Judgment and gender in New Zealand - asking ‘the woman question’ in law

The Feminist Judgments Project Aotearoa is exploring how the law might play out differently if it were interpreted through a feminist or mana wahine lens.

More than two-thirds of judges in New Zealand are male, so does gender identity influence the outcome of legal cases? New Zealand is not alone in considering the potential impact of gender bias from a judiciary made up predominantly of pākehā men.

The Feminist Judgments Project Aotearoa is part of a movement that started in Canada and has spread not only to New Zealand, but also the United States of America, the United Kingdom and Australia. It is putting justice systems under the microscope by reimagining and rewriting judicial decisions from a feminist and mana wahine perspective.

In all, 25 existing legal decisions are being reworked as part of the Feminist Judgments Project Aotearoa – Te Rino: The Two-Stranded Rope.

These are due to be published in 2017 as an edited collection of judgments, together with commentaries, for use as both a potential teaching resource and source reference for the judiciary.

The project’s two strands consist of a general feminist perspective and a mana wahine strand examining judgments of particular interest to Māori women, and in which the feminist judges show sensitivity to both the cultural and the gender contexts of the cases they are rewriting.

When Dr Rhonda Powell and Professor Elisabeth McDonald of the UC School of Law began framing the project, they ensured a Māori legal perspective was included from the outset by approaching Māmari Stephens of Victoria University of Wellington to lead the mana wahine strand. Rounding out the project leadership team is Professor Rosemary Hunter from Queen Mary University of London, who has a deep involvement with this global movement.

Interest in the project has been strong since it began, with funding from the New Zealand Law Foundation in late 2015. Five female judges attended the initial judgment writing workshop in Wellington in February 2016.

Dr Powell says about 60 people are involved in the project.

“We asked people to tell us what case they wanted to work on and why. We have legal practitioners, academics, a retired judge and government lawyers. Every law school in New Zealand has at least one person involved.”

Unlike most other countries that have undertaken similar projects, Feminist Judgments Project Aotearoa also includes male feminist judges.

“There is a school of thought that a man can’t be a feminist because so much of it is about the lived experience of being a woman. We thought we’d test that out and so we have a handful of men writing feminist judgments.”

For example, retired Family Court Judge John Adams is rewriting one of his own judgments for the project.

“It was quite an important judgment that set the course of a particular issue to do with relationship property division.”

Other judgments being reviewed encompass commercial, medical and family law. Each is based on established legal method and precedent and so could, in theory, have been written by a judge at the time of the original decision. All draft judgments have been shared, reviewed and discussed at workshops and each writer paired with a commentator.

As a collaborative exercise, Dr Powell says the project has been a real success.

“In the sciences they do collaborative work all the time, whereas legal scholars traditionally work on their own. A project like this is unique in that it involves every single law school and 60 different Aotearoa New Zealand legal scholars participating together.”

Progress augurs well for future such collaborations, she says.

“Above all though, we hope this project will encourage lawyers and judges to reflect on the potential gender and cultural impact of their work and issues of implicit bias.”

The project was the subject of a 2016 UC Connect public panel discussion, and a video of the Rewriting Judgements - Feminism in Action discussion is on the UC Connect YouTube channel.

Wahine Law Week

Academics from the UC Law faculty involved in the Feminist Judgments Project Aotearoa will talk about their work as part of a panel for Wahine Law Week on Tuesday 16 May, 2pm in Laws 236, at the University of Canterbury’s Ilam campus.

Wahine Law Week, 15 – 19 May at the University of Canterbury, celebrates women in law. The week of events and seminars is hosted by five UC student law societies and UC Law to celebrate the achievements of women in the law, both past and present. Despite making up 60% of law graduates, the place of women in the law profession is still a work in progress. The week aims to inspire and educate UC undergraduates and to foster connections with women currently working in the legal profession. All proceeds raised from the Wahine Law Week events will be donated to family violence service Aviva.

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How would judges integrate feminism or mana wahine in practice?

They might do so by:

• asking ‘the woman question’ and considering the gendered implications of rules and practices that may only have the appearance of neutrality

• considering the cultural context of cases

• taking into account women’s interests

• listening to the perspective of women litigants and how they tell their stories so as to gain a deeper understanding of how women experience the law

• giving agency to women litigants

• challenging gender bias and stereotypes and confronting sexism

• contextualising legal decisions by going beyond abstract legal reasoning and considering the reality of people’s lives

• addressing injustice and inequality

(Source: Feminist Judgments Project Aotearoa – Te Rino: The Two-Stranded Rope)

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