Ruth Houghton is a Graduate Teaching Assistant and PhD candidate at Durham Law School. She tweets at @ruth_houghton. Ruth is also a commentator on the Northern/Irish Feminist Judgments Project. This post is also posted at Human Rights in Ireland.
Launched in 2012, the Northern/Irish Feminist Judgments Project (@irishfjp) is led by Aoife O’Donoghue (Durham Law School), Julie McCandless (LSE Law) and Máiréad Enright (Kent Law School). A feminist judgments project writes the ‘missing feminist judgment’; it takes original decisions and rewrites them from a feminist perspective. Abiding to the strictures of precedent and custom that judges adhere to, the feminist judge shows how the law could have been interpreted or applied differently. This particular project builds on the work of the Canadian, Australian and English feminist judgments projects, and focuses specifically on the creation of identity in Ireland and Northern Ireland. The project will explore both jurisdictions, rewriting cases from both the Irish and Northern Irish courts. The Northern/Irish Feminist Judgments project explores the building of communities and the importance of diaspora for Irish identity as well as creating a space to explore the ways that Northern Irish and Irish identities have ‘affected, and defined themselves in relation to one another over time’.
First Drafting Workshop
On the 23rd October 2014, in Ulster University, five feminist judges presented their draft judgments to an interdisciplinary audience. The judges were free to choose the cases that they wanted to rewrite from a feminist perspective, which meant that there was a broad range of issues covered. From Irish constitutional law to vicarious liability for child sexual abuse, from employment law to public appointments and police powers and duties, these cases raised questions about community, identity, harm and the limitations of the legal systems. The cases that were discussed at this workshop were; In re White (Judge: Catherine O’Rourke), McGimpsey v Ireland (Judge: Aoife O’Donoghue), In re E (Judge: Colin Murray), O’Keefe v Hickey (Judge: Maeve O’Rourke) and Flynn v Power (Judge: Eoin Daly).
Interspersed between the cases, were panels from scholars and activists from a variety of disciplines. The project aims to engage with the particular social, political and sectarian context and so issues of religion, sexuality and abortion were discussed during the two-day’ workshop. Photographer and filmmaker Emma Campbell (@frecklescorp) shared her video, When they put their hands out like scales, which includes the words from the Hansard debate on abortion in the Northern Ireland Assembly on 20th June 2000. Listening to words from the debate highlighted the prevalence of religion within the political debate on abortion. The images of walkways, paths and finally images of the docks were used to demonstrate the journeys women in Ireland have to take to seek an abortion and ultimately the denied statehood of these women. The extent to which abortion effects the construction or deconstruction of women’s identities was highlighted in the short-film as an actor read aloud Mrs Carson’s statement from the debate in the Assembly, ‘they should not be made to feel like criminals having to hide their identities. Nor should they be ostracised by society.’ Leanne McCormick demonstrated the role of female sexuality in the creation of women’s identities. She displayed images from ‘douching’ advertisements and told of how women were represented within trial reports from the early 20th century following accusations of abortions, attempted terminations and infanticide.
The construction of the foreign subject
The theme of the first drafting workshop was the ‘Foreign Subject’. Ex-President of the United States of American, Bill Clinton was noted to have said that ‘the most urgent issue facing the world [is] that of identity’ (quoted by Marianne Elliott). The creation of identities in Ireland and Northern Ireland was the focus of the panels at the first drafting workshop. Scholars from history, sociological, English literature and law came together to discuss the effects of the social, geographical, political and religious contexts on the construction of Irish identities. One element of this identity creation was migration and more broadly, travel and movement. Louise Ryan argued that identity is relational; it is located within particular places and created by the different relations between people. She discussed the effect of migration to England on Irish identity, showing how the perception of Irish people in England effects the way individuals present their Irish-ness.
