Children’s rights must not mean women’s wrongs

Last month the Irish Minister for Children, Frances Fitzgerald, announced that the long-promised referendum on the rights of children would finally be held this year.

The background to this lies in the following provisions of the Irish Constitution:

Article 41
1. 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
…
3. 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
…
Article 42
1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
…
5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

The proposed referendum, as agreed by an all-party parliamentary committee, would leave Article 41 intact but remove those two subsections of Article 42. The replacement text is rather lengthy so I’ll just provide a link rather than post it all here.

The impetus for this change comes from a series of judicial and policy decisions, which have been seen as making it so difficult to interfere with the sacred institution of The Family (and more particularly the marital family) as to effectively tie the State’s hands when it comes to child protection and welfare. A few examples:

• The 2001 case Northwestern Health Board v HW, where the Supreme Court upheld the right of parents to refuse to allow their child undergo the PKU test, a totally safe procedure to detect a disorder that leads to brain damage if untreated.
• An unspeakably horrible case of familial abuse in County Roscommon, revealed a little over a year ago. You can Google it yourself, I don’t have the stomach for it. The mother had obtained an injunction preventing the children being removed from the family home; her affidavit cited the rights that she and her husband, as a married couple, had over their children. Social workers on the case confirmed that Article 42 had a sort of chilling effect on their efforts to protect the children, as it led them to believe they would need to prove a nearly impossible threshold of neglect.
• The 2006 “Baby Ann” case (N v Health Service Executive), in which a two-year-old girl was ordered returned to her birth parents. They had consented to her adoption, but changed their minds and subsequently married – at which point, according to Justice McGuinness, the rights of the family took over from the best interests of the child as the “central issue”. (Actually, on the peculiar facts of this case the birth parents would have had a decent argument even without the constitutional imperative, but there are obvious reasons to be concerned about the court’s emphasis on the primacy of the marital family.)

So you can see why there’s widespread support for amending the Constitution to specifically enshrine the rights of children. What little opposition there is is mainly coming from two of the most repellent groups in Irish society: the xenophobes, who fear the amendment being used to prevent deportation of Africans with minor children; and the uber-Catholics for whom any interference with the marital family is anathema. (It hasn’t gone unnoticed that the list of amendment opponents reads like a Who’s Who of the Irish anti-abortion movement – whose concern for the rights of children clearly ends at birth.) Ironically, although the latter group is far more organised and politically powerful than the former, it is the deportation issue that is actually holding the referendum up. I was present at a private meeting a couple years ago where a then-Cabinet Minister, a current Cabinet Minister and a backbench member of the other current government party all agreed that the wording would have to be changed to assuage those fears.

Irish feminism, on the other hand, seems to be pretty much entirely behdind the amendment, and that’s fairly understandable. After all, the primacy of the marital (read: patriarchal nuclear) family hasn’t exactly done us many favours; and while the amendment won’t remove Article 41.1, it clearly will narrow its scope. But while I wouldn’t argue that we should vote “no”, I do think some important issues have been overlooked in the debate. Consider the following:

• In 2006, the High Court ordered that a Jehovah’s Witness be given a blood transfusion (subscription required) contrary to her express wishes, the first time this was done to a competent adult. Counsel argued and the Judge accepted that her child’s need for a parent overrode her right to refuse medical treatment.
• In the US, women have lost custody of their children for working outside the home, being lesbians and even reporting domestic abuse.
• According to a representative of the fabulous Association for Improvements in the Maternity Services Ireland who I was speaking to recently, some Irish women have been threatened with prosecution – yes, prosecution – if they insisted on giving birth at home rather than under the full control of the professional (and strongly male-dominated, and extremely paternalistic) medical industry.

What these cases all have in common is that they’re examples of the “best interests of the child” being used to further a patriarchal agenda, in which motherhood automatically strips women of their autonomy. Make no mistake about it, this isn’t just the standard assumption of self-sacrifice that having children always entails; it’s the quite deliberate channeling of women with children – whose primary identity is now “mother” – into tightly prescribed roles, with the legal system there to act as enforcer.

