Sydney Life

"If only 12% of barristers are women and we have only one woman on the High Court, does that imply that women are just overall less meritorious? No, I think there is a much more deeply entrenched cultural system which has traditionally meant that women are held back from achieving to their full capabilities."

Could babies be the big problem??

I would consider myself someone who is fairly career orientated at the moment, but when my biological clock starts ticking (and provided i have a husband to make babies with) I might have to temporarily abandon the work force.

I agree that gender equality should be our goal, but i think that a lot of people have a misconception of what "equality" really means these days. I think both men and women have different strong areas, and we should utilise that, not try to make them the same.

The thing i want to do most in life is to be a mother, and to work in the home. I feel that our society forces women into higher education when that may not really be what they desire. I often feel looked down on for my decision. So when do we turn around and realise that maybe the pendulum went too far in the other direction?

However, those amendments that you mentioned seem great. Because they say "at least half", it does point to equality, in the most literal sense.

I read Ghassan’s post above with great interest. I declined to attend the SULS AGM last week because I, knowing that I could not bring myself to vote in favour of the SULS constitutional amendments, did not want cause a scene by voting against them and thereby offending friends and colleagues in the audience. But now that the topic has been raised, perhaps now I should outline why I do not support 'affirmative action'.

Let me first raise a problem of terminology. I shall dispense with euphemistic pretence: in this comment I shall not use the term affirmative action; rather, I am going to refer to the policy position designated by that term with the phrase pro-female sex discrimination. I favour this latter identifying phrase because I believe that the affirmative action moniker creates confusion by implying that its opponents, by definition, support negative action, or a regression in the opportunities afforded to women and other minority groups. The use of the term affirmative action also distances the policies to which it refers from the opprobrium associated with the idea of sex discrimination and, I argue, such distancing is unhelpful at best, and duplicitous at worst: affirmative action is a form of discrimination and it must be judged accordingly. If, upon such judgement, affirmative action emerges as a legitimate form of discrimination, then so be it. Conversely, if affirmative action is found to be wanting in legitimacy, then it should face the same condemnation as other forms of illegitimate discrimination. In either case, as I say, I think the most responsible nomenclatural action is to collect these policies under the title of pro-female sex discrimination.

I shall now turn to my objections.

The Democratic Legitimacy of Student Organisations

The Sydney University Law Society (SULS), the organisation which has recently adopted a programme of constitutionally mandated pro-female sex discrimination, was established with the express mission ‘to represent the interests of undergraduate, graduate and postgraduate students enrolled in the Faculty’, a goal for which SULS still purports to strive. As such, it is clear that SULS is a student representative body not in the sense that it is representative of the composition of the student body, but that it is representative of the wishes of that body (a wish being the conscious manifestation of interests). This relationship between the wishes of the membership base and that membership base’s representation at an executive level is the characteristic of a democratic organisation. It follows that the wishes of the membership ought to be the paramount determiner of the composition of the executive structure.

It does not follow that the executive must exhibit any degree of what I call reflective composition. That is, an executive composition that reflects the divisions (such as sex, sexuality, ethnicity, religion) among its membership. It further follows that merely because the membership base may be split 6:4 in its ratio of X:Y (and one can substitute any characteristic for X and Y; biological sex being the relevant characteristic here), there is no requirement under democratic logic for that group’s leadership to be split in the same X:Y = 6:4 ratio.

Of course, should the SULS membership choose to elect an executive that is split in such a way between men and women, then that executive would be perfectly legitimate, but its legitimacy would stem from the democratic validity of the selection not the character of the ultimate composition of the executive.

To this democracy argument I have often heard the rebuttal that while it is valid, the argument fails to take into consideration the structural forces that—even in enlightened democratic organisations such as SULS—act against the democratic election of women into executive positions. In short, there is a line of rebuttal that runs: even if one accepts the democratic critique of pro-female sex discrimination, pro-female sex discrimination is still justified because democratic instruments are not sufficient to naturally result in the morally good ends achieved by pro-female sex discrimination. If this were true, if the democratic processes within SULS were deficient because of an innate bias against the normal democratic election of women, then I would agree that it might be possible to see a legitimate reason for the introduction of pro-female sex discrimination policies.

However, observation disproves the pro-female sex discrimination camp’s claim: even without a constitutional requirement to fill the upper reaches of the SULS leadership with a set proportion of women the SULS members produced a SULS Committee in 2006 that was divided, male:female in the ratio 5:4 (my source here is the ‘SULS Committee for 2006’ page of the SULS website). In other words, the representative equality that the introduction of pro-female sex discrimination claims to achieve has already been demonstrated to be achievable organically, without the need to resort to mandated quotas.

Cui bono? Or, the myth of the North Shore subaltern

A test that is sometimes adopted in law to judge the ultimate purpose of an action is encapsulated in the Latin maxim, cui bono?, a question meaning ‘for whose benefit?’ It is apt to aim this legal question at SULS. And so I ask, who will benefit from the introduction of these policies of pro-female sex discrimination? The answer is not, as one might first assume given the rhetoric of some pro-female sex discrimination proponents, those women who suffer most from the pre-feminism history of female oppression. I think the most succinct analysis of this argument is offered by the Stanford Encyclopaedia of Philosophy:

Pro-female sex discrimination when seen as compensation [for past injustices] looks perverse … since it benefits individuals (… women possessing good education credentials) least likely to be harmed by past wrongs while it burdens individuals (younger … male applicants) least likely to be responsible for past wrongs. Instead of doing justice, preferential treatment violates rights (the right of an applicant to ‘equal consideration’, the right of the maximally competent person to an open position, the right of everyone to equal opportunity) and confounds desert … by disconnecting outcomes from actual liability and damage. [Footnotes omitted.]

