Calibrating Women’s Equality: How Closely Should Courts Scrutinise Claims that Women’s Equality Should be Constitutionally Limited? Event
- Time:
- 12:30-14:00
- Date:
- 2024-11-06 00:00:00
- Venue:
Event details
Before evaluating whether women’s equality should be constitutionally limited, courts must decide how closely it will assess limitation arguments.
If the state argues it must impose income poverty on women to incentivize labour force participation, should the court accept this argument, or should it interrogate its veracity? Or if the state claims that excluding women from certain roles in the military is necessary to protect operational effectiveness should the court take this argument at face-value, or should it demand strongly persuasive evidence that this argument is true? Calibrating the intensity of the standard of review at the justification-stage dramatically shapes the outcome of women’s claims for equality. A light-touch standard of review correlates with courts permitting women’s equality rights to be justifiably limited whereas an intense standard tracks with courts refusing to limit women’s equality. Yet despite equality judgments that run hundreds of pages long, courts rarely openly engage with the degree of scrutiny to apply at the justification-stage. There is an extensive amount of theorising on the standard of review, most developed in context of human rights writ large, not within the specific context of women’s equality. This gap matters. Many of the doctrines that underpin the calibration exercise do not ring true for women’s constitutional right to equality and when these doctrines are used in practice, they are harnessed to ring-fence decisions to pursue policies that burden women’s equality from any degree of scrutiny. This presentation makes the case that the severity of women’s inequality in tandem with the fundamental importance of women’s legal right to equality requires courts to always undertake a searching of justification assessment when deciding whether breaches of women’s equality rights can be justified.
Speaker information
is a Reader in International Human Rights Law at the University of Birmingham specialising in women's equality rights particularly focusing on issues of poverty.