I’m being a bit deliberately melodramatic here and I’m not suggesting that passage of this amendment will actually turn us all into Stepford wives. But I don’t think we should be complacent about the risk of “children’s rights” becoming another tool of state misogyny. Let’s not forget that this is a state where woman’s primary role as housewife and mother is actually enshrined in the Constitution (Article 41.2, for readers abroad). Do you trust all of our judges to read the new amendment in a way that protects children’s rights without trampling on women’s? I don’t.

I’m also uneasy about the way this amendment could be read in juxtaposition with Article 40.3.3, on the right to life of the “unborn”. Judging by some of the cases coming out of the US at the moment, it seems that pregnant women in some states might be only a few years away from being forcibly institutionalised to prevent them doing anything that might possibly lead to the birth of a less-than-perfectly-healthy baby, such as having the odd glass of wine or eating too much junk food. It’s a strange sort of logic that allows women to be penalised for “neglecting” foetuses that they have every right (at least on paper) to abort, which I suspect is why those laws aren’t more widespread throughout the US than they are. Here, of course, the constitutional position on abortion is no impediment to such laws – and with a mandate to protect both the rights of (actual) children and the rights of the “unborn”, there is, I think, a worrying possibility that this American trend could catch on here.

Again, and just to be perfectly clear, I’m not saying that feminists should oppose the amendment. In all likelihood I will vote for it myself, on a simple cost-benefit analysis (as in, I think overall it will probably do more good than harm). And I don’t have any suggestions as to how it could be worded to avoid these nightmare outcomes, especially while the odious Articles 40.3.3 and 41.1-2 remain. But we shouldn’t be leaving it to the racists and religious fanatics to highlight its possible unintended consequences. We should be putting the State on notice that although we want to see better protection for Irish children, we are not going to tolerate it becoming yet another tool to oppress Irish women.

It’s different for girls?

Axiom 1 of sex work research: if it doesn’t fit into the male buyer/cisfemale seller paradigm, few people have studied it. There’s limited research into male and trans woman sex workers, but it amounts to only a small minority of overall sex work research. Anything else? Black hole.

Axiom 2: researchers are much more interested in the people who sell sex than the people who buy it.

Put these two together and one thing you get is we know fuck-all about women who buy sex.

There are women who buy sex, and I’m not talking just about sex tourists in the Caribbean or wherever. Women buy sex from men, as is shown by the existence of agencies like Escorts for Women in Sydney. They also buy sex from women, and the always-worth-reading Because I’m A Whore blog has an interesting piece about that (I’ve seen a few other female sex workers describe their experience of woman clients in similar terms). It can certainly be described as far less common than men buying sex from women or even men buying sex from men, but it’s not the non-existent event that the dearth of research might suggest.

And if this phenomenon rarely appears in empirical studies, it is even more notable by its absence from radical feminist theory. Anti-sex work feminists rarely mention it except when prompted to do so; when they must, they usually engage in all sorts of contortionism to show how this too, to the extent it is relevant at all, merely reinforces women’s victimisation. One of the few to give any amount of thought to the issue is Sheila Jeffreys, in her influential book The Idea of Prostitution:

The numbers of women using men in prostitution seem too tiny to be of note, and women using women are mostly doing so as part of a couple where the man wants a threesome, and is still serving his own sexual interests.

These assertions are uncited, and the latter runs contrary to what Jane of Because I’m A Whore has to say about it: that the female partner’s curiosity is the impetus for most of the “threesomes” she’s been professionally involved in (of course, Jeffreys would probably not believe that anyway). Jeffreys only reluctantly acknowledges the existence of lesbian sex-buyers, saying that

lesbians have not, historically, been johns

and explaining them away as either victims themselves who seek to “recycle” their abuse or, essentially, as gender traitors. These brief mentions aside, the bulk of the chapter focuses on male and trans woman sex workers, who are described as being very much like cis-female sex workers when they are coerced and abused in prostitution, and very much unlike cis-female sex workers when they are not.

