vote on an equal basis with men.
The first generation of the feminist legal theory was also known as liberal feminism or equality feminism, whose primary aim was to put women on the same pedestal as men when it comes to rights within the workforce.
The second generation of the feminist legal theory was called difference feminism, which questioned the very basis that men and women were equal, which resulted in the articulation of the androcentric theory. This theory recognizes men and women as being equals but with physical differences which results in different sets of needs.
Difference feminism resulted in legal responses such as mandated maternity leave as postulated by the Maternity Benefit Act (1961) in India.
The third generation of feminist legal theory, intersectional feminism, recognizes that multiple factors can simultaneously intersect with one another and apply to one person, therefore, resulting in multiple forms of discrimination affecting that one person. It essentially recognizes that not all women are equal and distinctions such as race, ethnicity, literacy skills etc., could simultaneously apply, resulting in intersecting forms of discrimination.

Interesting Facts:

Each new generation of feminist theory aimed to build on the gaps remaining from the previous generation.
As people can have many identities simultaneously a theory of intersectionality emerged to try to link all excluded or poorly represented groups of women. For example, to be a woman of colour, to be unmarried and a mother, to have insecure immigration status, to being less physically abled, to having a psychological health issue, to be non-heterosexual, to be below the poverty line, to belong to a minority religion/caste/ethnic group. It’s almost impossible to have one theory that aims to uplift the social position of all women. This is where intersectional identities applies.

Glossary:

Glass ceiling: An imaginary ceiling that is invisible (i.e. made from glass) which prevents women from being able to progress to positions of power and management within a workforce. This is largely due to gender stereotypes that are pervasive in society which incorrectly believe women cannot be good managers/bosses/employers, or able to take difficult decisions and act quickly and assertively.
Gender pay-gap: The difference between wages paid to men and women for the same work. Currently the global averages within the formal workforce are for every $1 a man is paid a woman is paid $0.6-0.8 for the same job.
Assimilationist: In feminist studies this refers to women needing to assimilate to the male norm in order to succeed in accessing and benefitting from rights. Eg if women want to reach the highest positions of a workforce the more closely they can replicate ‘male’ behaviour, eg by working long hours, not becoming pregnant, not taking maternity or childcare time off work, not asking for flexible hours during school holidays etc the more successful they will be. This fails to recognise physical differences between men and women and to accommodate these.
Essentialising: Reducing all women, who have varied, multiple, and complex identities into one identity – eg all women are heterosexual and want to be married and have children.
‘The woman question’: Asking the ‘woman question’ is a strategy used by gender rights activists to ensure women’s needs are represented and accommodated in policies and laws. For example a famous American university recently published its requirements for faculty to get promotions. Previously it stated that you needed a certain number of publications over a certain period of time. This meant women were less likely to get promotions as if they had children they were unlikely to have as much time to dedicate to research and writing as the burden of childcare disproportionately lands on women. By asking ‘the woman question’ i.e. how would a woman’s life experience fit into these requirements they recognised women were less likely to be promoted because of this requirement. Now the university requires that a certain number of publications is required but that having a baby will count for one publication. This enables women to still be considered for promotions if they have one less publication than a man but had a baby and were the primary care giver. It helps to ensure women are not disproportionately discriminated against and less likely to reach positions of power and influence if they choose to have families. It enables women to enjoy motherhood and work.
Super remedy: An all-encompassing remedy to all the questions raised in a particular case.
Substantive equality: Substantive equality recognises that if you treat everyone the same way, when they may not be equal (e.g. socio-economic status, race, religion etc.) in real life the results are more likely to reinforce disadvantage than to achieve real, lived equality. Substantive equality is based on equality of opportunity – e.g. the ability to equally participate, and the equality of results – e.g. that all members of society are represented in education, in employment, and positions at decision making levels etc.

Equality of opportunity may require some special measures to be introduced, for example, if all children are required to submit documentation proving their identity exceptions should be made for children who do not have these documents – e.g. because of conflict, literacy of parents, a socio-economic status that made an institutional delivery inaccessible etc. Once participants are enrolled, and the opportunity to participate has been guaranteed there are no further guarantees of success.

Equality of results goes a step further and also requires equal representation in positions that may have otherwise been awarded based on merit. This is because it recognises that if you start from an unequal position even if you have access to the same benefit, e.g. education, you may not benefit and succeed as fully as people from dominant privileged groups (e.g. men from majoritarian religions/races/castes) but that your voice should still be represented. To achieve this positive measures such as quotas are often introduced. Eg, for SC/ST/OBC to university admissions, for women at panchayat elections etc.

Timeline:

1800s-1960s – The first generation of feminism (liberal or equality feminism) where women were asking for the same rights as men – see Sojourner Truth, the suffrage movements asking for the right to vote on an equal basis with men, basic employment rights.
1961 Maternity Benefit Act (India) comes into force.
1960s-1990s – The second generation of feminism (difference feminism) where women wanted the same rights as men and then additional protections as they are physically/biologically different and for their rights to be protected – e.g. the right to maternity leave from work and the right to return to the same job with the same level of responsibilities after having had time off.
1990s-today – the third generation of feminism (intersectional feminism) which recognizes complex identities and intersectional identities.
2000-today – ‘i-feminism,’ women demanding more autonomy and non-interference with their lifestyle choices and to be free from interference, pressure and/or judgment by society and the state. This could include but is not limited to choosing how many sexual partners to have concurrently or sequentially, access to abortion etc.

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