The fulflment of rural women's land tenure rights and whether these rights are (1) legally recognisable, (2) socially recognisable or (3) enforceable by external authorities is a key issue in protecting rural women's economic and social independence. At the moment, though, it seems that there are problems in accomplishing and securing rural women's land tenure rights. Since the land tenure system is a crucial institution in defning an individual's socio-economic status and opportunities in rural China, it impacts not only women's bargaining power but also their social security, economic well-being and independence.

Between the 1980s and mid-1990s, gender bias was explicit in the implementation of land tenure policies and population control, especially in rural China. Since then, explicit gender bias has been reduced, refecting China's goals of modernisation. However, the policies are still not gender-neutral in their implementation. Women are more likely to become "landless" at some point in their lives. The greatest threat follows marriage, divorce or if they become widowed. The lack of recognition of women's land use rights deprives women of their chances of survival in rural China. Even though both men and women face diffculties in rural areas due to the land tenure system, the system has failed to protect the latter.

Although a written land tenure contract and a land use certifcate are two of the most important documents that secure rural women's economic situation and land use rights in the case of expropriation, there are other key factors that contribute to the actualisation of rural women's land rights. To enhance women's ability to claim and keep control of their land, one aspect needs attention: reducing gender bias in village land tenure contracting practices and in village council rulings. Although women's rights to land in the People's Republic of China have, in theory, always been equal to those of men, the household tenure contracting and male dominance in decision-making have created a situation in which practices exist that do not involve rural women, their well-being or their equal treatment. This practice is (ab)use of power, which society enables. As was pointed out in the introduction to this chapter, the legal and social acceptance of a land tenure contract is vital for the empowerment of rural women.

It is also important to acknowledge that rural Chinese women form a distinct and signifcant group that needs to be addressed as such, and that rural women in China face discrimination in land-rights situations. The discrimination, however, is part of a deep-rooted gender discrimination spectrum refected not just in rural areas but throughout Chinese society.

The implementation of relevant legislation should focus on rural women's rights to access, use and control land. Social factors and a lack of guidance prevent rural women from obtaining secure rights to land. It is crucial to ensure that legislation and land reform policies are gender-responsive and consider rural women's historically disadvantaged socio-economic position compared to rural men. Furthermore, an environment that encourages rural women's increased participation in (political) decisionmaking, such as village committees, should be created and maintained.

Since women make up half of the world's population, research and analysis on women is critical in understanding many forms of social stratifcation. Women undoubtedly face unique disadvantages and social problems because of their gender. Trends and changes in women's lives and the obstacles that women face in improving and securing their own rights are worthy of research, documentation and analysis.

#### Notes

#### References

Hill Collins, P., & Bilge, S. (2020). *Intersectionality* (2nd ed.). Polity.

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/ by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# One Step Forward, Two Steps Back: An Analysis of Turkey's Implementation of the Istanbul Convention in Addressing Gender-Based Domestic Violence

*Gizem Guney*

#### 7.1 Introduction

Turkey holds a special importance in terms of its implementation of the Council of Europe Preventing and Combatting Violence against Women including Domestic Violence (the Istanbul Convention, 2014), since it was the frst country that signed and ratifed it. The representatives of Turkey took an active part during the drafting process of the Convention, whose efforts considerably contributed to the fnal text of the Convention. Turkey, on the other hand, decided to withdraw from the Convention with a presidential decree after six years of its ratifcation in March 2021. This move has sparked concerns about the future of the Convention in Europe, and it caused heavy criticism in both the domestic and international arena (Council of Europe, 2021; Bengisu, 2021; Stanimirova, 2021).

G. Guney (\*)

University of Portsmouth, Portsmouth, UK e-mail<EMAIL_ADDRESS>
© The Author(s) 2022 133

G. Guney et al. (eds.), *Towards Gender Equality in Law*, https://doi.org/10.1007/978-3-030-98072-6\_7

In looking at the reasons put forward by the Turkish government in this withdrawal decision, it can be said that there were two main critiques against the Convention. First, it was argued that the Convention was challenging traditional family structures and therefore was harmful to the family unity.  These concerns were constantly expressed by conservative NGOs in Turkey since the ratifcation of the Convention and were echoed in some other Central-Eastern European countries, including Poland, Croatia, Bulgaria, Hungary, Lithuania and Slovakia. However, at the time of writing, Turkey was the frst and only country who offcially declared a withdrawal.

The focus of this chapter is neither on the withdrawal reasons nor on the question whether these reasons have legal validity. This chapter rather focuses on legal and political steps taken by Turkey in the period between the ratifcation and the withdrawal. In doing this, the chapter specifcally focuses on the steps taken to address gender-based domestic violence against women. It is believed that the real reason for Turkey's abandonment of the Istanbul Convention can be discovered by looking at how Turkey has treated the Istanbul Convention from the beginning up to the point of withdrawal. This chapter argues that the withdrawal decision should not be taken as a surprise considering that, although Turkey has adopted a novel and progressive law in addressing violence against women, it has failed to recognise gender equality in its other policies. As the promotion of gender equality is one of the most prominent obligations that the Convention imposes on the states, Turkey was already failing to meet the obligations imposed by the Istanbul Convention and therefore was not committed to effectively implement the Convention.

#### 7.2 The Istanbul Convention in a Nutshell

The Convention on Preventing and Combating Violence against Women and Domestic Violence was adopted in 2011 in Istanbul and entered into force on 1 August 2014. Following the tradition of the Council of Europe requiring treaties to be referred to by the name of city in which they were opened for signature, the Convention is commonly called the "Istanbul Convention" (Acar, 2014). The Istanbul Convention is a signifcant development on behalf of women victims of violence on the grounds of its unique and progressive features. It is the frst legally binding instrument within Europe specifcally aimed at combating violence against women, including domestic violence (Sainz-Pardo, 2014), and second in the world after the Organization of American States' Convention of Belem do Para (1995).

Thanks to its specifc focus on gender-based forms of violence against women, the Convention provides the most comprehensive and holistic set of measures in the world that a state can adopt in order to address all forms of violence against women (Stanley & Devaney, 2017). In doing this, it involves a wide range of actors in the fght against violence, including law enforcement bodies, members of the judiciary, non-governmental organisations, the private sector and the media (Alwood, 2016). Furthermore, it requires states to establish institutions (Art 10(1)) that ensure that these actors work in co-ordination with each other through a holistic anti-violence policy (Art 7(1)). The Convention imposes state responsibilities through a 4Ps approach in a similar vein to the other recent conventions within the Council of Europe, that is, the (P)revention of violence, the (P)rotection of victims, the (P)rosecution of perpetrators and the adoption of gender-sensitive (P)olicies. Under each of these (P) pillars, the Convention brings detailed and multidimensional responsibilities to be fulflled by the state parties.

The Istanbul Convention has been signed by 45 out of 47 member states of the Council of Europe and ratifed by 33 of them as of the time of writing. It is also important to note that the Istanbul Convention has been signed by the European Union in 2017, and this can be considered as an indicator of the widely acknowledged nature of the Istanbul Convention at a European level. For these and more reasons, many scholars, journalists and human rights practitioners have described the adoption of the Istanbul Convention as a milestone development and a "defning moment" in the struggle against violence against women (Human Rights Watch, 2014; Simonovic, 2014; Amnesty International, 2011; Meyersfeld, 2012).

### 7.3 The Picture of Gender-Based Domestic Violence Against Women in Turkey and Turkish Law: Pre- and Post-Ratification of the Istanbul Convention

Following the ratifcation of the Convention, the Turkish government made several statements underlining the way in which the Istanbul Convention was being taken seriously by the state, specifcally since it had been the frst signatory and ratifying country among all Council of Europe member states (Tok, 2017). In contrary to these political promises of the government, however, we can observe increasing media coverage on the incidence of domestic violence against women (Boyacıoğlu, 2016)1 and on state offcials' controversial declarations on gender equality in general. At the same time, Turkey did enact a new law and developed new policies in order to comply with the provisions of the Istanbul Convention aiming to eliminate violence against women (the *6284 numbered Law on the Protection of Family and Prevention of Violence against Women (hereinafter 6284 Law)*, *2012*). At the face of this clash between Turkey's legal promises and the concerning number of gender-based violence incidents occurring, Turkey presents an interesting case study. Considering that the Turkish Constitution openly supersedes international agreements on human rights and individual freedoms over the Turkish laws in the case of an incompatibility between them (Art 90 of *the 2709 Numbered Constitution of Turkish Republic, 1982*), to analyse the legal steps taken as a consequence to the ratifcation of the Istanbul Convention becomes vital.

Turkey presents a unique case study for one other reason too. Turkey has always remained in the double bind between its modernised Western laws on the one hand and its own eastern-originated culture and traditions on the other, and women's rights have been one of the issues that have been affected most from this tension. In fact, with the foundation of the Turkish Republic, the country has found itself in a rapid modernisation process leading to a secular Western legal framework prevailing over the non-secular laws and eastern and Muslim identity of its predecessor, the Ottoman Empire (Silverstein, 2003; Gökariksel & Gündoğdu, 2007).2 This separates Turkey from many of the other state parties to the Istanbul Convention.3 While conducting analysis on Turkey, it is important to take these unique cultural dynamics of the country into consideration.

Unsurprisingly, Turkey is not an exception to the outrageous prevalence of gender-based domestic violence against women, perpetrated by their male partners all over the world (WHO, 2017).4 Again, in a parallel vein to the global picture of the issue, women are predominantly the victims of domestic violence in Turkey (Akın, 2013).5 Becoming aware of the disproportionate effects of domestic violence on women took long in Turkey, since up until quite recently there had been neither comprehensive research in the feld nor the collection of data with regards to the problem. There are two far-reaching studies presenting the qualitative data on the rates, types and reasons for domestic violence against women across the whole country, which were conducted in 2008 and 2014 (Hacettepe University Institute of Population Studies, 2009, 2014). According to the study of 2014, in Turkey, 36% of women are subject to physical violence, 12% to sexual violence, 38% to both sexual and physical violence, 44% to emotional violence, and 30% to economic violence from their husbands, male partners or ex-partners. On the basis of research analysing the rates of domestic violence against women across the European Union countries, the average of all European women suffering from male partner violence is 22% (EU Agency for Fundamental Rights, 2014). Therefore, the rate of domestic violence against women in Turkey supersedes the one in Europe.

Turkey is also familiar with gendered practices stemming from its own traditional and cultural values, such as arranged marriages, marriages following elope, polygamy and religious marriages, which are increasing the risk of domestic violence against women, unlike many European countries (Boyacıoğlu, 2016). In fact, within these practices, women lose the agency to take decisions and therefore become more restricted within family structures. These practices originate primarily from the *honour culture* that is dominant within the country and which promotes the patriarchal structure. Men are perceived as the protector of family honour, thus having control on the sexual behaviours of women. When women act in contrast to those structures, men are perceived to be entitled to react in violent manners (Boyacıoğlu, 2016). Comparing the data collected in 2014 and 2008, we cannot reach the conclusion that the rates of domestic violence have increased during the last decade. However, it is evident in this comparison that the type of male violence that women have been subjected to is more violent and harmful than before. At this point, it should be reiterated that these two analyses cannot be taken as the mere basis of information, since there are various other surveys pointing out different amounts of gender-based domestic violence in Turkey, sometimes in far higher levels (Akın, 2013; Harcar et al., 2008).

