Women and the Law: The Challenges of Achieving True Equality
Updated: Nov 24, 2020
Today, women in England have unprecedented opportunities and enjoy more rights than ever before thanks, in large part, to legal reform. In 1975, for example, the Sex Discrimination Act granted women freedom from prejudice relating to the procurement of goods, facilities, and services, and thus granted them the right to apply for credit or loans. Since 1982, women have had the right to be served in a pub and, as of 1990, they have been taxed independently of their husbands. Such reforms have been hugely significant in redefining women’s lives and experiences. However, in certain respects, the law continues to let women down, necessitating further reform.
In 2010, the Equality Act was introduced in order to consolidate existing legislation and offer further protection from discrimination. By classifying pregnancy and maternity as a “protected characteristic”, it promised to protect pregnant women and mothers from unfair treatment. However, according to the Equality and Human Rights Commission (EHRC), many women in this category continue to face discrimination in the workplace.
In a study by the Commission, 41 percent of mothers said that going back to work had a negative impact on their health, whilst 20 percent of women claimed to have received “harassment or negative comments related to pregnancy or flexible working from their employer and/or colleagues”. In certain cases, women also continue to experience unfair dismissal, contrary to this Act. The EHRC estimates that as many as 54,000 new mothers each year feel compelled to leave their jobs, either due to outright dismissal, compulsory redundancy, or poor treatment.
Many women also feel attacked at work by employers’ dress codes. Whilst many companies have revised their policies, some continue to make outdated demands on their female employees, such as wearing heels or dying their hair. Nicola Thorp’s account of being sent home from work by PricewaterhouseCoopers in 2016 for not wearing high heels prompted a petition which received 150,000 signatures.
In the parliamentary debate which followed, many similar stories were heard and a report by the Petitions and Women and Equalities Committees found that urgent action was required. However, the latest government guidance on dress codes remains vague, stating only that the “standards imposed [on men and women] should be equivalent” and “must not be a source of harassment”. The advice outlined in this document on how women can appeal discriminatory dress codes offers little reassurance. Without clear rules on dress codes, companies can easily maintain and defend unfair policies, limiting the petition’s progress. Speaking in an interview by the Evening Standard earlier this year, Baroness Hale, the former President of the Supreme Court, agreed that such dress codes are unfair and voiced her hopes for future reform: “Requiring neatness, tidiness, cleanliness is one thing, requiring a particular image is another”.
Whilst sexual violence is experienced by both men and women, statistics show that victims are overwhelmingly female. According to the charity Rape Crisis, 88 percent of the estimated 97,000 cases of rape or sexual assault each year are committed against women. Yet, these women have often felt ignored or neglected by the law.
The Sexual Offences Act 2003 originally referred to victims as “he”, following the custom of gender-neutral legislative writing. Although this has since been amended, the law still fails victims of sexual violence. It is estimated that only 15 percent of cases of sexual violence are reported to the police, the reasons for which are evident. For example, court proceedings often require victims to relive their experiences in graphic detail, subjecting them to personal criticism at the hands of the defence. Juries are easily swayed by these arguments, which often vilify the victims by maligning their character or casting their actions in an accusatory light.
Further debate is, therefore, necessary to decide the place of juries in such cases. At the very least they must be better educated on the various strategies used by the defence at trial and on their own cultural biases before proceedings begin. Similarly, where there is a lack of substantive evidence, efforts must be made to ensure a fair trial.
In recent weeks, the Crown Prosecution Service (CPS) undermined its previous guidance which specified that victims could not receive therapy during the trial period, now stating that “no one should be prevented from accessing therapy”. This is an important step which will hopefully lead the way for further measures in favour of victims such as: providing more information on what to expect from the trial process, protecting victims’ anonymity, and incorporating “special measures”, such as clearing the public gallery and offering vulnerable victims the ability to give evidence remotely.
For those victims who are brave enough to come forward, the results are often disappointing – in the year 2019-20 only 1.4 percent of reported rapes were charged and the conviction rate fell by a quarter to 1,439. Dame Vera Baird, the Victims’ Commissioner, has argued that what we are seeing is a “decriminalisation of rape” and has set out her hopes for reform in her annual report. In response to these statistics, the CPS has made assurances that efforts will be made to reduce the time between reporting a case and charging a suspect, thus minimising the amount of evidence lost and increasing the likelihood of a conviction, amongst other steps. Whether more expansive reform will be necessary remains to be seen.
Another area in which women are overlooked is the question of inheritance. Although most people now choose to split their estate equally between their children, gender continues to be the defining factor when it comes to hereditary peerages. Following the Succession to the Crown Act 2013 which established absolute primogeniture within the Royal Family, criticism of male primogeniture has become particularly ardent and a number of Private Members’ Bills have since been presented in the House of Lords, with little success.
As the Daughters’ Rights group argues, the inability of eldest daughters to succeed to peerages is particularly significant as it prevents them from serving in the House of Lords, where less than a third of all members are women. Since 1999, there have been only 92 seats for “excepted” hereditary peers. While admittedly this issue affects a very small proportion of the population as a question which relates to female rights and access to government positions it is certainly pertinent.
The practice of primogeniture is even protected in the Gender Recognition Act 2004, which offers transgender people the right to be legally recognised as their new gender. Section 16 of this Act specifically states that any newly “acquired” gender “does not affect the descent of any peerage or dignity or title or honour” which effectively means that even when an eldest daughter legally transitions to a man, he is still unable to inherit. Removing the gender-based biases of inheritance and abolishing primogeniture is a necessary reform if we are to make the law more egalitarian.
Women are not only the minority in the House of Lords, but also in wider government as well as the legal sector. In the House of Commons, although female membership is at a record high, only 34 percent of Members of Parliament are women. Similarly, only 37 percent of barristers are women. This is perhaps unsurprising given that these “self-employed” women have less employment protection. Although the Bar now requires chambers to have maternity leave policies, they are still free to shape these policies as they choose with some remaining discriminatory.
At the higher levels of this profession, gender disparity is even more apparent. Only 14 percent of Queens Counsel are women and there are currently only two female members of the Supreme Court. With more female members and employees, these sectors would better reflect the makeup of the population and the new perspectives these women bring may prompt further reform. As Helena Kennedy QC wrote in Misjustice: How British Law is Failing Women, “with increased numbers of women at every level in the law it would function differently” and such change could be the key to finally and fully emancipating British women.