Of the many disturbing things about Australia’s new ‘Liberal’ government, plans to cut foreign aid by $4.5 billion over the next four years must rank near the top. As shadow Minister for Foreign Affairs, Tanya Plibersek, highlighted in a speech to the Australian Council for International Development in late October, foreign aid is of particular importance to women and children. Ms Plibersek raised the prospect of the government’s resuming its former policy of prohibiting aid to organisations that offer family planning services. If this were to happen, it would be more than a scandal. One needs no expertise in foreign affairs to understand that a woman’s ability to control her fertility is intrinsically related to her chances of being educated, gaining employment, flourishing physically and psychologically, and breaking out of the cycle of poverty. Without access to contraception and safe abortions, most women will experience repeated pregnancies and childbirth, often from a young age. This reality is one of the major sources – perhaps the source - of women’s greater vulnerability to ill health, poverty, and homelessness.* The former ‘Harradine policy’,** is also utterly dumb. If countries like Australia want to reduce their foreign aid budget, surely one of the best ways to do this is to support programs that reduce poverty.

In constitutional terms, 'western' countries tend to think of reproductive autonomy almost exclusively in terms of abortion rights. In the United States, in particular, the issue is expressed as one of ‘choice’: whether to continue or terminate a pregnancy. However, if we contemplate the position of women in the poorest parts of the world – where foreign aid is needed – we can see how complicated the matter is, including for first world women.

First, what is at stake is much more than constitutional ‘rights’. The protected right to have an abortion comes at the end of a complex chain of factors surrounding personal growth. Education and effective health services, as well as protection from damaging traditional practices, are critical: all of these require positive governmental intervention, going well beyond the negative constitutional right to privacy, or bodily integrity, or security of the person, as the constituitonal textual sources of restraint on regulating abortions are commonly expressed. Positive support for pregnant women and their children is also essential. We shouldn’t literally throw the baby out with the bath water and imagine that governments have no legitimate interest in ensuring the protection of viable foetuses, or that the liberalisation of abortion laws is all that is needed for reproductive autonomy. In poorer parts of the world, it is obvious that girls’ and women’s ability to flourish is critically dependent on the whole spectrum of social, educational, obstetric and other health, services. This, in reality, is also the case in the west.

The language of ‘choice’ is misplaced. It represents abortion as if it were a lifestyle decision, in which an individual woman weighs up the pros and cons, the costs and the benefits, in the manner of a consumer. It individualises what is at stake, and depicts women as sole actors, detached and decontextualised. Often women have no choice. Continuing a pregnancy may in reality simply not be possible: pressure from partners, the demands of other children, the potential loss of work, and poverty, among many other factors, may make abortion the only choice. Governmental support and protection are essential if choice is to be genuine. But choice alone cannot capture what is at stake.

Whether these principles should find expression in a country’s constitution is a complex and sensitive question. Certainly, where a constitution includes the ‘right to life’ (the Irish and the Canadian, for example) this must be qualified so as not to rule out abortion. The South African constitution, which has a ‘right to life’, also includes the right ‘to make decisions concerning reproduction.’ But, even in South Africa, challenges to the liberalisation of abortion laws have shown how complicated the interplay between such provisions can be. We are reminded, too, that judicial review places decisions that have direct, physical impact on women and their lives, in the hands of individual judges. Certainly some are progressive and capable of empathy, but many are conservative and limited in their experience, perhaps also narrow in their imaginations. Giving them such power is extremely risky. It has often proven not to be in the interest of those who are affected. On balance, it is probably best to leave reproductive rights out of a constitution, but to make sure, on the other hand, that nothing in a constitution can be deployed to obstruct women’s reproductive interests.

Governments should support and fund what is needed if reproductive autonomy is to be possible. They should, of course, prioritise the poorest and most vulnerable, those for whom the bearing of a child may have genuine life or death consequences. But all women have an interest in such matters. Whether we like it or not, reproductive vulnerability remains the knife edge on which, at least for a significant part of their lives, almost all women walk.


*One graphic historical picture of the consequences of unwanted pregnancies in Australia’s own past is offered in The Baby Farmers, by Annie Cossins (Allen & Unwin 2013). The book explores the desperate 19th century practice of ‘farming’ out unwanted (usually ex-nuptial) babies to the permanent care of unregulated providers, paid to take the babies off their mothers’ hands. Neglect or abuse of these babies was often the outcome, and in the case on which Cossins focuses, it was death. What this history illustrates is not merely that such things happened in the not-so distant past on our own doorstep, but just how desperate and tragic the circumstances of women can be, on account of nothing more than their biological vulnerability.

**After its election in 1996, the former Liberal government of Prime Minister John Howard lacked a majority in the Senate. It did a deal with Tasmanian Senator Brian Harradine, a conservative Catholic, to whom special concessions were offered in return for his support. These included extra funding for Tasmanian infrastructure and a prohibition on foreign aid that supported birth control programs.