Before the ratifcation of the Istanbul Convention, Turkey had been exposed to various criticisms from the CEDAW Committee (the monitoring body of the *UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1981*) with regards to its regulations on gender-based domestic violence. The CEDAW Committee (2005, 2010) consistently criticised Turkey on the grounds that the patriarchal attitudes and deep-rooted traditional and cultural stereotypes regarding the roles and responsibilities of women were pervasive, and these behaviours contributed to the perpetuation of violence against women. It was also underlined that no suffcient protection services such as shelters for battered women had been provided (CEDAW Committee, 2005), and that discriminatory provisions against women were still present within the legal framework (CEDAW Committee, 2010). It is noteworthy to mention that in its last state report, the CEDAW Committee expressed its concerns on the potential negative effects of the policies developed following the attempted coup on women's rights, and the rise of patriarchal attitudes within state authorities and society (CEDAW Committee, 2016). It particularly underlined discriminatory and offensive statements made by high-level representatives of the government against women who did not adhere to the stereotypical traditional roles (CEDAW Committee, 2016). It should also be noted that Turkey was ranked as 131st among 144 states in terms of gender equality in the survey conducted by the World Economic Forum (2017).

Following the ratifcation of the Istanbul Convention, as mentioned above, Turkey adopted the 6284 Law in 2012 in order to comply with its obligations imposed by the Convention. It is a common practice that a particular international human rights law instrument on which a Turkish law is based upon is referred in the explanatory report of that domestic law (Uğur, 2009). However, it is interesting that the Istanbul Convention is cited as the basis for the 6284 Law within the law itself (Art 1). Therefore, it is beyond doubt that the 6284 Law was adopted as the main tool to be used for the effective implementation of the Istanbul Convention in the Turkish context. For this reason, the next section focuses on the 6284 Law and analyses the steps taken by the Turkish government therein to address gender-based domestic violence.

#### 7.4 The 6284 Law: A New Ray of Hope to Address Gender-Based Domestic Violence?

The 6284 Law has improved the legal framework concerning genderbased domestic violence in Turkey in three distinct ways. First of all, it brought a woman-centred approach in addressing gender-based violence for the frst time as required by the Istanbul Convention. Before the 6284 Law came into force, the 4320 Numbered Law (*The Law on the Protection of Family (hereinafter 4320 Law), 1998*) was the primary law applicable to domestic violence cases. Enacted in 1998 and abolished by the 6284 Law, the 4320 Law was a law devoted to all form of violence within family, and it was the frst legal instrument in this regard in Turkey. Those protected within the scope of this law were determined as "one of the married partners, children or the other family members living in the same residence" (Art 1), and in the rest of the law no specifc attention on women was given at any point. In other words, this law took a gender-neutral path towards violence that occurs in an intimate setting. Considering the disproportionate and gendered impacts of domestic violence on women, this gender-insensitive approach was problematic and had been subject to critiques.

In 6284 Law, on the other hand, there is no provision explicitly declaring that women victims of violence, including domestic violence, are a central concern of the legislation. However, it is evident in the title of the law, which is 'the law on the protection of family and prevention of violence against women,' that when violence is at stake, it is women whom the law primarily aims to protect. Furthermore, the 6284 Law makes it clear that its purpose is to protect four groups of people, women, children, family members and the victims of stalking, who are subjected to violence or potentially at risk of being subjected to violence (Art 1).

 In other words, women are protected outside the realm of family or domestic violence and are protected under any circumstance. Children are granted the same protection as women. However, men can beneft from the protection of the law only if they legally identify as family members or the victims of stalking who are subjected to or under the risk of being subjected to violence. Therefore, it could be easily argued that women are ensured a broader and more explicit protection from violence within the framework of the 6284 Law. In this context, it is clear that the 6284 Law is far more progressive than the previous 4320 Law due its prioritisation of women's protection.

Secondly, the 6284 Law broadens application and scope of legal protection when compared to the former 4320 Law. During the time when the previous 4320 Law was in force, whether women having an *imam* marriage, women cohabiting with their partners without any form of marriage or divorced, women were entitled to protection from violence had been contentious (Kırbas-Canikog ̧ ̆lu, 2015; Uğur, 2009). *Imam marriage* is a type of religious marriage conducted by an *imam* (the name of the religious priest in Islam) and is not recognised as a marriage before the law and offcial bodies in Turkey. However, such a marriage is still a common religious ritual in the country. The 4320 Law required women to be offcially married in order to be included within the protection scope (Art 1). Even though in 2007, the 4320 Law was amended to broaden the scope of the protection and to remove the requirement that family members had to be living together in order to be protected, the requirement of "offcial marriage" was nevertheless kept for the victims of violence. In the application of the law, there had been inconsistency in the protection of such women; while in some cases protection orders were issued for women cohabiting with their partners without marriage or *imam* marriage, or divorced women, in others, the injunction was rejected (Karınca, 2008).

However, in the 6284 Law, although the domestic violence defnition does not include "former or current spouses or partners", as contained in the defnition of the Convention, there is a consensus in the literature that the 6284 Law applies to all partners, regardless of their marital status. Thus, it includes couples married solely by an *imam*, those who live together outside marriage, and even ex-partners (Kırbas-Canikog ̧ ̆lu, 2015; Uğur, 2009). In fact, the Justice Commission confrmed this approach in its report that the main purpose of the law is the protection of women from any type of violence; whether or not the marriage is conducted through offcial or in other ways or, whether or not there is any declared commitment to marriage between partners, women are going to be protected from violence within the borders of the 6284 Law. It can, therefore, be argued that Turkey took a positive step with its adoption of the 6284 Law on inclusion of women who are not offcially married, even though the Law does not explicitly include the words of "former or current spouses or *partners*".

Thirdly, in accordance with the Convention, the 6284 Law provides a wide array of preventive and protective orders. The Istanbul Convention requires state parties to strike a fair balance between their criminal and special civil law measures while addressing domestic violence. In other words, the Convention does not only oblige states to criminalise domestic violence, it also explicitly imposes an obligation to ensure special civil law measures including emergency barring orders (Art 52), and restriction and protection orders. In looking at the 6284 Law, it can be seen that this law is predominantly devoted to the regulation of these orders and authorises the family courts to issue such orders, when women are subjected to violence or are at risk of being subjected to violence (Arts 3, 4, 5).

These orders have been categorised under two different titles, as prevention orders and protection orders. The protection orders include providing suitable accommodation for victims and their children (Art 3(1) (a)), provisional fnancial assistance (Art 3(1)(b)), guidance and counselling on psychological, occupational and legal matters (Art 3(1)(c)), changing the victim's workplace (Art 4(a)), locating a separate settlement than the family settlement, if the victim is married to or cohabiting with the abuser (Art 4(b)), and changing the identity documents of the victim when necessary (Art 4(d)). The prevention orders, on the other hand, include the prevention of the perpetrator to humiliate and insult victim in words or behaviour (Art 5(1)(a)), immediate removal of the perpetrator from the settlement of the victim (Art 5(1)(b)), prohibiting the perpetrator to approach the settlement, school or workplace of the victim (Art 5(1)(c)), restriction on the relationship between children and perpetrator (Art 5(1)(ç)), prohibiting the perpetrator to disturb victim through communication instruments (Art 5(1)(f)), treatment for perpetrator if he is an alcohol or drug addict in a health centre and so on (Art 5(1)(h)). Thus, it becomes clear that the 6284 Law provides a comprehensive array of prevention and protection orders in line with the Convention's requirements. It is important that GREVIO, the monitoring body of the Istanbul Convention, expressed its appreciation in this regard in its frst evaluation report on Turkey (GREVIO, 2018, para 296).

In the light of the analysis of the 6284 Law that was specifcally enacted to implement the Convention, Turkey has taken progressive steps to improve its measures to address gender-based violence against women including domestic violence. These measures included bringing a more woman-centred approach towards violence against women, including more women into the scope of protection regardless of their offcial marital status and adopting comprehensive civil measures. This demonstrates that the impact of the Istanbul Convention has been wide, on taking all these measures in such a short time. In the next parts of the chapter, I will demonstrate how Turkish government deployed problematic policies towards gender equality despite all these positive developments in the special context of gender-based violence. Before doing this, the equality approach of the Istanbul Convention should be unpacked.

#### 7.5 The Istanbul Convention and Its Approach to Equality

The Convention, in its entirety, is established on the understanding that gender-based violence against women and the inequality of women are two issues that are strictly related to each other through an organic and structural link (Guney, 2020). Therefore, it is not possible to address one (gender-based violence against women) without responding to the other (gender inequality against women) and vice versa (Alwood, 2016). To put it differently, the Convention confrms that violence and inequality are two phenomena that protect and promote each other in a vicious cycle. For this reason, it explicitly recognises all forms of violence against women as a form of discrimination against women (Art 3(a)). For the drafters, gender-based violence is simply a structural problem that stems from historical power inequalities between women and men (Peroni, 2016). In fact, the drafters confrmed in the preamble that women and girls were exposed to a higher risk of gender-based violence than men. By confrming the structural and gendered nature of violence, the preamble makes it clear that the realisation of *de jure* and *de facto* equality is the key element in the prevention of violence against women.

It is *de facto* equality that the Convention particularly emphasises in eliminating violence. As the Convention considers gender inequality as the main reason of gender-based violence, it obliges states to address not only legal but also socio-economic and cultural inequalities that women suffer from. For this reason, as a signifcant step, the Convention requires state parties to condemn all forms of discrimination against women, *whether or not related to violence against women*. In Article 1, the Convention proposes two separate but interrelated aims. While one is the eradication of violence against women, the other one is the "contribution to the elimination of all forms of discrimination against women and promotion of substantive equality between women and men, by empowering women". As the Convention obliges states to provide equality beyond the violence context, it is argued that the Istanbul Convention has a dual character in being both an anti-discrimination and anti-violence instrument (Acar, 2017).

The purpose of the Convention, "to contribute to substantive equality between women and men, including by empowering women", needs to be highlighted (Art 1). The Convention's reference to substantive equality implies that such equality does not consist only of formal equality, and thus the eradication of direct discrimination would not satisfy the expectations of the Convention. In Article 4, the Convention enumerates the legal and other measures to be taken for this purpose, namely that of providing the right to equality in national laws, the abolishment of discriminative laws and the prohibition of discrimination through effective sanctions. All these measures refer to a rather formal, namely *de jure*, equality understanding (Facio & Morgan, 2009). However, through the requirement of the "practical realisation" of these legislative measures, the Convention points out that, unless states' laws and their application result in equality in a practical sense on behalf of women, the equality would not be achieved in its substantial terms. This refers to substantive equality (Saksena, 2007) and is directly borrowed from CEDAW.6

In providing this *de facto* equality, one essential responsibility that the Convention imposes on states is "to promote changes in the social and cultural patterns of the behaviour of women and men" that are based on the idea of the inferiority of women (Art 12(1)). The drafters explained this provision by arguing that present behaviour patterns of women and men are often shaped by prejudices, stereotypes and gender-based customs or traditions, and unless the states actively attempt to change such mentalities and attitudes, it would not be possible to prevent gender-based violence against women (Explanatory Report, 2011, para 85). In the same article, the Convention ensures that states cannot invoke culture, religion, tradition or the so-called honour as justifcation for any acts of violence within its scope (Art 12(5)).

It can be seen in these regulations that the Istanbul Convention holds a frm stance against any potential cultural or traditional arguments which could be harmful to women and women's equality. In the next part, Turkey's approaches towards women's equality and its interpretation of culture in the context of violence against women will be discussed.

#### 7.6 A Cultural Uprising: A Threat to Women's Equality

As explained above, the Istanbul Convention, in its own wording, requires states to promote changes in the social and cultural patterns of behaviour of women and men, in a way that eradicates the customs and traditions leading to the subordination of women. In the respective article, states are obliged not only to take legal measures to this end but also to take all measures beyond law that could be effective (Art 12(2)). This aspect of the Convention is particularly vital considering the unique cultural position of Turkey and its recent gender policies.