This in itself is interesting, because in her analysis there is room for commercial sex to take place between two men on a non-exploitative basis. She cites studies to the effect that male (but not female) sex workers regularly experience orgasm, engage in sex work for the purpose of sexual pleasure, suffer little violence from their clients and see their activities as ego-boosting rather than stigmatising. Moreover, she asserts, in contrast to female sexual behaviour,

Male gay sexual practice, which values quick, impersonal contacts in public places, does not differ greatly in procedure from what will take place for money.

Jeffreys doesn’t deny that male sex workers can suffer abuse just like female sex workers, but what she appears to be saying is that abuse is not inherent in the male buyer/male seller relationship, the way it is when the seller is a woman (and irrespective of the gender of her client). In other words, women cannot sell sex without being exploited; men can and, often, do.

To my mind, this really calls into question the assertion by many radical feminists that the problem they have with sex work isn’t the sex, it’s the power imbalance. They often have to defend themselves against charges of prudishness and sexual morality, in part because of the fact that they’re lined up with religious conservatives on the issue (who really are mainly bothered about the sex). I have been generally willing to give them the benefit of the doubt on this – but if Jeffreys’s views are typical, I have to wonder. I can see the power issue when it comes to paid sex between men and women, and between men and boys, men and very vulnerable men, men and trans women. What I cannot see is how it possible to decree that two men on the same “level” can have non-exploitative paid sex, while two women cannot. For Jeffreys, it really seems to come down to an assumption that women just don’t do that sort of thing in their natural womanly behaviour (as opposed to gay men, for whom such activity is perfectly normal, according to the quote above). And that really is about the sex.

Her position also contrasts sharply with the other issues on which feminists are often criticised for ignoring male “victims”. I’m thinking specifically of rape and domestic violence: although men can suffer from them too, few feminists – radical or otherwise – would deny their largely gendered nature. But I think it’s safe to assume that feminists (and pretty much everyone else with a conscience) would see rape and domestic violence as inherent wrongs; their gendered aspect explains both why they happen so frequently and why women are their usual victims, but does not make them “wrong” where they would otherwise be acceptable. No feminist would write a book called The Idea of Rape and include in it a chapter claiming that men can be raped non-abusively. There is no such thing as non-abusive rape or domestic violence; but implicitly Jeffreys accepts that there is such a thing as non-abusive prostitution – it just can’t involve any women (at least in the role of seller).

Why is this important? Because theories do not, as much as I would usually like them to do so, remain simply abstract expressions of some people’s opinions. Theories often become policies, and affect our laws. And while it’s all very well for theorists to ignore those examples that don’t support their conclusions, or to deem their numbers “too tiny to be of note”, those who make and interpret the law don’t have that luxury.

What this means is that we can have laws that prohibit commercial sex altogether, or that tolerate certain aspects of it – but we cannot make those laws depend on the gender of either party. It’s possible that gender-specific prostitution laws might be on the books in some countries, but it’s pretty hard to imagine them surviving constitutional challenge in a liberal democracy. In fact, I’m aware of a few cases where an equality-based challenge – i.e., an argument that the law breaches equality requirements because of its differential impact on men and women – has failed precisely because there is no discrimination in the law itself. An example is the South African case S v Jordan, where it was held that

a gender neutral provision…cannot be said to be discriminating on the basis of gender, simply because the majority of those who violate such a statute happen to be women.

So getting back to places like Escorts for Women: if the favoured model of anti-sex-work feminists was brought in, these places too would have to be outlawed – but it would be the woman buying sex, rather than the man selling it, who would face prison. The woman would be deemed the criminal, the predator, the sex offender; and the man who had sex with her and took her money would be the “victim”.

