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On the Basis of…. Sex Discrimination in 2019?

Public bodies in the 21st century still tirelessly fight the uphill battle for gender equality.
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Does celebrating our small victories help us suppress our recent indiscretions? Source: Sharon Farmer (via Picryl)

By Hannah Newberry

On the Basis of Sex is one of two hugely important movies to drop this year, featuring Ruth Bader Ginsburg. If you’re not already familiar with who this woman is or why it’s so crucial that we recognise her, she is known as representing the ‘liberal wing’ of the Supreme Court. And more importantly, she’s a woman. Not only does Ms Ginsburg stand proud as the potential beginnings of a true gender balance in a legal environment that overwhelmingly favours men, but she has made every adversarial effort possible to be a tangible stick in the mud when archaic precedent rears its head. Girl power.

Noted for her poignant dissents on controversial case law, she has influenced many US rulings on behalf of systematically underrepresented bodies such as Friends of the Earth, as well as introducing a much needed feminist perspective in a court that is relied upon to introduce law on an impartial basis. One of her most noted contributions to the court was striking down Nebraska’s abortion laws regarding partial-births, where she held that any ‘undue burden’ on a woman seeking an abortion, such as fear of prosecution, was unconstitutional. On the Basis of Sex tackles gender discrimination as a story that juggles not only Ginsburg’s rise to notability, but also the harrowing reality that there is still a legal ‘bogeyman’ that thrives on the reluctance of adequate reform in the 21st century – sex discrimination.

Moving on from the biographical nature of the film, it leaves a lot to be said for the sex discrimination that still exists today. While Bader Ginsburg fought hard, it has been impossible to find unanimous agreement surrounding the need to investigate gender disparity in the workplace. A tribunal in Cardiff only this week delivered sizeable compensation of £19,000 to a claimant, Ms Renowden, who was refused a promotion based on her gender with sufficient evidence for it to have clear legal standing. Companies feeling safe enough within current legislation to overtly discriminate against women paints a worrying picture that we are missing our opportunities to hold these people to account every day.

Judge Wayne Beard maintained in this case that balancing genders in the workplace is a phenomenon that remains, ‘not properly understood’ which simply isn’t good enough. When the law presents a vacuum where we need to assert rights for the general wellbeing of people beholden to it, why does nobody step up to the fore and enforce a change? ‘Not understanding’ gender discrimination is simply plausible deniability that’s been exploited to go down the most nonsensical route ever.

In 2017, there was an enquiry into why sexual discrimination cases actually declined despite the increasing publicity of these types of matters. There is a growing dismissal of cases under the guise of ‘no reasonable cause’, where there seems to be a lack of evidence to allow the claim to stand in the first place. While the actual number of claims brought has decreased, the ‘reasonable cause’ scapegoat has become evidently prominent. This is a collective example of employers, male employees and CEOs finding themselves at risk of litigation, who have discovered a loophole whereby they are allowed to decipher what constitutes ‘actual’ evidence. Perhaps it’s true to say that after the recent scandals involving Brett Kavanaugh, male influence is successfully manifesting itself in sensitive legal contentions and somehow doing it successfully.

It’s a hard issue to resolve immediately as social stigmas mean that many women would prefer to find another job rather than ‘getting emotional’ or ‘kicking up a fuss’. Regardless, we shouldn’t be deeming these situations trivial just because they falter in comparison to the gender pay gap issues we are still attempting to publicise and countermand on a daily basis. The claimants of the future need to feel empowered enough to look at the potential for minor litigation around sex discrimination and deem it worthy of their time.

Bader Ginsburg is a true icon for women that seek to settle in positions of power where they can make consistent attempts to enact change. However before this is a feasible option for any women that presents the ambition and the work ethic to succeed, we need to address the fundamental and neglected errors in the legal system that works to quash these attempts. We are not just appreciating, but almost re-celebrating our small successes. A female Supreme Court Justice is excellent, but doesn’t need to be the be-all, end-all when it’s only the smallest step forward on a ladder of legal shortcomings.

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