Turkey's attitude on culture and its relation to women's equality seems more concerning than ever been before, on both legal and political grounds. Particularly in last few years, the controversial statements of public offcials serving to strengthening the gender roles of women on traditional grounds, and therefore endangering women's equality, are broadly being refected in the media. These examples include, but are not limited to, the then health minister's declaration that the only career for women can be the motherhood; the then prime minister Erdoğan's statement that women are half women if they are not mothers, because of working; one minister's argument that Turkish women are the accessory of their house and the honour of their husbands; and the then deputy prime minister's claim that women's laughing loudly in public space is equivalent to unchastity, and so on. This situation was subjected to the criticism of the CEDAW Committee in its last report of Turkey:

[The persistence of deep-rooted discriminatory stereotypes against women] overemphasise the traditional roles and responsibilities of women as mothers and wives, thereby (…) constituting an underlying cause of gender-based violence against women. The Committee also notes with concern that highlevel representatives of government have, on several occasions, made discriminatory and demeaning statements about women who do not adhere to traditional roles. (CEDAW Committee, 2016)

The same issue was also criticised by GREVIO, the monitoring body of the Istanbul Convention, in its frst Turkey report which argued that public statements of statesmen and leading public professionals that blamed women victims of violence had amounted to hate speech in some instances and called these speeches "disquieting" considering the opinion-shaping role of these individuals (GREVIO, 2018, para 104).

As complementary to this part of the Convention requiring the dismissal of traditions that are harmful to women, the Convention has another subsection requiring states to ensure that culture, custom, religion, tradition or the so-called honour shall not be considered as justifcation for any acts of violence (Art 12(5)). The Convention also asks states to ensure that any of these factors shall not be regarded as justifcation in criminal proceedings (Art 42(1)). This is a very crucial part of the Convention since one of the most prominent types of violence against women in Turkey is custom (*töre*) murders and honour (*namus*) killings.7 In fact, in the cases of women getting married or having a romantic relationship without permission of their family, losing their virginity in extramarital relationships, being raped and so on, women are being murdered by males in their families, such as their brothers, fathers, husbands or exhusbands (Karınca, 2011). In some circumstances, women are murdered on the basis of honour, due to their dressing styles, talking to foreign men or wanting to divorce their partners (Karınca, 2011). Looking at the Turkish legal framework in this regard, in the previous Turkish Criminal Law, *namus* (honour) and *töre* (custom) were considered as a reason for the application of unjust provocation, and therefore the perpetrators were issued a reduced sentence (*The 765 Numbered Turkish Criminal Law (abrogated), 1926*). However, in 2005 the law was amended to exclude *töre* (custom) as a legitimate reason for unjust provocation. In contrast, this amendment required the perpetrator to receive an increased sentence (*The 5234 Numbered Turkish Criminal Law, 2004*).

Although this amendment made in 2004 is a positive development in accordance with the respective provisions of the Istanbul Convention, it needs to be highlighted that the new law does not refer to *namus* (honour) as a forbidden ground for unjust provocation. It only refers to *töre cinayetleri* (custom murders [direct translation]). It is important to underline that custom and honour killings in the Turkish context hold differences. *Töre cinayeti* (custom murder) refers to the case in which a family council decides on the killing of the woman who arguably dishonoured the family due to her inappropriate sexual or non-sexual behaviours, and one male member of the family is selected to execute the murder. This tradition is particularly unique to the eastern part of the country.8 *Namus cinayetleri* (honour killings) are, however, the murders of women due to the personal interpretation of honour of the males and does not require the involvement of a family council or anything as such. In other words, these murders are being prosecuted on a wider spectrum of honour-related reasons, and they are murders having an individual character (Karınca, 2011). Considering that honour killings are one of the most prominent types of domestic violence against women, the failure of the Turkish law to include honour as a forbidden ground for the unjust provocation is concerning in terms of Turkey's compliance with the Istanbul Convention (Akbulut, 2014). What is more concerning is that, as noted by GREVIO, the unjust provocation is still being considered as applicable to honour killings before Turkish courts (GREVIO, 2018, para 254). In this regard, "honour" arises as a loophole that the government, law enforcers and judiciary can fll by grounding it on cultural factors, in line with their own political desire to suppress women.

Besides controversial political statements and judicial interpretations, chastity, religion and traditions also formed ground for some controversial attempts of legal reform such as prohibiting abortion and re-criminalising adultery. The recent law authorising *imams* to legally validate the marriage is another example. These legal steps are in contradiction with the earlier era, when progressive legal reforms took place to annul some laws having discriminatory effects on women, as a result of strong women lobbying and feminist movements. For example, in the 1990s, the provision binding women's work to the permission of their husband was abolished by the Constitutional Court. By 1997, women were allowed to offcially use their maiden name and the husband's surname together, and, by 1998, the adultery of women was decriminalised. Yet, the most essential and holistic change among these was the mass of amendments to both Criminal and Civil Law by the beginning of the 2000s, so as to abolish the inequality between women and men in family structures and to perceive the sexuality of women as a part of their personal integrity, rather than a component of morality and family order (Altınay & Arat, 2008).

In the light of these, the Turkish government seems to have been jeopardising women's equality in its policies, and it has been doing this by relying on the so-called cultural, traditional and religious norms and values. As revealed above, this has been confrmed by the CEDAW Committee in its recent country report. This constitutes an example for how *culture* can be instrumentalised by a state to imperil women's social and political equality, bodily integrity and freedom. As confrmed by GREVIO, these practices are in stark contradiction with the spirit of the Convention as well as its specifc provisions on women's equality explained above.

#### 7.7 Conclusion

Turkey has been the frst state to withdraw from the Istanbul Convention with a recent presidential decree. Instead of analysing the reasoning behind this withdrawal and its legal validity, this chapter studied the legal and political steps taken by the Turkish government in addressing genderbased domestic violence between its ratifcation of the Convention and withdrawal from it.

The chapter demonstrated that, in implementing the Convention, Turkey took effective steps by adopting the 6284 Law which provided a more effcient response to gender-based domestic violence. In this law, Turkey took a woman-centred approach in its legal measures for domestic violence, it included more women into protection scope compared to its previous laws (by including women who are not offcially married), and it guaranteed a wide range of prevention and protection orders to the extent that it was never done before and the Convention's requirements were fully satisfed.

Alongside these developments, however, as this chapter has demonstrated, the Turkish government took legal and political initiatives which seriously jeopardised women's equality, and it did this by relying on the so-called cultural and traditional norms of the country. To put it differently, it became visible that on the one hand the government enacted a very new law specifcally devoted to tackling violence against women (the 6284 Law) through promising features and on the other it took legal and political steps endangering women's both *de facto* and *de jure* equality.

This signifed a worrying turn in terms of the effective implementation of the Istanbul Convention. As explained above, the concept of violence and women's inequality are conceptualised as two sides of the same coin in the Istanbul Convention. For this reason, the Istanbul Convention made it clear that, without empowering women from all aspects, including legal, the elimination of violence was an impossible project. However, Turkey egregiously failed to establish this link between women's equality and eliminating violence against women, threatened the former and, therefore, failed to implement the Convention effectively altogether.

This makes it clear that Turkey's sincerity in its political commitment to address gender-based domestic violence was suspicious from the beginning. This tells a lot about Turkey's withdrawal decision, regardless of whatever reasoning was put forward by the government (which is the subject of another study). Considering this conservative approach positioning women as secondary and subordinate positions within in society, on the top of withdrawal from the Convention, it would not be wrong to expect a rise in all types of gender-based violence against women, including domestic violence, in Turkey in the forthcoming years. As one author stated, Turkey has already turned into a *laboratory of violence* requiring more research and comprehensive policies towards gender equality (Boyacıoğlu, 2016).

#### Notes

albeit at different rates (the largest portion being Marmara Region hosting 19% of all honour and custom killings). The report also underlined that much of the deaths which were reported as "suicide" are likely to result from the pressure on women on the basis of honour and customs. See "The Report of the Parliamentary Research Commission on the Causes of Honour and Custom Killings of Women and Children" (22th term, 4th Legislative Year), para. 1140.

8. In fact, the Courts require the presence of a decision to murder from a family council in order to classify it as a custom murder.

#### References

Karınca, E. (2011). *Sorularla Kadına Yönelik Aile I* ̇ *çi S*̧*iddet*. Ankara Barosu Yayımı.

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/ by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

 While this chapter does not entirely escape from the so-called free speech dilemma, it questions this confrontational framing of issues and identity groups and seeks to look beyond it. The confict is often presented in the abstract as though two equal forces slam together and where they meet in the middle is where the objective "balance" between them lies. Indeed, the need to strike "the correct balance" between rights is widely asserted and rarely questioned in discussions on hate speech. But are the two sides always so evenly weighted? Can a fair or neutral balance be struck when interests in regulating speech are presented as "minority rights" and interests in free speech are exalted as universal

J. Neller (\*)

Manchester Metropolitan University, Manchester, UK e-mail<EMAIL_ADDRESS>
© The Author(s) 2022 153

G. Guney et al. (eds.), *Towards Gender Equality in Law*, https://doi.org/10.1007/978-3-030-98072-6\_8

and fundamental? To what extent does this representation of distinct and inherently opposing interests obscure complex realities? What other issues might this abstract binary distract us from?

This chapter draws on the parliamentary debates that preceded the enactment of the stirring up hatred offences of England and Wales to fag a number of important considerations beyond the free speech dilemma for introducing stirring up gender hatred offences. The aim, therefore, is not to evaluate proposals and criticisms relating to the enactment of stirring up gender hatred offences, but rather to draw insights from research into the *existing* offences that can be used to contextualise and inform such evaluations.  In 2014, the Law Commission conducted a consultation on the possibility of extending these offences through the addition of hatred on grounds of disability and transgender identity but concluded that there was insuffcient evidence that such offences were necessary. In this consultation, which also examined other areas of hate crime law, the issue of gender hatred was conspicuously absent. However, in 2018 the Law Commission commenced a new review of hate crime law, with consideration of gender hatred explicitly within its terms of reference. The remit of this review is considerably wider than its predecessor and includes not only whether the stirring up hatred provisions should be extended to include more types of hatred, including gender hatred, but also whether and how they might be reformed, and whether the scattered provisions of anti-hate law should be consolidated within a single Hate Crime Act.1

Free speech has been a prominent concern in the Law Commission's consultation, alongside various other issues primarily relating to the overall coherence of the provisions. These issues are briefy mapped out in relation to the stirring up hatred offences in the frst section of this chapter so as to establish the legal context within which an offence of stirring gender hatred would be situated. The relationship between the stirring up hatred provisions and other areas of law that are premised on identity categories—hate crime law and anti-discrimination law—is also considered. Having established the uneven legal terrain of the existing offences, we then turn to their logics. Here, we question how the justifcations advanced for the existing stirring up hatred offences might apply to gender hatred offences, including how they might ft within the logics of public order law. Through this analysis, another confict is revealed: that between the preservation of public order and the pursuit of equality. Ultimately, I argue that this confict and other underlying tensions need to be exposed and confronted in order for stirring up gender hatred offences to challenge—rather than reproduce—forms of inequality.

#### 8.2 The Current Stirring up Hatred Offences

The offence of stirring up racial hatred was frst enacted by the Race Relations Act (1965), under the subheading of "Public Order". Although it was criticised for its limited scope and enforcement mechanisms, this act was groundbreaking as the frst legal instrument of England and Wales that sought to address racism. An offence under Section 6 of the Race Relations Act (1965) required the publication, distribution or use in a public place of threatening, abusive or insulting words that were both intended and likely to stir up racial hatred.2 The Race Relations Act (1976) relocated this offence to Section 5A of the Public Order Act (1936) and removed the requirement for intent to be proved. Then, Part III of the Public Order Act (1986, hereafter "POA86") introduced intent as an alternative, rather than an additional requirement, to proving that racial hatred was likely to be stirred up and replicated the offence across a range of media, including publications, plays, recordings and broadcasting. I refer to this suite of offences (Sections 18-22 POA86) as the "stirring up racial hatred offences". The frst of these offences reads as follows:

A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening abusive or insulting, is guilty of an offence if–

Important features of these offences, which have not changed since 1986, are as follows: (1) they are inchoate (i.e. there is no requirement to prove that racial hatred has actually been stirred up), (2) they concern speech addressed to third parties who might be incited to hate, rather than speech addressed directly to its targets, and (3) they concern speech that targets a group of people defned by reference to their race, rather than individuals. These features are often overlooked or confused but are important for understanding the particular conduct that the offences prohibit and, therefore, how they are distinct from other provisions.