In particular, the panels were interested in the way more marginalised groups build identities or have identities imposed upon them. Throughout the workshop the term foreign was constantly conceptualised and reconceptualised, stretched and expanded, to include those groups of people who are considered ‘foreign’ because they do not fit within societies expectations. ‘Foreign’ could include migrants, religious identities, LGBT persons, or women. Marianne Elliot noted how the word for foreign and protestant in Irish is the same and Anne Mulhall from University College Dublin spoke on the representation of migrant and LGBT persons in campaign literature.
One of the questions that the project seeks to explore is the role of the judiciary in the creation of identities. In judicial decisions, identities are created and the case law acts as a permeant record of this identity. The McGimpsey v Ireland case is an interesting example of the way litigants are constructed by the courts. The McGimpsey brothers lived in Northern Ireland and were well-known political actors amongst unionist supporters, their political belief was a rejection of Irish jurisdiction over Northern Ireland. They took a case to the courts in the Republic of Ireland challenging the Anglo-Irish Agreement of 1985. Even though the brothers rejected Ireland’s territorial claims and unionists in general would have been disliked in the Republic, when the case was in the High Court in the Republic of Ireland, Barrington J described the litigants as being ‘patently sincere and serious people’. Emphasising the brothers’ good standing within the community and their public and civic lives, the court fashioned an ideal litigant. This raises the question whether a housewife could have brought the same case and received the same favourable treatment; a question that Aoife O’Donoghue considered in her feminist rewrite of the Irish Supreme Court judgment.
The interrelationship between questions of community and identity in Northern Ireland and Ireland is strong. The community in Northern Ireland meant Protestant and Catholic or Unionist and Nationalist. Marianne Elliot highlighted how these different community groups had very different oral histories, which are used to crystallise identities. The pervasiveness of this divide is seen by the nature of party politics, which draws a distinction between “unionist”, “nationalist” and “other”. Yet, Myrtle Hill, a historian at Queen’s University Belfast and Monica McWilliams from the Transitional Justice Institute, talked about and shared experiences of the women’s movement in Northern Ireland in the 1970s. They noted how the movement distanced itself from the political-party lines that were drawn and engaged in cross-community activism. More recently, the Northern Ireland Women’s Coalition created in 1996, also refused to align with one ideology and were designated as “other” within the Irish National Assembly.
Still, a reoccurring trend in the Northern Irish and Irish judgments was the construction of identity along political and sectarian lines, dividing the community into Protestants and Catholics or unionists and nationalists. In re White concerned the appointment of representatives to the Northern Ireland Parades Commission (overseeing the parades or marches that take place in Northern Ireland). Despite the fact that women took part in the parades and were affected by the parades that took place on their streets, in the original decision it was held that ‘representative of the community’ did not include representing women. Similarly, in the case of McGimpsey v Ireland the original judgment talks of majority and minority community (invoking the Protestant majority and the Catholic minority). There is no thought to those people who fell outside of these divides, in particular those people who were excluded by the community: in response to the 1978 draft Homosexual Offences (Northern Ireland) Order, the Democratic Unionist Party started a petition to “Save Ulster from Sodomy”.
The feminist judgments in the Northern/Irish Feminist Judgments Project demonstrate how these decisions could have been decided or reasoned differently to improve the place of women and minorities within society. Each judge had a different feminism and so had different methods of creating a feminist judgment. By placing women within the text of the judgment, by focusing on the specific gendered nature of the harm suffered, by telling the stories of the women involved or in the cases of In re White and McGimpsey v Ireland by reconceptualising ‘community’, the Northern/Irish Feminist Judgments Project is able to critique the original decisions. The Irish feminist judges are now challenging judicial decisions that had a negative effect on women and minority groups.
The Northern/Irish Feminist Judgments Project has been assisted by research from Zoe Carter and Eleanne Hussey (LSE) and Ellen Jepson from Gender and Law at Durham. Thank you to the University of Ulster, Transitional Justice Institute and Law School for hosting and supporting the first workshop.