Would these feminists be terribly be bothered by this? Perhaps they would not. After all, they do not believe there are many women buying sex from men in the first place (although they cannot know this with absolute certainty, because there is so little research) – and since the whole notion is so foreign to them, perhaps they would find it impossible to sympathise with the woman in this position. Perhaps they would also argue that it is a reasonable price to pay for legislation to address the much larger phenomenon of men buying sex with women. It seems strange to me that any feminist would be content with a law which allowed police to raid a premises where a man was having consensual sex with a woman, remove the woman in handcuffs, and allow the man to lie back, smoke a cigarette and count the money he made from the encounter. But maybe it seems perfectly logical to them. It’s hard to know, since they simply never address the issue.

As for women who buy sex from women? When they do so alone, Jeffreys believes they are exploiting other women, so I guess that means she wouldn’t mind criminalising them. But I also presume that in a threesome situation she would want the female partner to be deemed a “victim” equally alongside the sex worker, since she believes it is inevitably the man who instigates such activities. Again, though, I doubt that this would wash from a legal perspective.

This may all seem very hypothetical, and probably it is. Few clients of sex workers are ever arrested, even in Sweden; women are only a very small proportion of clients, so the odds of them ever being arrested are probably infinitesimal. But it tends to be precisely these “hard” cases that test laws, so it’s wise to at least think about how we would deal with them.

And beyond that, women who buy sex really do challenge our thinking about commercial sex, its role in society and what (if anything) the law should do about it. Maybe that’s not true for radical feminists, but it is for the bulk of the rest of us who don’t have One Single Theory That Can Explain Everything. When Jeffreys only half-addresses the issue, and most other radfems ignore it completely, it just looks like they either don’t realise it exists, or they want to dodge it. And that undermines the credibility of their position on prostitution. If they want to convince people who don’t already share their certainty that it all goes back to the patriarchy, it’s in their own interest to develop their analysis on this. Perhaps they have and I just haven’t seen it yet, but if that’s the case I’m sure one of FeministIre’s readers will kindly point me in the right direction.

Questioning quotas

The question of gender quotas in politics raised its head in Ireland again last week, as Labour TD Joanna Tuffy – who seems to fancy herself something of a maverick, at least when it doesn’t require her to actually defy the party whip – went all over the media arguing against the consensus that seemingly all parties have signed up to. We have a low rate of female representation in our legislature, despite all the main parties having some sort of internal strategy to promote women’s candidacy, so it’s not surprising that many believe it’s time to move beyond voluntary codes. The Programme for Government of the current coalition states that for future elections, funding for political parties will be tied to the percentage of female candidates they run.

Tuffy has made no secret of her opposition to this policy, and apparently it isn’t only quotas she objects to. Earlier this month an email went around to the female parliamentarians, proposing a meeting to discuss what steps they could take to promote women’s participation in politics. Tuffy replied, cc’ing not only the recipients of the original email but every male parliamentarian as well (as if she was exposing some naughty secret being hidden from them), saying that she would not take part in any meeting from which men were excluded. Predictably, she compared it to men holding a meeting and excluding women, and suggested that gender was irrelevant to their roles as public representatives. That the presence of men might hinder a full and frank discussion as to why women sometimes don’t feel comfortable in politics – possibly including, for example, the boorish and lecherous behaviour of certain male politicians (something I’ve experienced myself) – didn’t seem to occur to her or, if it did, she obviously didn’t think it was important.

Last week she addressed the quota issue directly in an opinion piece titled Gender quotas do women no favours – and undermine democracy. Her arguments are mostly pretty weak, but I’m sure they’ve been forensically picked apart elsewhere so I’ll just briefly highlight the glaring flaws:

Gender quotas bypass the voter’s right to decide, and impose a conclusion on him or her…The proposed quotas will mean that candidates will be ruled out on grounds of gender, and legislation will make such discrimination mandatory. This appears to conflict with Article 16.1.3 of the Constitution, which states that no law shall be enacted placing any citizen under disability or incapacity for membership of the Dáil on grounds of gender.