The Racial and Religious Hatred Act (2006) added offences of stirring up religious hatred to the POA86. Such an addition had been discussed for decades. Prior to the twentieth century, attempts to introduce a religious hatred provision tended to be in the form of a proposed amendment to a bill or a private members bill. Conversely, in the twentieth century the government sought to amend Part III of the POA86 so that the racial hatred provisions would be extended to include religious hatred. However, parity between the two offences was rejected by the House of Lords. Race and religion were distinct and should be treated as such, it was argued, because race is immutable, and it makes no sense to persuade someone to change their race, while religion is chosen and proselytising is often viewed as a religious duty (see Wintemute, 2002, pp. 137–138).3 Consequently, the Lords imposed changes to the Racial and Religious Hatred Bill, with the effect that the religious hatred offences differ from the racial hatred offences in four ways:

The religious hatred offences are therefore considerably narrower and more diffcult to prosecute than the racial hatred provisions. Indeed, the necessity of proving intent was removed from the racial hatred offences by the Race Relations Act (1976) precisely because it was an excessively diffcult criterion to meet (see Scarman, 1975, p. 35).

While different types of hatred might well require different responses (Goodall, 2009, p. 219), the discrepancies between the racial and religious hatred provisions is problematic due to the diffculty in meaningfully distinguishing between the two sentiments in practice and the particular approach that parliament has taken in its attempts to do so. Racial hatred is defned in the current provisions as "hatred against a group of persons defned by reference to colour, race, nationality (including citizenship) or ethnic or national origins" (Section 17, POA86). When the racial hatred offence was frst enacted in 1965, in the shadow of the Holocaust, there was concern to ensure that antisemitism would be encompassed. It was claimed that explicit language in the text of the provision to clarify the matter was unnecessary and that Jews would of course, one way or another, be deemed a group of persons defned by the abovementioned criteria (see HC Deb 3 May 1965). The question of the scope of "race" was then considered in the 1983 case of *Mandla v Dowell Lee*. This case before the House of Lords concerned whether Sikhs could beneft from racial discrimination legislation. The Lords' nuanced examination of the issue resulted in the establishment of seven criteria for ethnicity, including shared religion, and Lord Fraser explicitly ruled out the necessity of being "drawn from what in biological terms was common racial stock" (pp. 549 and 564). However, in subsequent debates on the stirring up hatred offences (e.g. Ramsay and Mackay, HL Deb 14 Mar 2005; Khan and Harris, HC Deb 21 June 2005), this judgement was reduced to the assertion that Sikhs (and Jews) beneft from racial hatred provisions because they are "mono-ethnic" religions, but other religious groups such as Muslims, Hindus and Christians do not because they are "multi-ethnic".

There are two important things to note about the distinction between purportedly "mono-ethnic" and multi-ethnic religions (aside from the circularity of using ethnicity to classify religious groups when religion is a criterion for identifying ethnicity). Firstly, this distinction means that hatred against some religious groups can be prosecuted under the wider racial hatred provisions, while identical hatred against other religious groups can only be prosecuted under the narrower religious hatred provisions.5 Secondly, the approach to determining the scope of the offences has focused on classifying the groups targeted by the hatred, rather than classifying the hatred. Thus, rather than considering whether a particular group is racialised within the speech at issue, it has been deemed appropriate to instead assess whether that group *is* racial, as though race is something that can be objectively and apolitically ascertained. This approach was demonstrated not only in relation to the distinction between monoand multi-ethnic religions but also in a discussion in the Lords (HL Deb 23 October 1986) on the extent to which the stirring up of hatred against gypsies might fall within the scope of the racial hatred offence. Here, it was concluded that only hatred against "genuine" gypsies would be caught. In this way, the law racialises by asserting which groups are and are not "defned by reference to race" and distributes protections accordingly. There is therefore some contradiction within measures that are ostensibly enacted to facilitate integration and inclusion but that reproduce practices of differentiation and classifcation.

 Even though it was generally (although not unanimously) agreed that sexual orientation is, like race, an immutable characteristic, the inclusion of the SO hatred offences at the narrower threshold of the religious hatred offences was not questioned. Rather than any particular property of sexual orientation, the establishment of the SO hatred offences at the stricter threshold seems to refect the extent to which homosexuality was viewed as a controversial and contestable topic. For example, Liberal Democrat MP Evan Harris rationalised the stricter threshold for SO hatred as follows:

it perhaps requires less protection because there is a great deal of sincerely held, often religious, opinion that extends to sexual orientation that does not—generally speaking, in this country, thank goodness—extend to race. (HC Deb 6 May 2008)

There is also a separate free speech provision in relation to the SO hatred offences, to which a second paragraph was added by the Marriage (Same Sex Couples) Act (2013).7 Ignoring the fact that no such free speech provision exists in relation to the racial hatred offences, advocates of an SO free speech provision argued that it was necessary for consistency with the religious hatred provisions, while opponents argued that it was a "wrecking amendment" (Bercow, HC Deb 26 Jan 2009) that neutered the SO hatred offences. After a decade of being in force, there has been only one prosecution for stirring up hatred on grounds of sexual orientation (*R v Ali, Ahmed and Javed*, 2012).

#### 8.3 Stirring up Gender Hatred

Consideration of the current law on stirring up hatred demonstrates that there is no straightforward option to simply add gender to the existing offences. It would need to be decided if gender hatred offences should be enacted at the wider or the narrower threshold, that is, should intent be a necessary element of the offences and should they encompass language that is abusive and insulting as well as that which is threatening? Also, could an argument for an explicit free speech provision be made in relation to gender hatred offences and to what extent might this undermine them? Furthermore, if the scope of the current offences was replicated for gender hatred, there is a risk that this could lead to problematic classifcatory decisions regarding what counts as "a group defned by reference to gender". For example, might threatening speech against feminists escape from the offences on the basis that not all feminists are women? While these considerations would apply to the addition of any identity category to the stirring up hatred provisions, this section briefy sets out some further considerations and contexts that are specifc to gender hatred.

#### *8.3.1 Gender Hatred and Misogyny*

Technically, the stirring up hatred provisions do not protect particular identity groups. Despite being enacted with certain minority groups in mind (Jews, Commonwealth immigrants, Muslims, homosexuals), the stirring up hatred offences address hatred on grounds of characteristics that may be common to either a minority or a majority group (Bell, 2002, p. 181). For example, a person may not stir up hatred against a group defned by reference to race, regardless of whether their race is black, white, British, Pakistani, Welsh and so on. Nevertheless, protection on certain grounds is likely to be far more important to persons who comprise a minority in relation to that characteristic and where there is a history of that minority being oppressed and persecuted (Neller, 2018, p. 77). This is refected in advocacy of the stirring up hatred provisions that emphasises the need to protect particularly victimised groups. There is therefore some discrepancy between the justifcation of a provision and the text of the enacted legislation, where the former recognises structural inequalities and the latter does not (Mason, 2014b, p. 166). Thus, there is considerable debate as to whether the incorporation of gender within anti-hate legislation should replicate this veil of neutrality or should refer specifcally to misogyny (see Campbell, 2018, p. 34; Mullany & Trickett, 2018, pp. 28–30; Sloan Rainbow, 2017, pp. 63–64). I refer throughout this chapter to prospective "stirring up gender hatred offences", not to advocate the former approach, but to draw attention to this feature of the existing offences.

However, while several scholars have pointed to the ways in which misogyny, like racial hatred, aims to reinforce the structural dominance of one group over another (see Gill and Mason-Bish, 2013, p. 4), the notion of gender hatred nevertheless "questions our conception of hate crime victims as a minority group" (Mason-Bish, 2014, p. 178). This could be a double-edged sword: on the one hand, it may be more diffcult to evoke the required levels of group vulnerability, deservingness and sympathy for half the population (Mason, 2014a, pp. 83–84); on the other hand, misogyny cannot so easily be marginalised or deprioritised as a "minority" interest. Here, understandings of how gender intersects with other identity categories can add important nuance that has often been lacking in parliamentary debates. Femaleness, like other characteristics, should not be viewed as a uniform marker of vulnerability, thereby allowing the existence of successful and powerful women to be touted as evidence that misogyny is not a problem. Equally, the existence of misogyny—evidence of which abounds, from domestic violence and femicide to "pick-up artists" and the "manosphere" (e.g. Ging, 2017)—should not be used to attach fearfulness and risk to femaleness. Rather, gender hatred should be seen as an element that accumulates unevenly, combining with and exacerbating other forms of hatred, disadvantage and exclusion (Williams Crenshaw, 1993; Mason-Bish, 2014, p. 177; Sloan Rainbow, 2017, p. 73). Indeed, Hannah Mason-Bish (2014, p. 173) suggests that attention to gender within the hate crime paradigm might illuminate a need to move away from approaches that focus on membership of one identity group at a time (see also Mason, 2005; Moran & Sharpe, 2004).

#### *8.3.2 The Absence of Gender in UK Anti-Hate Law*

In her examination of how federal hate crime laws were constructed in US Congress, Valerie Jenness (1999) argues that sex was incorporated within US hate crime law relatively easily. In the US, gender was incorporated within federal hate crime law by the Violence Against Women Act 1994, with advocacy of this law presenting violence against women as a civil rights issue. Additionally, violence against women was found to ft within the logic of hate crime law through the notion that acts of gender-based violence are acts of discrimination, the effects of which extend beyond the individual victim and are seen to disadvantage women as a group (ibid., p. 562). While there were debates in the US about how feasible it would be to include violence against women within hate crime law, Jenness states:

There was no debate about the legitimacy of sex as a status in need of protection and legal consideration, in large part because the legitimacy of 'sex' as a line of stratifcation resulting in discrimination had long since gained legal and extralegal currency. (Ibid., p. 563–564)

However, the acceptance of sex as a prohibited ground for discrimination has not led to the category's smooth incorporation into either hate crime law or hate speech law in England and Wales. Ten years after the Race Relations Act (1965), parliament passed the Sex Discrimination Act (1975). This Act drew upon the racial discrimination provisions but sought "to avoid a number of weaknesses which experience had revealed in the enforcement provisions of the race relations legislation" (Home Offce, 1975, p. 11). Then, in the drafting of the Race Relations Act (1976), the government (ibid.) aimed to harmonise the legislation on racial and gender equality but, as noted above, ousted the stirring up racial hatred provision to the Public Order Act (1936). Thus, the commensurability of the categories of race and sex as prohibited grounds of discrimination was well established in UK law, but stirring up hatred was excluded from this frame; there was no discussion of the possibility of including a stirring up hatred provision within the Sex Discrimination Act (1975).

Hate crime law was enacted in the UK with the introduction of racially and religiously aggravated offences under the Crime and Disorder Act (1998, as amended by the Anti-Terrorism, Crime and Security Act, 2001) and the requirement to enhance sentences where an offence is motivated by hostility on grounds of race, religion, sexual orientation, disability or transgender identity under the Criminal Justice Act (2003, as amended by the Legal Aid, Sentencing and Punishment of Offenders Act, 2012). Again, the read-across from anti-discrimination law to anti-hate legislation described by Jenness in the US context has not occurred in England and Wales. Whereas in the US the rationales of hate crime law were used to introduce provisions on violence against women, in the UK provisions on violence against women preceded the enactment of hate crime law. Thus, gender hatred was already afforded "special" protections (Mason-Bish, 2014). Indeed, diffculties in the passage of the stirring up religious and SO hatred provisions demonstrate the need to clearly articulate the legal gap which new offences will fll, along with the diffculty of grasping and effectively communicating the intricate legal specifcities of such a gap in an area of law that developed in an uneven and piecemeal fashion (Law Commission, 2020, p. 170).

