In 1765, Sir William Blackstone, the pre-eminent legal commentator, described married women as ‘so great a favourite’ of the English law that she was owed a different status to men for her protection and benefit. The argument that discriminatory laws and policies serve to protect women rather than exclude them has remained surprisingly persistent.
Until 1982, women who wanted to drink in El Vino’s on London’s Fleet Street had to sit in the back and wait for table service – or ask a man to go to the bar for them. The justification was supposedly based on chivalry: the management felt that the rowdy atmosphere of the bar was unsuitable for women.
Parliament passed the Sex Discrimination Act in 1975, which made it unlawful for a person to discriminate against women when providing goods, facilities or services to the public. Anne Coote and Tess Gill brought a claim arguing that El Vino’s policy was a breach of the Sex Discrimination Act. They lost at first instance, but the Court of Appeal agreed with Coote and Gill, finding that the El Vino’s policy deprived women of the opportunity to enjoy the bar to the same extent as male customers and it was thus unlawful.
El Vino’s didn’t take the judgment very well. They continued to ban Coote and Gill on the grounds that they were troublemakers. The manager was quoted as saying that he would serve any women who ‘genuinely wanted to drink at the bar’ but not those who wanted to make trouble or a ‘feminist point’. I should add that El Vino’s is now very much open to all – and well worth a visit if you are in the area.
Ever wondered why the legendary 1957 film Twelve Angry Men wasn’t called Six Angry Men and Six Angry Women? Or just Twelve Angry People?
This US Supreme Court case from 1961 might help to explain why. In Hoyt v Florida, the highest court in the USA upheld a Florida law under which women had to register for jury service, whereas men were registered automatically. The justification was that a women should be allowed to put their household duties first. The result was that of 46,000 women in Mrs Hoyt’s district who were eligible for jury service, only 220 were actually registered.
Mrs Hoyt was convicted by an all-male jury of murdering her abusive husband. She appealed to the Supreme Court on the grounds that Florida’s jury law had interfered with her constitutional right to a fair trial.
The Supreme Court disagreed, saying: ‘We cannot see that it is constitutionally impermissible for a state, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civil duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.’
This was the position of US law until it was overturned by Taylor v Louisianain 1975. A similar law existed in Gibraltar until it was overturned by the Privy Council in 2003.
Rape and consent
Sir Matthew Hale was a barrister and a senior judge under Charles I, Oliver Cromwell and Charles II. He died in 1676. But his views on rape were thought to be good law as recently as 25 years ago.
In his hugely influential History of the Pleas of the Crown, Sir Matthew wrote:
“…the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.“
In other words, a woman gave her husband her consent when she married him and it could not be retracted so long as they remained married. For over 300 years, the courts took Sir Matthew Hale’s view as read, even though in many of the cases before them, the wife was separated from the husband at the time of the alleged rape.
This changed in 1991, in the case of R v R  UKHL 12. Lord Keith of Kinkel and four other Law Lords unanimously found that Sir Matthew Hale’s explanation of the law had been impliedly repealed by the Sexual Offences (Amendment) Act 1976. Therefore, the cases since 1976 had all been wrongly decided.
Why do these historical cases matter? Well, they weren’t that long ago – in living memory for many people. And as R v R shows, a legal system based on precedent can leave anachronistic ideas unchallenged for literally centuries.
And sexist laws are still prevalent in many parts of the world, sometimes in legal systems based on our own. For example, marital rape is a civil rather than a criminal offence in India.
In Malta (an EU member state and another former British colony) a man who rapes a woman can be absolved of the crime if he marries his victim.
In Russia, women are not permitted to do ‘heavy work’ or ‘work in harmful or dangerous conditions’. In fact, there are 456 types of work women may not engage in, including driving trains; operating bulldozers, tractors and trucks; and working as a professional sailor.
In 1990, 189 countries, including the UK, India, Malta and Russia declared that laws which discriminate against women undermine equality. The countries pledged to “revoke any remaining laws that discriminate on the basis of sex.”
Earlier this month the campaign group Equality Now reported that many discriminatory laws still remain – and a few new ones have been added. If you want to find out more, you can read their excellent report here.