Over a decade ago, around a dinner table in Canada, a group of female academics discussed the law and the Canadian Supreme Court. The discussion turned to a number of equality cases that had come before the court. The court’s judgements had raised concerns among the academics about a more conservative, hardline attitude to claims of discrimination. Someone raised the suggestion: What if we all got together and rewrote the judgements ourselves?
The eventual culmination of this suggestion was a project, the Women’s Court of Canada, which resulted in six Canadian Supreme Court decisions being re-written to reflect a more feminist perspective. Since then, it has inspired similar projects in Australia, the UK and now Ireland.
The Irish project will see 27 Northern Irish and Irish cases rewritten to reflect a more feminist perspective, involving academics from across a range of UK and Irish universities. Ranging from cases involving contraception and abortion to a 1985 case that challenged the constitutionality of the Anglo-Irish Agreement, the project attempts to inject feminist thought into a number of significant court judgements that have helped define the legal landscape we know today.
It questions what we take as a neutral reading of law and rules and argues there are alternative, equally valid readings that take into account gender bias
Speaking to The University Times, Trinity Reid Professor of Criminal Law, Criminology and Penology, Senator Ivana Bacik, who is a commentator in the project, describes why it was so necessary: “It questions what we take as a neutral reading of law and rules and argues there are alternative, equally valid readings that take into account gender bias in the making and application of law.”
The Supreme Court and High Court, like most Irish institutions, have been traditionally dominated by men. While this is changing, and the current Chief Justice of the Supreme Court, Susan Denham, is a woman, Bacik notes that the “culture of the court, and the court generally, has always been very male, very masculine”.
For the project Bacik is working alongside Dublin City University’s (DCU) Dr Tanya Ní Mhuirthuile, who is rewriting Foy v An t-Ard Chláiritheoir. The 2007 case saw Dr Lydia Foy, a transgender woman, seek to have her birth certificate changed to reflect her chosen gender and helped lead to the new Gender Recognition Act last year. How would such a case be rewritten? “A feminist rewriting of the Foy case would take a different understanding of gender and of notions of gender”, Bacik says.
The idea behind the project might come as a surprise to members of the wider public who, if asked, might tell you that the law is something that is neutral and unbiased. While they might even mention notions of “justice” and “equality”, very few would even consider gender bias as an issue. According to one of the directors of the project, Dr Aoife O’Donoghue, a Professor in Durham University’s School of Law, even law students often “think that a judgement, once it’s written is sacrosanct, this is the only judgement that could arise on a set of facts”.
What is interesting about the project is that, even when rewriting the cases, the academics confined themselves to the legal structures and legal precedents already in existence. You’re not going to find a version of the X case from 1992 that creates a right to abortion in all situations, for instance. Speaking to The University Times, Assistant Professor in comparative law in Trinity, Dr David Prendergast, who is rewriting a case for the project, makes clear that a writer wouldn’t be allowed to “do something too heroic”.
“I wouldn’t be citing [feminist legal writer] Catherine McKinnon at the start of the article or anything or wouldn’t be using academic sources as if they were legal authorities”, he says.
The Irish Constitution is not a feminist document. Even if you didn’t want it to be a feminist document, if you wanted it to be a document based on equality of genders, it’s not that either
For all the project’s radicalism, there is a wonderfully legalistic dedication to working within the existing confines of Ireland’s constitutional rules. O’Donoghue emphasises the importance of recognising the “limitations” that come with the Irish Constitution: “The Irish Constitution is not a feminist document. It’s not. Even if you didn’t want it to be a feminist document, if you wanted it to be a document based on equality of genders, it’s not that either.”
Arguably, the project’s book, which will be published in January, could not have come at a better time in Ireland. As the momentum grows behind the campaign for a referendum on the eighth amendment, a feminist rewriting of court judgements seems more necessary than ever. In Northern Ireland too, from which judgements were also rewritten, issues like marriage equality and legalisation of abortion are gaining momentum.
These new judgements are providing alternative arguments and interpretations that O’Donoghue hopes will help inform future legal activism: “We think it’s important to set out an alternative feminist constitutional idea, while accepting that the Irish Constitution is never going to be an ideal of feminism in its current form. There are limitations there, and they are always going to be there until there’s fundamental changes.”
Pointing to the rewriting of the X case by Trinity graduate Dr Ruth Fletcher, from the School of Law in Queen Mary University, London, O’Donoghue says the new judgement “would be a significant addition to our understanding of the Irish Constitution”, while working “within the limits of the eighth amendment”.
As the Citizens’ Assembly sits down to discuss issues like a referendum on the eighth amendment, I ask O’Donoghue if she would like to see their book as required reading for the assembly’s members. “That would be fantastic”, she says. Taken together, the cases “create a tapestry” that capture how the history of judicial decision-making within the courts “tend towards a very conservative interpretation of what is allowed and not allowed under the constitution”.
There is a sense in which you are the authority, so you can develop a new principle or a new law consistent with what’s gone before, and you don’t necessarily ground it all the way down to first principles
One of the biggest challenges for the writers was leaving behind the footnotes, citations and general style of academic writing. “It was both liberating in one sense but also very daunting in another sense. The liberating part of it was unlike the academic experience where almost nothing you say can just come from you, it always has to be grounded in argumentation”, Prendergast says, “in terms of sitting as a judge, there is a sense in which you are the authority, so you can develop a new principle or a new law consistent with what’s gone before, and you don’t necessarily ground it all the way down to first principles”.
Writing these judgements, often years later than the original, is a very different experience to having to pen the original decision, however. As Prendergast says: “The academics have the luxury of the ivory tower, where it’s an intellectual exercise.” Judges, no matter what you think of their decision, face a much more difficult job when a case comes before them.
The Supreme Court case rewritten by Prendergast, CC v Ireland, is famed for leading to statutory rape between a minor and an adult being declared unconstitutional, causing widespread controversy in 2006. Despite fundamentally disagreeing with the reasoning behind the judgement, the project has given Prendergast a renewed sympathy for judges: “In the real world, these judges had a very different scenario than us. They had time pressures, they had real people’s lives depending on it.”
The project will not end soon, O’Donoghue says. It has already engaged numerous artists, and the poet Sarah Clancy has written a poem for the new book. With plans for walking tours of Dublin and Belfast in famous spots connected to the original judgements, as well as student workshops across Ireland, the project should extend well beyond the world of academia. O’Donoghue is optimistic: “The enthusiasm we had at the beginning, that we really wanted to do all those things, has only really become stronger as we started building up together.”