#### 8.4 Rationalising the Addition of a New Category

So, without a consensus that characteristics protected from discrimination should be protected from hatred, how might gender hatred be deemed to ft within the logics of the existing stirring up hatred provisions? In Chap. 10 of the 2020 consultation paper, the Law Commission has comprehensively reviewed approaches established by academics, stakeholders and other jurisdictions for determining which categories should be included in anti-hate legislation. The Law Commission concluded that three criteria *should* be used in the selection of categories for protection: demonstrable need, additional harm and suitability (Law Commission, 2020, p. 208). A greater understanding of these criteria and how they *have* operated in practice can be gained by looking back at the arguments made around the addition of hatred on grounds of religion and sexual orientation to the stirring up hatred offences.

Firstly, as might be expected, demonstrable need has indeed been essential to the justifcation of previous expansions. The question of need was at the heart of previous debates on extending the stirring up hatred offences and, as noted above, the Law Commission recommended in 2014 that the offences should not be extended to encompass hatred on grounds of disability or transgender identity due to a lack of evidence that such problems were suffciently pressing. Secondly, additional harm requires "evidence that criminal targeting based on hostility or prejudice towards the characteristic causes additional harm to the victim, members of the targeted group, and society more widely" (Law Commission, 2020, p. 208). The notion of *additional* harms refects the situation in relation to hate crime law, which provides for aggravated offences or enhanced sentences for existing crimes, rather than the situation of the stirring up hatred provisions, which create entirely new offences. However, the last aspect of this criterion that requires harm to be caused to "society more widely" has proved problematic in relation to the stirring up offences: this framing draws an all-too-common distinction between targeted groups and society, suggesting that their interests are separate and that harm caused to some groups somehow does not constitute harm to society. Thus, only those harms capable of being framed as a threat to the interests of legislators, and not only as a "minority rights" issue, have been deemed suffcient to warrant a legislative response. In other words, there must be a degree of "interest convergence" (Bell, 1980), which ultimately ensures that existing power relations are maintained.8 Finally, the third criterion, suitability, appears to be so broad that it undermines any point in specifying criteria: any proposed characteristic will undoubtedly face objections on the grounds that it is "unsuitable", a poor ft with the existing offences, a poor use of criminal justice resources and inconsistent with the rights of others.

These criteria will now be considered in relation to their potential to justify the addition of gender to the stirring up hatred offences by examining how they were deployed in the justifcation and shaping of the racial and religious hatred offences and in the addition of sexual orientation.

#### *8.4.1 Fitting Gender Hatred into the Logics of the Racial and Religious Hatred Offences*

The stirring up racial hatred offence was presented as embroiled within a confict between minority interests in the amelioration of hatred on the one side and universal interests in freedom of expression on the other. However, the original racial hatred provisions, their later amendments and the religious hatred provisions were also enacted amidst concerns about "race riots" and the segregation and "ghettoization" of communities. Indeed, the public order framing of the provisions belies concerns not only to protect "victims" but also to prevent their retaliation and to facilitate their integration. For example, in presenting the original Race Relations Bill, Home Secretary Frank Soskice stated:

Basically, the Bill is concerned with public order. Overt acts of discrimination in public places, intensely wounding to the feelings of those against whom these acts are practised, perhaps in the presence of many onlookers, breed the ill will which, as the accumulative result of several such actions over a period, may disturb the peace. (HC Deb 3 May 1965)

This concern with public order and "the peace" provides the interest convergence element for justifying the provisions: racial hatred is a "minority" problem until it threatens the peace of wider (whiter) society. The confict that carried greater weight in the impetus to legislate was therefore between free speech and public order—the Hobbesian clash between freedom and security—with the sense that the racial hatred legislation was not so much required to protect vulnerable minorities as to mitigate a "clash of civilizations".

In contrast, gender hatred presents no such risk of inter-communal confict and violent retaliation; there is no territorial divide between genders, and cumulative acts of misogyny are unlikely to lead women to breach the peace.9 Therefore, public order, as it was conceived in relation to racial hatred, does not seem to provide adequate justifcation for a stirring up gender hatred offence. Indeed, we might question whether it is desirable to include a stirring up gender hatred offence under the auspices of public order law, not least due to the extent to which the protection of public order has been associated with pacifcation and the protection of the status quo, rather than the promotion of a more just and equal society (Neocleous, 2000, p. 110).

A more helpful precedent for advocating stirring up gender hatred offences can be found in relation to another, albeit interconnected, justifcation for the racial hatred offences: the symbolic function of legislating. Here, the argument in relation to racial hatred (and later religious hatred) was that enacting stirring up hatred legislation would reassure racialised groups that their concerns were recognised and taken seriously by the government. This rationale was apparent in the extent to which the Race Relations Act (1965) was presented as a counterbalance to measures designed to increase restrictions on immigration from the Commonwealth nations. For example, a 1965 Government White Paper set out the approach to race relations as follows:

This policy has two aspects: one relating to control on the entry of immigrants so that it does not outrun Britain's capacity to absorb them; the other relating to positive measures designed to secure for the immigrants and their children their rightful place in our society.10

This technique of counterbalancing measures that disproportionately disadvantage minorities with the enactment of "minority rights" legislation in order to ameliorate any backlash was also evident decades later in discussions on introducing hate crime legislation. In a letter to the Lord Privy Seal regarding the police powers to stop and search that became Section 60 of the Criminal Justice and Public Order Act (1994), Home Secretary Michael Howard wrote:

The proposed new powers are already being described in the minority press as recreating the discredited 'sus' law and there are serious implications for both community relations and to public order if we are unable to present any positive counter-balance. It is therefore important that the Government take the initiative on racial crimes if it is to counteract the belief amongst ethnic minority communities that we do not take their concerns equally seriously. (Cited by Ruddock, HC Deb 12 April 1994)

This fts with the public order rationale that racial hatred provisions will reduce the likelihood of inter-communal confict (and confict between racialised communities and the police). However, rather than viewing the law as effective to the extent to which it is enforced against those who breach it, this approach also locates the effcacy of the law in its communication of "a message" to both potential perpetrators and victims. This function was also clearly endorsed by advocates of stirring up religious hatred provisions in the twenty-frst century. For example, Labour MP Chris Mullin referred to a religious hatred clause as "a small step, but it will send a signal that we take seriously the kind of abuses to which some of our constituents are being subjected" (HC Deb 26 November 2001; see also Whitaker, HL Deb 27 November 2001), and Labour MP Frank Dobson stated: "If we do not take this opportunity to declare that incitement to hatred of people on the grounds of their religion is wrong, we will declare that we tolerate its continued existence" (HC Deb 21 June 2005).

Thus, while there is no pressing risk of rioting or outbreaks of mass violence stemming from gender hatred, advocates of a stirring up gender hatred offence could easily argue that it is necessary in order to send a clear message that such hatred is wrong and is taken seriously. Such an argument can be supported by evidence from a trial by Nottinghamshire Police of recording incidents of misogyny. While the incidents recorded here predominantly involve behaviour targeted at an individual, and therefore would not qualify as stirring up hatred, research into the trial concludes that the policy was valued for challenging the normalisation of misogynistic behaviour and empowering victims (Mullany & Trickett, 2018, pp. 24–26). It therefore seems reasonable to suggest that the enactment of national stirring up gender hatred offences could have a similar declarative and de-normalising effect. This corresponds with academic work on the moralising effect of criminal law (Mason, 2014a; Bottoms, 2002, pp. 25–26) and the importance of legal recognition for self-esteem (Thompson, 2012). However, it is an unfortunate irony that the discrepancies between the racial and religious hatred provisions currently undermine their capacity to communicate a commitment to equality. While the Law Commission (2020) has proposed equalising these provisions, the full scope of what they communicate and whether a declarative function is suffcient should be carefully considered.

#### *8.4.2 Fitting Gender Hatred into the Logics of the Sexual Orientation Offences*

Like gender hatred, hatred on grounds of sexual orientation does not present a risk to public order in the conventional sense.  So how were the SO hatred offences understood as belonging alongside the racial and religious hatred offences within the Public Order Act 1986?

Firstly, the argument that sexual orientation is commensurate to race was easier to make and more widely accepted than the argument that religion is commensurate to race. In the extensive debates on stirring up religious hatred, it was repeatedly argued, as noted above, that race is an immutable characteristic, whereas religion is not, and that this distinction warrants differential treatment. Advocacy of enacting SO hatred offences was therefore aided by a broad consensus that stirring up hatred against an immutable characteristic is morally wrong. The same substantive argument could be applied in advocacy of enacting gender hatred offences. However, the claim that special protections are required to combat hatred on grounds of immutable characteristics permits no space for understandings of race, sexual orientation or gender as socially constructed or variable phenomena; there is no space for understanding processes of racialisation, sexual discovery, gendering or any kind of fuidity in identifcation. Such an argument would therefore leverage "the law's propensity to classify" (Grabham, 2009, p. 186) and replicate assumptions about "true" identities as fxed, distinct and discernible. Thus, if the enactment of stirring up gender hatred offences is to pursue an equality agenda, advocacy based on the parity of gender with identity categories that are afforded protection under the existing offences may frst need to challenge how those protected categories are conceptualised.

Arguments about the symbolic importance of legislating also played a role in the passage of the SO hatred offences.  Presumably, this again refects the fact that the reassurance of sexual minorities was not deemed important for the maintenance of public order. This calls into question the extent to which advocacy of stirring up gender hatred offences might succeed through a justifcation based on the need to empower women and affrm the principle of gender equality. While such objectives seem undeniably worthwhile, could gender hatred offences lack the necessary interest convergence to render such legislation not only desirable but also essential in the eyes of legislators?

The question of interest convergence in relation to the SO hatred offences provides insight into how stirring up hatred can be viewed as a public order issue where there are no discernible risks of riots. First, however, it is relevant to consider the interest *di*vergence that produced considerable opposition to the SO hatred offences. Whereas the debates on the racial and religious hatred provisions pitched "minority interests" against the universal value of free speech, but were lent support by public order concerns, opponents of the SO hatred offences pitched "minority interests" in stymying expressions of homophobia against both the universal value of free speech *and* the particular rights of Christians to express their religious beliefs.  Thus, while sexual orientation was likened to race as an immutable identity category, it was differentiated through a distinction between being homosexual—which should not be disparaged—and engaging in same-sex sexual activities—which is fair game for moral judgement.

Yet, in the representation in parliament of a clash between the interests of homosexuals and Christians, the issue was depoliticised as an unfortunate confict between discrete, fxed and relatively homogeneous identity groups.11 However, the side of Christianity was bolstered by associations with both free speech and "tradition", from which homosexuals were implicitly excluded by their history of being criminalised.12 While homosexuals were surely able to stand up for themselves (HL Deb 22 January 2008), persons who might be criminalised by the SO hatred offences were repeatedly described as fearful pensioners, who were merely expressing their "legitimate" and "sincere" beliefs. Lord Waddington expressed this Christian exceptionalism particularly clearly in his statement that "it should be clear in the Bill … that a Christian expressing strong views will not be caught" (HL Deb 3 March 2008). Despite such special dispensation, speakers presented the whole of Christianity as under attack from a new "orthodoxy" that was using law to assert itself (Johnson & Vanderbeck, 2014). In the framing of a confict between minorities, then, Christianity benefted from a revered history of moral authority and valued traditions (which were never associated with the persecution and oppression of homosexuals), while homosexuals were supposedly representatives of a new orthodoxy that threatened vulnerable Christians. Such a framing can hardly be deemed conducive to a "neutral" balancing of interests.