I would accept the validity of these arguments if there was a quota on the number of women that had to be elected. But that’s not what the government is proposing. Political parties will have to select more female candidates but the voter is under no obligation to elect them. Equally, a candidate is under no obligation to run for any particular party (or indeed, for any party at all): if a man can’t get selected for one party because of the gender quota he can still run for another party, or as an independent. If this was the US, where it’s the voters who select the party’s candidates and independents almost never have a hope, Tuffy would have a point here. But not under the Irish electoral system.

Which isn’t to say the Supreme Court might not ultimately agree with her – since their ruling that it’s ok for Portmarnock Golf Club to discriminate against women as long as it defines itself as not a golf club but rather a men’s club that happens to play golf, I’ve given up expecting logic from them in equality decisions – but it’s certainly not self-evident that they will, as Tuffy seems to think.

She next asserts that

gender quotas will give party leaders more control over candidate selection.

It’s a weak argument, made weaker by the lack of any explanation as to how or why they will do so. First of all, anyone who thinks Irish party leaders don’t already have all the control they need over candidate selection has, IMHO, a very naive view of how electoral politics actually works in this country. Secondly, this argument could work both ways: quotas could actually lessen party leaders’ control where too many of the favoured candidates were of a single gender. I suppose what she’s getting at is that under a quota system it isn’t simply a case of running the candidate who gets the most votes at the selection convention, but it isn’t as simple as that under our present system either. I doubt Tuffy is really unaware of all the manipulation that goes on behind the scenes at those “conventions”.

She continues with:

even if no woman had ever lost out because of gender quotas, that would not make them right. Positive discrimination is discrimination all the same.

Broken down, this argument goes like this: Discrimination is wrong; quotas are a type of discrimination; therefore quotas are wrong. It’s similar to one of the most annoyingly simplistic anti-choice arguments (the taking of human life is wrong; the foetus is a human life; therefore abortion is wrong). It reaches its conclusion by assuming that everyone agrees with its premises, unconditionally and without any need to justify them.

The problem of course is that there are plenty of circumstances in which discrimination is not necessarily wrong – or, at least, it isn’t seen as being necessarily wrong. These can range from the micro level (a woman who will only date men discriminates against other women in her choice of romantic/sexual partners) to the macro (a state that only allows its own nationals to enter without visas discriminates against foreign nationals). They already include the electoral level (the Labour Party is entitled to refuse to select Fine Gael members as candidates). If any of these examples are accepted as not being “wrong”, then the blanket assumption that discrimination is wrong is unsustainable – and therefore a statement like “positive discrimination is still discrimination” tells us absolutely nothing about why that is a problem.

She writes,

Those that argue for quotas claim that women don’t win selection conventions. Where is the evidence for this? Where the problem really lies is in the fact that not enough women choose to run for election.

I don’t have the facts and figures about women winning selection conventions, but I accept that the refusal to run at all is probably a bigger problem. It’s odd, though, that she doesn’t see the value in having spaces where women can openly discuss the reasons for that refusal. Does she think it will just sort itself out?

I nearly split a gut reading this part:

Quotas treat women as if they can’t hack it a party’s selection convention, like a man can. They decree that women must be selected on the basis of their gender, and this does them a disservice. Women, just like men, should be chosen on the basis of their qualities as individuals and their ability to persuade voters.

I honestly have to wonder what planet she is on to think that candidates are presently chosen for those reasons. Is that why Maurice “I’m sorry we legalised divorce” Ahern (Bertie’s brother) was selected to run in the Dublin Central by-election over the far more capable Mary Fitzpatrick? Is it just a coincidence that when a sitting politician gets a running mate, the candidate selected for that role is often the one who poses the least threat to the incumbent? The pretence that there is a meritocracy at work in the current system is possibly the weakest of all arguments.

The worst thing about Tuffy’s column is that it is so poorly argued it suggests that there aren’t any valid reasons to oppose quotas, or at least, to question their value. And there are some reasons. Tuffy hints at one when she says

A target is imposed from the top – but the reality on the ground stays the same because the issue is not tackled from the bottom up.

