Feminist Litigation as a Strategic Tool for Advancing Gender Justice: Teaching Gender and the Law at UKZN – A Reflective Discourse
Paper presented at the 2013 CLEA Conference in Durban
School of Law, University of KwaZulu-Natal
Historically, in South Africa, feminist policy advocates utilized political processes to defend and secure rights for women. However, the decline in the opportunities for change through political means was marked by a retreat from the political arena towards an increasing reliance on the courts. The advent of the Constitution in 1994, with its justiciable Bill of Rights provided a significant opportunity for using litigation as a transformative strategy. Most feminist legal scholars agree that the law is both responsive and resistant to feminist approaches and perspectives (Mossman:1998). It is for this reason that the law and legal struggles cannot be ignored.
Drawing on feminist theory of law, this article examines and highlights the teaching approach adopted in an elective course, Gender & The Law, with specific reference to the South African Constitutional Court’s responsiveness and resistance to women’s rights claims. Although the Constitutional Court has, through some transformative judgments, dislodged some traditional understandings of gender relations, it has at the same time given judgments which ultimately reinforce traditional gender relations. The Court may be accused, in this regard, of having fallen short in its application of key aspects of feminist legal reasoning in a number of respects, rendering aspects of women’s lives at times, immune to legal intervention. For example, the adoption of formalistic reasoning with little or no regard for substantive equality, a lack of contextual understandings, failing to acknowledge the relationship between legal rules and stereotypes, failing to apply the concept of intersectionality especially in socio-economic rights cases which have had a particularly detrimental impact on black and poor women, to name but a few.
Despite this, the article concludes that litigation remains a significant space as a strategy for change, but that the need for mainstreaming gender sensitivity training in the core law curriculum is urgent.