Despite this, a form of interest convergence was achieved and the SO hatred provisions were passed into law (albeit at the narrow threshold of the religious hatred provisions). The extra ingredient that made this possible was the invocation of a more familiar and less revered type of perpetrator: black rap artists, whose violently homophobic lyrics were cited as evidence in support of the SO hatred offences. In contrast to the "sincere" beliefs of Christians, freedom of expression and sincerity of belief were not raised in relation to the criminalisation of homophobic lyrics (Johnson & Vanderbeck, 2014, p. 163). Signifcantly, the lyrics were all in Jamaican patois and were therefore recognisably "non-British": the image of the young, black, Caribbean rapper is opposite in almost every way to the white, British, Christian, middle-class pensioner, and provided a means of locating homophobia outside of what is conventionally considered "respectable" society. The lyrics

emerge from a culture, mostly in the Caribbean, that is deeply homophobic and where violence and murders on such grounds are commonplace. (Turner, HL Deb 9 July 2009)

Thus, hatred was again presented as a public order issue through the representation of a "clash of civilisations". A "righteous white moralising" (Williams Crenshaw, 2017, p. 57) narrative of good versus evil, wherein respectable, tolerant society is at risk from uncivilised, intolerant others, provided the interest convergence that transformed minority interests into societal interests.

In order for the stirring up SO hatred offences to make sense within public order law, public order needed to be reconceptualised beyond risks of riots and intercommunal violence. However, the achievement of this through the image of the tolerant society that must be protected from foreign vulgarity reinforced the existing privileges and exclusions of society.  The risk that the fght against gender hatred could be similarly co-opted to reinforce such narratives and differentiations should be taken seriously. Comparable evidence of violent misogyny in rap lyrics abounds and tropes about how "they" treat "their" women are a well-worn means of differentiating and subordinating racialised minorities (see Farris, 2017; Spivak, 1988). Questions should therefore be asked about who it is anticipated that stirring up gender hatred offences would criminalise and the extent to which such offences are justifed—and may therefore be implemented—on the basis of the supposed deviance of racialised and already-marginalised groups.

#### 8.5 Conclusion: Pursuing Gender Equality

This chapter sets out the ways in which adding gender hatred offences to the Public Order Act (1986), as it currently stands, could replicate several problematic dynamics and cannot be assumed to represent a straightforward advancement towards equality. The passage of the current stirring up hatred offences suggests that the free speech objection can only be overcome where interests in stymying a particular type of hatred converge with interests in protecting public order. However, the public order that is to be protected has been conceptualised as the status quo, complete with contemporary biases and exclusions. Uninterested in change, a public order framing erases histories of oppression to produce depoliticised "clashes of civilisations" that require appeasement and pacifcation (Jackson, 2013), rather than the redress of structural biases (Spade, 2011). Protecting public order and pursuing equality therefore appear as incompatible objectives, such that the capacity of stirring up gender hatred offences to challenge the existing order may be curtailed by their enactment under the auspices of public order law. Alternatively, the foregrounding of an equality agenda could be used to reformulate the minority/majority dynamics of the free speech dilemma. By prioritising equality over "order", ameliorating expressions of hatred can be viewed as a universal interest, and interests in propagating such hatred can be viewed as minority interests.

Moreover, care should be taken to look beyond these dramatic, binarising conficts and to listen to the persistent dissonance that surrounds the law's approach to identity, not least because such dissonance could signifcantly distort the desired symbolic function of the offences: to present the stirring up hatred offences as a desirable model to be replicated in regard to gender could be to endorse the ways in which they currently stratify and circumscribe identity. If the offences continue to be stratifed, adding gender hatred offences alongside either race in Part III of the POA86 or religion and sexual orientation in Part IIIA would affrm a hierarchy of victims that requires different criteria to be met depending on who the hatred targets. Additionally, the infexible, taxonomic understanding of identity has enabled identity groups to be pitched against each other and their interests to be treated as zero sum. Advocates of stirring up gender hatred offences should therefore make a case for a clear break from this approach, unless they also advocate legal pronouncements on who does and does not count as a group defned by reference to gender and unless they are willing to risk essentialising representations of women's interests.

To meaningfully pursue gender equality—for all diverse, fuid and intersecting identity groups who are disadvantaged by gender hatred—a holistic approach is required. In an area of law that addresses hatred against groups, rather individuals, it is essential that basic third-wave feminist precepts do not get drowned out in the clamour for legal recognition. The empowerment of women cannot be complete until prejudices and hatreds on grounds of race, religion, sexual orientation, disability, transgender identity, class and all other such grounds are eradicated alongside sexism and misogyny. This is not to say that the law should never address any one of these issues singularly, but that legislation should be formulated in such a way that recognises rather than negates intersections and fuidities. The law cannot effectively address inequality if the inequalities of the law are not confronted.

#### Notes

Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.

In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken or itself to be threatening or intended to stir up hatred.

In this Part, for the avoidance of doubt, any discussion or criticism of marriage which concerns the sex of the parties to marriage shall not be taken of itself to be threatening or intended to stir up hatred.

8. Derrick Bell established this term to describe the desegregation of schools in the US: "this principle of 'interest convergence' provides: the interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites" (Bell, 1980, p. 532).

#### References

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/ by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

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### Law Is Practical?

## Towards Gender Equality in the Solicitors' Profession in England and Wales A Practical, Intersectional, Socio-legal Approach

#### *Julia Winstone*

#### 9.1 Background

At the time of writing, it is almost 100 years since Carrie Morrison was admitted as the frst woman solicitor in England, on 18 December 2022, so it is an opportune moment to refect on how far women have advanced as solicitors since then. This chapter, which confnes its subject matter to the jurisdiction of England and Wales, uses a socio-legal perspective to interrogate the position of women solicitors in private practice and thus provides a critical analysis of relevant equality law, policy, practice and research. Since the 1970s, equality laws in statute have made it illegal to discriminate on the basis of gender in terms of work and pay. Yet, despite their legal entitlements, these measures have failed to translate into equality for women who practise as solicitors.

More recently, the Equality Act 2010 (2010 Act), which came into force on 1 October 2010, sought to simplify and strengthen equality law,

J. Winstone (\*)

University of Sussex, Brighton, UK

e-mail<EMAIL_ADDRESS>
© The Author(s) 2022 177

G. Guney et al. (eds.), *Towards Gender Equality in Law*, https://doi.org/10.1007/978-3-030-98072-6\_9

giving greater protection to individuals against discrimination on several grounds, including race, sex, age, being pregnant or having a child1 (Ministry of Justice, 2010). Law frms have duties as service providers and employers under the 2010 Act (Equality Act 2010, Chapter 1; Law Society, 2020a). The Law Society, Solicitors Regulation Authority (SRA) and Legal Services Board (LSB) also have duties to meet their obligations under the 2010 Act in respect of equality and diversity (Law Society, 2012, 2020a; LSB, 2021; SRA, 2014, 2017, 2021). Many initiatives were introduced to implement the 2010 Act, including collecting data on workforce diversity. Nevertheless, regardless of legal duty and supporting strategies, the burden of enforcing the 2010 act, falls on the individual facing discrimination.

For the past 50 years, signifcant numbers of women in England and Wales have entered the solicitors' profession and remained at junior levels. In 1970, women comprised 10% of people admitted to the profession by registering on the Roll of solicitors. This fgure increased to 51.1% in 1992–1993, rising to 60% in 2004–2006, and by 2018–2019, 63.4% of new admissions were women (Aulack et al., 2017; Cole, 1998; Law Society, 1988, 2015, 2019). Since 31 July 2017, women who hold practising certifcates2 have outnumbered men (Law Society, 2018). There is, however, a gap, between the participation rates of men and women holding practising certifcates, which steadily increases as solicitors grow older: Over time, the numbers of women practising reduces with age and experience (2019a Law Society, 2015, 2019a). This gap between men and women solicitors is not a new phenomenon, socio-legal studies have observed this for years, although predictions of a "trickle up" process towards full equality have not materialised (Sommerlad & Sanderson, 1998, p. 106; Law Society, 2019a).

This chapter highlights discrepancies between the substantive law on equality enacted by Parliament and the failure to achieve equality in practice in the solicitors' profession in England and Wales.

Barriers to career progression and equal pay faced by women solicitors include law frm cultures (Sommerlad, 2016; Sommerlad et al., 2013) work–life balance (Nicolson, 2005; Webley & Duff, 2007) and childcare issues (Bacik et al., 2003; Nicolson, 2005; Sommerlad, 2002; Sommerlad & Sanderson, 1998). As documented by the First 100 Years Project (Acland & Broomfeld, 2019), a small number of women have made signifcant progress reaching senior positions; however, the Law Society's report on women in leadership confrms that men dominate the senior levels of the profession (Law Society, 2019a). During her time as Law Society president, 2018–2019, Christina Blacklaws initiated and led the *Women in Leadership in Law* project that was designed to better understand why men continue to lead the solicitors' profession, regardless of the numbers of women who have entered the profession since the 1990s. The subsequent report found that contributing factors included unconscious bias, a gender pay gap and the need for fexible working practices (Law Society, 2019a). Blacklaws not only drew attention to the dominance of male leaders in a profession populated mostly by women, she also highlighted further conditions of under-representation:

Women from minority ethnic communities or who have disabilities face further barriers in their careers and continue to be signifcantly underrepresented in positions of leadership in the sector. (Law Society, 2019a, p. 4)

The current Law Society president, I. Stephanie Boyce, is the Society's frst ever Black offce holder, the frst person of colour, and only the second in-house lawyer to hold the post in nearly 50 years. She has an agenda to bring about change and hopes that when she leaves offce, it will be a more diverse and inclusive profession. Her objectives include the promotion of genuine equal opportunities and equal treatment in the profession and the judiciary (Law Society, 2021a & 2021c). Increasing diversity, inclusion and social mobility is a presidential priority, and there is a focus on overcoming mid-career and progression and retention gaps to accommodate a more diverse range of solicitors. In her inaugural presidential address, Boyce stated (Law Society, 2021b, p. 2):

Solicitors with disabilities, solicitors with caring responsibilities and solicitors from minority ethnic backgrounds continue to face obstacles. Personal characteristics or an individual's socio-economic background should not determine how far people can go.

Boyce's position refects themes from socio-legal studies and is found in research commissioned by the Law Society, SRA and LSB, and it reminds us that signifcant diversity issues still need to be addressed within the solicitors' profession. Given the parliamentary intention behind equality legislation, serious refection is required about the amount of work which needs to be accomplished to ensure that women achieve, in practice, the same equality that they have been legally entitled to, in statute, for so many years.

I will argue that making inequality history requires urgent action and must incorporate an intersectional and practical strategy within a sociolegal framework. I term the approach "practical, intersectional, socio-legal approach", to address how the combined diversity characteristics of individuals affects their progression, advancement and exit from the solicitors' profession. The approach engages with quantitative and qualitative methods to develop a range of practical initiatives based on issues identifed by practising solicitors (on the Roll and with a current certifcate of practice), non-practising solicitors (on the Roll without the certifcate of practice) and solicitors who have left the profession (no longer on the Roll or with a certifcate of practice).

This chapter represents a bridge between collating existing research and outlining elements of my current research. The juxtaposition exemplifes the argument, for instance, I use a wider range of participants than those included in recent Law Society (2019a) and SRA commissioned research (Aulack et al., 2017) whose inquiry was focused on practising solicitors. The aim of my research is to close the highlighted equality gaps and enable solicitors to stay in the profession, make career progress or return to practise after a spell away from work. These subsequent proposals compliment those developed by the Law Society and the SRA; furthermore, they include examples of good practice and offer practical toolkits to facilitate career progress for a more diverse profession.