Unfortunately, since she fails to really think this argument through, the reader is left with the suggestion that this alone is a reason to oppose quotas. And it’s not. It’s an argument not to make quotas the sole “solution” to the issue, but not to exclude them as part of the solution. What she could have pointed out is the danger that quotas could mask the “reality on the ground”, could make it look as though there is no longer a problem and hence no need to also tackle the issue from the bottom up. This has in fact been my own experience of quotas: they are essentially a cosmetic solution, and too often they wind up being not a companion to, but instead a substitute for, more substantial measures.

Part of the reason for this, I think, is that quota supporters often have different notions of what the main problem is. Feminists want more women in politics so as to get more pro-woman policies. But in seeking quotas they are allying themselves with people who aren’t feminists, don’t necessarily support such policies and think that once you’ve sorted out the male-female imbalance in public life, that is the problem dealt with.

The case for quotas as a means of advancing women’s issues is often made by pointing to the Nordic countries, which have high proportions of women in their parliaments and also have very progressive policies around things like parental leave. But that country chart I linked to above shows that things aren’t quite as cut and dried as that. There are many countries whose ranking does not appear to coincide with any particular level of commitment to women’s rights. Andorra, at number two, still outlaws abortion under any circumstance except risk to life; only this month in Rwanda, the highest-ranked country, three teenage girls received one-year prison sentences for the same “crime”. It could well be that things would be even worse for women in those countries if they had less gender-balanced parliaments, but a female majority that won’t even remove laws that criminalise reproductive autonomy is hardly a thing worth aspiring to.

The problem with expecting more women in politics to lead to more feminist policies is, of course, that not all women are feminists. Some in fact are the exact opposite – but a quota policy won’t discriminate between the two (you see Joanna, that’s an example of “positive” discrimination!). Who is to say that the consequences of this policy wouldn’t be more Lucinda Creightons? What if men who have actively supported feminist causes were forced out in favour of more conservative female colleagues?

This is one place where my suspicion of quotas differs from Joanna Tuffy’s. She writes that

Gender quotas subvert democracy by making the ends more important than the means.

To my mind, equal representation of women in political life is a means and not an end. The “end” will be achieved when equality between men and women (and those outside the binary) is no more of an issue than equality between the blue-eyed and the green-eyed. Gender quotas could be a step towards getting us there, but they’re far from an end in themselves. And depending on how they operate in practice, in terms of the candidates who actually benefit from them, there is always the possibility that they could make things worse.

And though I don’t like the way quota opponents always resort to whataboutery in these debates, I also don’t think we can ignore the shockingly poor representation of ethnic minorities in Irish politics. As far as I can make out, our parliament has two members who are half-Irish and half-something else, one American of apparently Italian descent and everyone else is of an ethnic Irish and/or British background. There are no Travellers, either. The Houses of the Oireachtas must be one of the least diverse employers of its size in the entire country. And local government – where there isn’t even a citizenship requirement – is little better. Why isn’t this seen as at least as big a scandal as the under-representation of women? If gender quotas are introduced, is there really a good argument as to why ethnic minority quotas shouldn’t be next?

Let me be clear – I’m not against quotas, per se. I’m certainly not opposed to them on principle, as Tuffy is. What I question is the enthusiasm that so many Irish feminists have for them. It is especially galling seeing the energy being spent on this campaign by Labour Women, who could be doing much more for gender equality by stopping their party imposing budgetary measures which will have a particularly devastating impact on women. It is hard to take seriously their claims of supporting women’s interests by trying to get more women into the exclusive club at Leinster House (starting salary: €100K plus expenses) at a time when their (female) Social Welfare Minister is poised to slash the incomes of the women on the very lowest rungs of society.

Ultimately, what it comes down to is this. Women are oppressed because we live in a capitalist and patriarchal society. It will still be a capitalist and patriarchal society after the quota system is introduced (as appears inevitable). The main difference is that there will be more women administering capitalism and patriarchy. Is that better than fewer women? Sure, if they administer it in a way that does women less harm. But there’s no guarantee that they will, and anyway, my feminism is a lot more ambitious than that.

Of course, I don’t expect Joanna Tuffy to understand.