In other words, the ‘oppressed’ woman, while a reality with which our institutions must deal, is not going to be the beneficiary of these SULS constitutional amendments. The Subaltern of Philip Street—if she exists—is not going to rush in to place her name on a ticket running for the SULS executive. The women executive members mandated by these amendments are going to be drawn from the same pool of women who have traditionally appeared on the SULS executive: well-educated, highly articulate women who have been the beneficiaries of the highest standards of education (usually in the selective or private systems) and who (often, though not exclusively) come from privileged socio-economic backgrounds. That such intelligent, confident leaders exist within the female portion of my cohort is a cause for rejoicing, let us be in no doubt about that. However, establishing a system of pro-female sex discrimination and justifying that system with the claim that it seeks to redress a history of oppression is a misrepresentation of that system’s genuine effect.

Morality for the Middle Class

SULS, like many groups that have adopted pro-female sex discrimination policies, is an organisation of substantial means. Each year SULS receives thousands of dollars in funding from many sources. Rather than introducing tokenistic pro-female sex discrimination policies, if SULS were seriously interested in redressing fundamental unfairness in the opportunities afforded to oppressed groups, they should be looking at the distribution of their sizeable budget. Perhaps one of the several parties or one of the many junkets could be foregone and funds invested, instead, in the provision of scholarships, book grants and the like for students who themselves are genuinely the victims of societal oppression.

But will such self-denial on the part of the SULS executive and SULS members occur? I doubt it. When distilled, the interest in pro-female sex discrimination is not an interest in one's oppressed neighbour; it is an interest in oneself. That is, at a fundamental level, SULS' constitutional amendments serve primarily to assuage the guilt of the privileged, not necessarily to promote the interests of the oppressed. It makes us, SULS members, all feel better to be able to point to a few typed lines in our constitution and, with the full force of our own sense of morality say: ‘Look! Our pro-female sex discrimination provisions are proof of our commitment to supporting the provision of opportunity to those oppressed members of our society!’

In reality, SULS has succeeded in achieving a win-win-win outcome for itself. SULS can claim the mantle of an organisation genuinely concerned with addressing the systemic barriers and societal injustices caused by previous generations of misogynists while at the same time not actually having to change the status quo (as already demonstrated, there has been wide-spread success of women candidates in the SULS Committee; see above). And, all the while, SULS is able to retain enough cash in the kitty for yet one more seemingly endless season of cocktail nights and Easter/Christmas/Pre-Exam/Post-Exam parties.

On paper, SULS appears to be a paragon of equal-opportunity virtue. In the flesh, the organisation is just as (dis)interested in redressing the fundamental failings of our academic, legal, professional and social structures as it has always been. Only now, SULS’ leadership clique has pro-female sex discrimination and its supposed cache of virtue to draw on, alleviating the pressures to address seriously the inequities which SULS (often unwittingly) perpetuates.

Slaves to an Illegitimate System

I think the point about pro-female sex discrimination with which I find most difficult to deal is the assumptions on which pro-female sex discrimination is based. These are assumptions about the role of biological sex in the determination of a person’s suitability for a position and the privileging of biological sex over other legitimate causes of oppression. The logic of pro-female sex discrimination policies is ironically perverse in that they attempt to redress the failings of a system that has discriminated against women on the basis of their biological sex by promoting and privileging women, again on the basis of their biological sex. It is the perverse irony of the pro-female sex discrimination movement that its policies rely on the same simplistic biological sex-obsessed reasoning that characterised the misogyny that pro-female sex discrimination purports to redress.

A striking analogy here can be drawn to the ‘affirmative action’ movement to increase participation of black students in American colleges, where so-called ‘affirmative action’ policies were criticised by William Bennet and Terry Eastland because of the incoherent and perverse logic of ‘reverse discrimination’:

To count by race, to use the means of numerical equality to achieve the end of moral equality, is counterproductive, for to count by race is to deny the end by virtue of the means. The means of race counting will not, cannot, issue in an end where race does not matter.

I would argue that Bennet and Terry’s term ‘race’ could easily be replaced by ‘sex’ and the pair’s criticism levelled at the introduction of pro-female sex discrimination policies in SULS. By affirming that biological sex is a critical determinant in a student’s suitability to lead the organisation, SULS is not only abandoning any claim to be a genuine meritocracy, it is allowing itself to support the same system that the ideals of pro-female sex discrimination purport to oppose. The proponents of pro-female sex discrimination claim to combat an unfair system in which a woman’s biological sex has precluded her social, professional and academic advancement. Instead, pro-female sex discrimination policies merely (though perhaps unwittingly) affirm the very logic that, in the past produced the unfair discrimination that we all now find unacceptable.

Pro-female sex discrimination is not a solution, it leads to the construction of an egregious loop that perpetuates a narrow focus on biological sex, while the real sources of unfair discrimination and oppression in our community (both generally and within SULS itself)—ethnic background, socio-economic status, educational institutional attendance—continue to prevent highly capable men and women from reaching the social, academic and professional standing that their innate talent would—in a genuine meritocracy—allow. When SULS acts to remove these unfairly discriminatory barriers, then I shall applaud.

On a concluding note, I think there is something inspiring about a university environment where profound and passionate disagreement on issues such as pro-female sex discrimination is possible. I think this intellectual freedom, a freedom to dissent respectfully from my colleagues’ opinions, is one of the greatest benefits of study within the university environment. Knowing the passion with which my fellow students engage with these issues, I am sure that my comments above will be heard, assessed and, probably critiqued and criticised. And that is the system of rigorous academic discourse that makes academic institutions invaluable.