#### 9.2 Practical, Intersectional, Socio-legal Research: Law in Action

The term "socio-legal" is diffcult to defne and is a contested concept often used as an "umbrella term" rather than falling within clearly defned boundaries (Cownie & Bradney, 2013, p. 35). Banakar and Travers (2005) also view the open-endedness of socio-legal research design as a mark of interdisciplinary strength within the discourse of the sociology of law. The unclear parameters of socio-legal research also provide space to consider transformative approaches to diverse legal issues, particularly in interdisciplinary research (Moran, 2002).

For the purposes of the practical, intersectional, socio-legal research discussed in this chapter, I follow Pound's (1910) original description of "socio-legal" as representative of "law in action", in other words a way of examining how the law is applied in practice rather than how it appears in books (Banakar & Travers, 2013). Sommerlad argues that, for a long time, socio-legal studies have focused on law as a cultural practice and so develops our understanding of the relationship between the law and the social. Such a framework, therefore, applies well to this examination of gendered inequalities among solicitors' (Sommerlad, 2013) because it allows an understanding about the operation of law and legal institutions as embedded in other social processes and institutions (Menkel-Meadow, 2019).

Recent research commissioned by the SRA assessed individual experiences of the legal profession. The researchers argued that it would be impossible to capture the data by focusing on singular variables, which would measure only gender or ethnicity, and, instead, they adopted an intersectional approach (Aulack et al., 2017). The concept of intersectionality was codifed by Crenshaw (1991), and is now used to examine how social characteristics are critical to understanding the complexity of human relations in societies and organisations. Originating in Black feminist research, intersectionality emphasised how black and white women had different experiences of gender-based discrimination. The lens of intersectionality stressed that gender is not the only focus of inequality, because race and class are also arenas of inequality; moreover, these social characteristics co-construct each other (Crenshaw, 1989; Hill-Collins, 1998). An intersectional approach is applied in this research to develop an understanding of the complexity of women's experiences within the solicitors' profession.

#### *9.2.1 Mixed Methods Approach*

A mixed methods approach is taken that follows Banakar and Travers' (2005, p. 5) view to "transcend some of the theoretical and methodological limitations" of past socio-legal research. Quantitative data from the Law Society and the SRA, cited earlier, is used to identify issues that need resolution. My research triangulates data obtained from surveys and qualitative methods (following a constructivist approach) that provide data from round tables and semi-structured interviews. My ongoing investigations capture the professional perspectives of practising, non-practising and former women solicitors.

#### *9.2.2 Positionality*

My research has been developed from my perspective as a non-practising solicitor and is, therefore, "insider research". I am adopting a refexive approach to this research, commenting on my positionality throughout to demonstrate the complex relationship between processes of knowledge production and the contexts of these processes. This disclosure includes my involvement as a refective and interpretative knowledge producer (Alvesson & Skoldberg, 2009). Following Bourdieu and Wacquant (1992), I also include knowledge associated with my membership and position in the feld as a non-practising solicitor.

#### 9.3 Equality Legislation

The *Sex Disqualifcation (Removal) Act* 1919 enabled women to qualify as solicitors (and barristers) for the frst time, by removing the legal barriers that prevented them from entering the professions because they were women or married. This was not a case of overnight success; indeed, the change in the status quo followed years of campaigning (Acland & Broomfeld, 2019; Sommerlad, 2016; Sommerlad & Sanderson, 1998).

#### *9.3.1 Equal Pay*

Fifty years after the 1919 act and after a similarly long campaign, enactment of the *Equal Pay Act* 1970 (which came into force on 29 December 1975) meant that, legally, on the basis of gender, women could no longer be paid less than men for the same work or work of equal value. Today, nearly 50 years after it came into force, the 1970 act has still has not translated into equal pay for women solicitors in private practice in the twentyfrst century, or, indeed for most women, wherever they work. Recent gender pay gap reporting from the Offce for National Statistics in June 2019 indicates that women solicitors hold 54% of these jobs and earn 13.1% per hour less than men, at £21.89 per median hourly earnings compared with £25.19 per median hourly earnings for men solicitors (Offce for National Statistics, 2019).

#### *9.3.2 Equality in Law*

Since the enactment of the *Sex Discrimination Act* 1975, it has also been illegal to treat women and men less favourably at work because of their gender or marital status. The current *Equality Act* 2010, which came into force on 1 October 2010, aimed to simplify and strengthen equality law and introduced a public sector duty of equality. The act gives greater protection to individuals against discrimination on grounds including sex, sexual orientation, gender reassignment, pregnancy and maternity, marriage and civil partnership, race, religion or belief, disability and age (Ministry of Justice, 2010). Law frms have duties as service providers and employers under the 2010 act and are subject to SRA requirements on equality and diversity (SRA, 2014 & 2021). The public sector duty of equality applies to the SRA and the LSB, requiring them to have due regard for the need to eliminate unlawful discrimination, harassment and victimisation. It also requires them to advance equality of opportunity and good relations between people with and without protected characteristics under the act.

Despite these equality provisions, there are ongoing, long-term issues with retention, progression, promotion and equal pay for women solicitors (Law Society, 2019a) that indicate discrepancies between equality legislation and its implementation in practice, which will be discussed below alongside recent initiatives by the Law Society and the SRA.

Currently, individuals facing discrimination must bring individual claims to combat this through the courts. This burden has long been criticised by socio-legal scholars (Bacik et al., 2003; Sommerlad, 2016). The House of Commons Women and Equalities Committee investigated how both the Equality Act 2010 and the role of the Equality and Human Rights Commission (EHRC) were being enforced. Their inquiry found that the current individual approach to enforcement was "not ft for purpose", and proposed a change in approach so that individual challenges to alleged discrimination through the courts would become an exception rather than the rule. The Committee envisaged a "fundamental shift" in the way the act is thought about and implemented. They wanted to create a model that not only acts as a "sustainable deterrent" but also tackles "institutional and systemic discrimination" through system-wide transformation. The committee recommended that the EHRC should engage more in enforcement activity to deter discrimination, suggesting more action is taken by, inter alia, regulators, inspectorates and ombudsmen (Women and Equalities Committee (2019) *Enforcing the Equality Act: The Law and the Role of the Equality and Human Rights Commission* (HC) Tenth Report of Session 2017–2019, 1470, p. 3). Further proactive participation by the Law Society, SRA and LSB will help facilitate these changes, and my proposed research is designed to contribute towards the same goals.

#### 9.4 Women Solicitors: Retention and Progression in Private Practice

In 2014, women solicitors made up around 60% of practising certifcate holders *under* the age of 35 years. By contrast, men solicitors represented 60% of practising certifcate holders *over* the age of 35 years (Law Society, 2015). The participation rate for solicitors is the percentage of solicitors on the Roll of Solicitors holding practising certifcates, which is higher for men than women aged 26 years and above. This gap increases as solicitors grow older, with the number of women reducing with age and experience (Law Society, 2015, 2019, 2019a, 2020b). Figures from July 2018 show 60% of solicitors (0–9 years since admission) were women, with similar proportions of women spread across private practice and in-house. Women who are practising certifcate holders continue to be younger on average than men, with the difference currently being over fve years. In 2017, the difference in median ages of male and female practising certifcate holders was greater at seven years since admission, with the distribution of female solicitors remaining "skewed to those under 40" (Law Society, 2018, p. 13).3 Mid-career solicitors (10–29 years since admission) were spilt fairly evenly between men and women, with a larger proportion of men in private practice compared to in-house (Law Society, 2018, 2020b).

The Chambers Student Guide (2021) examines how, between 2014 and 2020, law frms recruited, trained and promoted women solicitors in UK law frms. The "retention gap", which measures the percentage difference between women partners and trainees, is the core issue of the report. The study shows that during the six-year period against a backdrop of women making up 63% of law school graduates, women partners and trainees grew by 5% and women associates by 2%. Meanwhile, the retention gap remained fat. Chambers acknowledges that their measurement of the retention gap is a "blunt" instrument because it does not track women solicitors hired and their actual promotion histories. Their research does, however, fnd that law frms across the UK "are doing little to change the working cultures that cause attrition" and are narrowly approaching the "diversity problem by hiring more women at graduate level" (Chambers, 2021, p. 2).

Recent research commissioned by the SRA, which adopts an intersectional approach, has begun to identify how the combined diversity characteristics of individuals may affect solicitors' progression, advancement and exit from the legal profession. The SRA looked at records of individual solicitors on the Roll of Solicitors in England and Wales between 2006 and 2016, and their key fndings demonstrated that white men are most likely to become partners than any other groups (Aulack et al., 2017).

In 2019, 49% of women solicitors were working in private practice compared with 29% in 1994, women partners in private practice increased to 31% compared to 14% in 1994 (Aulack et al., 2017), but only 18% of women solicitors in private practice were partners, compared to 40% of men (Law Society, 2020c). Analysis of SRA data indicates that women are four times less likely to obtain partnership than men (Tomlinson et al., 2019). Law Society statistics show that a smaller number of women in private practice, with 10 to 19 years post-qualifcation experience, were partners or partner equivalents as sole practitioners in 2009 (47%) and 2019 (31%). This suggests that the progression gap is not a refection of the age profle of women solicitors. Women are likely to leave private practice or work in-house (Law Society, 2019a & 2020c).

The statistics indicate there are major differences between the law in statute and the law in practice.

#### 9.5 Law Society Research

The Law Society's *Women in Leadership in Law Project* used round tables to help identify gender equality needs in the legal profession. Issues that arose included unconscious bias, the gender pay gap and fexible working issues (Law Society, 2019a). In a 2017–2018 Law Society survey, unconscious bias in the profession was cited by 52% of respondents as the most common reason why few women reach senior positions in law frms (Law Society, 2019a, pp.13–14). Sixty per cent of respondents were aware of a gender pay gap in their organisation (Law Society, 2019a), with women often being paid less than men (Law Society 2015, 2019a & 2020c). Ninety-one per cent of respondents believed that a fexible working culture was critical to improving diversity in the legal profession. Although in the fve years leading up to the survey there had been improvements in this area and fexible working was embedded in some organisations, a longhours culture in the legal profession which valued "presenteeism" remained, which the report challenged (Law Society, 2019a, p. 25).

Recommendations were made to address unconscious bias, the gender pay gap and fexible working conditions (Law Society, 2019a, pp. 26–27). Men were recommended as champions for change and catalysts for increasing diversity in the profession. This resulted in a series of round tables for men who proposed making fexible working available to everyone, using clear policies and encouraging men to take paternity and shared parental leave. Distributing work evenly, regardless of working arrangements, and encouraging regular monitoring of policies and practice were also suggested. Developing returners programmes were advised, together with improving retention of senior women solicitors and offering "alternative sourcing" to clients for skilled, experienced lawyers to work on fxed periods of contract work if they preferred not to work full time (Law Society, 2019b, pp. 14–15).

At the time of writing, research on the career experiences of Black, Asian and other ethnic groups of solicitors is currently being conducted by the Law Society, which notes that some of the barriers faced by these groups are "largely societal and as such not wholly within the gift of law frms to infuence and change" (Law Society, 2020c, p. 19). Despite this view, some law frms have worked alongside client networks to provide career development opportunities for students from these groups.

My ongoing practical, intersectional, socio-legal research will highlight good practice, developing additional toolkits and approaches to facilitate women's progress in practice from the research data, using a wider range of participants than have been involved to date and similarly address issues of ethnicity.

### 9.6 Making Inequality History through Practical, Intersectional, Socio-legal Research

To make inequality history in the legal profession in England and Wales, I argue that new practical, intersectional, socio-legal research based on additional quantitative surveys and qualitative information obtained from research participants will assist in developing practical approaches to fexible working, developing job shares, career breaks and returnships. Additionally, taking advice from leaders in these approaches will assist in developing realistic strategies and practical toolkits to help overcome barriers, for instance, on previously reported matters like childcare issues (Sommerlad, 2016; Sommerlad & Sanderson, 1998). This study will highlight examples of good practice within the profession and in other felds to develop best practice practical guidelines to develop equality in this area. Part of this approach will use models of good practice abroad, for example in France and Scandinavian countries (Glancy, 2021; Shieldgeo, 2021), to develop alternative national strategies for maternity/paternity and parental leave.

Tomlinson et al. (2013) argued that a detailed socio-legal study of solicitors who had left the profession is required to better facilitate initiatives designed to fortify their retention. Sommerlad (2016, p. 61) suggests that although a rhetorical commitment to diversity is "almost universally espoused" across the legal profession, its working conditions continue to require "a professional identity unencumbered by responsibility for social reproduction", which suggests that equality and a corresponding work– life balance "appears remote". Therefore, efforts must be concentrated on practical measures to develop retention, progression, partnership and equal pay and to overcome childcare related issues.

#### 9.7 Conclusion

It has been argued that as the frst centenary arrives since the frst woman was admitted as a solicitor in December 1922, a new socio-legal approach is required to address ongoing inequalities in the legal profession. This approach would complement recent initiatives by the Law Society, the SRA and the LSB. It is further argued that representative voices across practising, non-practising solicitors and solicitors who have left the profession must be heard. Accordingly, this practical, intersectional, socio-legal approach will develop strategies to assist women solicitors, by involving a wider range of participants covered by recent research and Law Society and SRA initiatives. Given the issues identifed in terms of retention, progression, partnership and equal pay as well as maternity and childcare, it is envisaged that some of the measures considered will include fexible working, job sharing, career breaks, returnships, appropriate work–life balance strategies and measures to facilitate working practices around childcare responsibilities.

Approaches routinely used outside the legal profession will also be incorporated. The Covid-19 pandemic has demonstrated that fexible working and other initiatives can be a highly productive approach to legal working practices and other arenas of employment that previously centred on offce-based working. If the proposed improvements do not translate to major changes within a limited time frame, as suggested by the House of Commons Women and Equalities Committee (Women and Equalities Committee (2019) *Enforcing the Equality Act: The Law and the Role of the Equality and Human Rights Commission* (HC) Tenth Report of Session 2017–2019, 1470), it is envisaged that practical strategies will be introduced whilst additional national strategies to strengthen equality legislation and its enforcement are developed. Finally, it is suggested that the proposed practical opportunities should not only apply to those women currently in the profession but also extend to those who have left so that, if they choose, they can readily fnd avenues to return to the profession. In short, the proposed approaches have an underlying ethos to maximise the opportunities available for all.

#### Notes

#### References

Offce for National Statistics. (2019). *Gender Pay Gap Explorer Statistics*, Offce for National Statistics. Retrieved August 25, 2020, from www.ons.gov.uk/ emplymentandlabourmarket/peopleinwork/earningsandworkinghours/articles/genderpaygapexplorer/2019-06-07.

Pound, R. (1910). Law in Books and Law in Action. *American Law Review*, 12–36.

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# Exploring Barriers in the Enjoyment of Sexual and Reproductive Health and Rights in Kenya: A Case Study of Sex Workers

*MaryFrances Lukera*

#### 10.1 Introduction

Kenya has a strong record of ratifying major international and regional human rights treaties such as the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979) and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (commonly known as Maputo Protocol, 2003). The Vienna Convention on the Law of Treaties (1969, Art. 2) defnes a treaty as "an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation". Hamm (2001, p. 1014) points out that

M. Lukera (\*)

University of Sussex, Brighton, UK e-mail<EMAIL_ADDRESS>
© The Author(s) 2022 193

G. Guney et al. (eds.), *Towards Gender Equality in Law*, https://doi.org/10.1007/978-3-030-98072-6\_10

the commitment to human rights treaties means that "the realisation of human rights becomes an interest in itself" and that states parties "not only are obliged not to violate human rights but also to contribute to political and socio-economic conditions favourable to respect, protect, and fulfl human rights on the national and international level". Sexual and reproductive health and rights are essential components of human rights (Freid & Landsberg-Lewis, 2001, p. 109; Leary, 1994, p. 39). Sexual and reproductive health was recognised at the International Conference and Population Development (ICPD) in 1994 and reaffrmed in the Fourth World Conference on Women in 1995 (Oronje, 2013). ICPD (1994, para 7.2) defned reproductive health as "a state of complete physical, mental and social well-being and not merely the absence of disease or infrmity", and WHO (2002, p. 5) has provided a defnition of sexual health as "a state of physical, emotional, mental and social well-being in relation to sexuality; it is not merely the absence of disease, dysfunction or infrmity".

The enforcement of sexual and reproductive health and rights also engages a right to information, a right to life, a right to dignity, a right to privacy, a right to education and a right to non-discrimination (Freid & Landsberg-Lewis, 2001; Gruskin et al., 2010; Tamale, 2008; Durojaye & Ayankogbe, 2005). Violating the right to sexual and reproductive health may impair the enjoyment of other human rights and vice versa (Offce of the United Nations High Commissioner for Human Rights and World Health Organisation, 2008). At the domestic level, these rights are embodied in the Constitution of Kenya 2010 and in the Health Act of 2017 to ensure rights-based approach to sexual and reproductive health. In this chapter, I explore four barriers that hinder the enjoyment of sexual and reproductive health and rights. I argue that for women in sex work to enjoy sexual and reproductive health and rights in the country, barriers must be dismantled and the state held accountable (Stefszyn, 2005) to promote equality and non-discriminatory practices.

#### 10.2 Methodology

The chapter is based on a qualitative study conducted in 2015 to interrogate whether a human rights-based approach (HRBA) could guarantee sexual and reproductive health of sex workers. It focused on the potential of HRBA laws and policies to improve the right to health leading to greater empowerment of sex workers (Hunt et al., 2015, pp. 2–3). I obtained the data in Kenya between May and July for my PhD research (Lukera, 2019). The research was subject to ethical review process and approved by ethics committee at the University of Sussex. The ethical considerations were subject to the Data Protection Act 1998.

To reach the participants engaged in sex work, I used the Bar Hostess Empowerment and Support Programme (BHESP), a local nongovernmental organisation (NGO) working directly with sex workers to recruit them for the study. Given the sensitivity of the topic, which involved discussion of sexual activity and that the interviews, especially with sex workers, could potentially provoke emotional experiences, particularly when sex workers had to relive their diffcult experiences (Mitchell & Irvine, 2008, p. 35), I used BHESP, which already had offered counselling services to sex workers, to provide counselling to any of the sex workers who felt distressed, including any delayed reactions of distress (ibid., p. 39), if necessary.

It was important that all the participants in the in-depth interviews and focus group discussion (FGD) give their informed consent. I obtained informed consent by the participants signing the consent forms. To ensure confdentiality in the focus group, the consent form contained information requiring participants to respect the confdentiality of other participants. The participation of participants was voluntary, and I explained to them that they had the right to withdraw at any stage of the interview or focus group without giving reasons. For confdentiality purposes for all the participants including professionals, I used anonymised quotes.

I conducted 1 focus group and 18 key informant interviews. They included ten sex workers, someone from the Division of Reproductive Health in the Ministry of Health, one police offcer and four people from NGOs. The selection criteria targeted females 18 years and older and selfidentifed as sex workers. Purposive sampling was used to select the participants, transcription and thematic analysis conducted. I identifed the mobilising organisation together with other key informants through my personal and professional networks (Rapley, 2004, p. 17; Sinha et al., 2007, p. 425; Kristensen & Ravn, 2015, p. 726).

#### 10.3 Findings

#### *10.3.1 The Ambiguous and Confusing Policies*

Coherent laws and policies play a signifcant role in the enjoyment of sexual and reproductive health and rights. The inconsistency of laws and policies in Kenya merits some discussion. In a human rights-based approach, sexual and reproductive health rights-related laws and policies need to be transparent as well as easy to understand and the government has to be accountable in implementation. In situations where the law is not clear, implementation is equally a problem:

I think a good policy is a policy that is responsive to the needs of the people. We have blanket policies. They are too general in the way they have been framed. They are not specifc. They do not highlight specifc issues they are addressing. They are just blanket policies, in the sense that they are misinterpreted, misused, misapplied and depend on the prevailing environment in terms of application, which is also a danger because it puts a lot of fear in the general population. They [laws] contradict each other. While one will appear to be pro a certain issue there is always another law in place that counters that. So you will fnd that in terms of actualising these laws and providing services, there is no clear path regarding which direction we are supposed to go, literally, as service providers, programmers or people in the development feld. (Representative 1, Family Health Options Kenya, feld notes, 23 June 2015)

Participants in this study were concerned with the way reproductive health policies were passed and shelved, and that the public in general, more so women, including the police had very little information regarding, for example, the circumstances under which abortion was allowed in Kenya under the 2010 Constitution.:

The government is just putting them on the shelf … they are not effective … Reproductive Health Policy, Adolescent Health Policy, all those policies are there, but they are not followed… The public is not aware, law enforcers are not aware of the provisions of the Constitution and so … most of the health workers are harassed by police and there is a lot of stigma because of lack of information and misinterpretation of the Constitution because some people feel that provision of abortion services is illegal in Kenya, which is not true. (Healthcare professional, feld notes, 25 June 2015)

This does not only suggest that sex workers are in a dilemma with the confusion in implementation of the 2010 Constitution and the reproductive health policies in place, but that the colonial abortion laws as stipulated in the Penal Code (ss. 158–160) have had a signifcant impact in practice. The healthcare providers' lives are threatened. They fear police arrests, and, at times, their clinics are vandalised or even burnt down. To deal with the threats, a group of organisations under reproductive health and rights alliance established a legal support network to support providers of reproductive health by, for instance, representing them in court. Citing a 2013–2014 study, the healthcare provider pointed out that approximately 465,000 unsafe abortions occurred in Kenya and that the most affected are poor women who go to quacks, while the rich women can afford good reproductive health services including safe abortion. The Kenya Health Policy (2012–2030) acknowledges unsafe abortion as a major cause of maternal mortality, and at the time of the study some efforts were underway to prevent all these unsafe abortions, as the healthcare provider stated:

We are trying to work on medical abortion whereby women can manage themselves without necessarily going to hospitals. We call it communitybased access to misoprostol and there are some organisations which are also training community nurses to distribute misoprostol to women. (Healthcare professional, feld notes, 25 June 2015)

This harm reduction model, as the healthcare provider informed this study, discourages women from using sticks or hangers to perform lifethreatening abortions because:

They can go buy those medicines in the chemists and they swallow them and then start bleeding. If the pregnancy does not come out they can go to the hospital…We are trying to educate women so that they can do that before nine weeks, that is, one or two months…that is the safest…the bleeding is minimal. (Healthcare Professional, feld notes, 25 June 2015)

The Kenyan government has the responsibility to domesticate international and regional human rights commitments into local laws and policies to ensure all women enjoy sexual and reproductive health and rights. The laws need to be clear and transparent even for accountability (Gruskin et al., 2010, p. 139). Where clarity is lacking, there will be confusion and misunderstanding in their interpretation.  In Kenya, sex workers are criminalised under the Penal Code. The law criminalises living on the earnings of prostitution and distinctively targets women (Penal Code, s. 154). In so doing, their sexual and reproductive health and rights are compromised. They are often arrested by police, and some are arraigned in court, although in some instances police ask them for bribes on the spot or in custody to buy their freedom. The situation is exacerbated when sex workers barely understand the legal status of sex work in their own countries (Overs, 2014).  In Ethiopia, for example:

Some suggested that sex work could not be illegal because, if it was, it could not be practised openly without police interference. Some incorrectly thought that conducting another trade alongside sex work, such as waitressing, means that the laws against prostitution do not apply. Others said that they had been told that there are licences that exempt some venues from laws concerning brothel keeping and living off immoral earnings (there are no such licences). However, many participants had an accurate understanding that there are some laws against soliciting and brothel keeping. Most said they were aware that it is illegal for minors to sell sex and for others to exploit children sexually. (Overs, 2014, p. 18)