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Should we laugh or should we cry? Last week, the day after Australia’s new Liberal (Conservative) Prime Minister, Tony Abbott, was sworn in, his office announced that he was taking personal ministerial responsibility for women’s issue. Can this be serious? Abbott, the Opposition leader who treated former Prime Minister, Julia Gillard’s well-founded accusations of misogyny as a political stunt, and who was deaf to international approbation for Gillard?* Abbott, who responded to the public criticism of his sexist comments during the election campaign with obliviousness and recidivism? Abbott, who appealed to the Big Brother household for votes, looking like Hugh Hefner, with his Amazonian daughters leaning on his shoulders? Abbott who has now appointed only one woman to a nineteen-member cabinet?

There was a time, not long ago, when the women of New South Wales could simultaneously list their Prime Minister, Premier, Deputy Premier, State Governor, and Governor-General, on the world’s tally of female office-holders. Now the tide has turned; the natural order has been restored, and the men are back. We have only the Queen and her Australian representatives left. Even the royal baby turned out to be a boy, adding another male heir to the British throne, and disappointing hopes that gender-neutralising the law of royal succession would be more than symbolic. At least the Governor-General who administered the Prime Minister’s oath of office is a woman. She is also a Labor appointee. How long will she last?

But monarchs and vice-regal officers are not legislators. The most important mechanism for achieving gender equity is women’s representation in their country’s legislature. This, above all, is what feminists should aim for. Although many might consider constitutional equality rights and their judicial enforcement as more significant, this, as I have argued elsewhere, is to put the cart before the horse. Before judicial review is possible, legislators have to be elected; governments have to be formed; laws have to be passed. To rest one’s hopes in judicial review is historically blinkered, like planting crops in an arid region after a rare season of rain. The reality is that judges are frequently conservative, and just as likely to invalidate or eviscerate egalitarian laws as they are to do the opposite. Most important is for legislatures to be capable of passing progressive laws in the first place. More women in parliaments; more women in government; these are both a cause and effect of women's equality.

So, how is it to be done? The single upside to Abbott’s cabinet announcement is that many minds have been turned to both the problem and the cure. Numerous media commentators have discussed the under-representation of women, with the debate finding a focus on the merits of gender quotas. As Stephanie Peatling and Daniel Hurst have pointed out, research by the Inter-Parliamentary Union demonstrates that gender ‘quotas are an effective way to increase the number of women in parliament’.** Quotas, furthermore, are not a rare or exotic thing: in 2012, twenty-two countries used gender quotas in their elections; at least 40 countries have provisions for gender quotas in their constitutions. Still, Australia’s parliament (without quotas) is reasonably good on overall numbers of female Members, but by far the majority are Labor MPs. The problem, then, is the dearth of women in government.

Even so, the very mention of quotas has raised predictable cries of counter-meritocracy and ‘tokenism’. Women elected under a quota system, one Liberal MP, Bronywn Bishop, claimed, are ‘permanent second-class citizen[s]’. (How would she know?) But, like all knee-jerk reactions, this is simplistic; it overlooks the fact that quotas are not a uniform mechanism. They come in many forms; their operation is complex and system-sensitive. They may be legislative or constitutional, permanent, temporary or transitional, mandated or voluntary, directive or aspirational, enforced or ‘soft’; they may designate numbers of seats or proportions of candidates, or the order of candidates on lists; they may target women specifically or have gender-neutral minimums and maximums, or alternatively a ‘Noah’s Ark’ two-by-two rule. They may require alignment with particular electoral systems or with other opportunity structures. They may be reinforced by party rules, or by official incentives. Alternatively, they may be thwarted when women candidates are pre-selected only in seats they are unlikely to win, or discouraged from standing in the first place, including by the institutional practices of legislatures. But the idea that quotas are exceptional, anti-democratic, and based on nothing but special pleading is, at best, ill-informed. Not only are gender quotas not uncommon, other types of constitutional quota are also in operation in many countries, without raising a whisper of protest. Even in Australia. Can this be possible?

Australia is a federation. As I wrote in Gender and the Constitution (Cambridge UP, 2008) federal systems typically involve geographic or regional quotas (even if it is not widely recognized that they do this). They do so by mandating a fixed number of places in the national legislature for each state, regardless of its population. The principle of federalism is a departure from majoritarian democracy. It recognizes the place of minorities in the constitutional community and creates constitutional structures for their recognition and special protection.

Would Bronwyn Bishop seriously maintain that every one of the twelve Senators and five MHRs that are constitutionally guaranteed for even the smallest Australian state would win on merit alone, if the electoral system were demographically ‘democratic’? Can she honestly believe that the over-representation of National Party MPs in cabinet under her own party’s coalition rules is really a display of meritocracy?

The equal representation of women does not even require the same type of justification that the constitutional protection of regional minorities relies on in a federal system. Women are an equal majority and, in some countries, even an outright majority. Their equal representation in parliament would be nothing more than the result of democratic logic. Quotas designed to achieve this would be no more anti-democratic than, say, compulsory voting which, too, constrains 'choice.' But the rationale aside, electoral gender quotas will simply not fly in Australia. And the likelihood of constitutional amendment to entrench them is beyond fanciful. Is there an alternative?

Equalisation of numbers in parliament, it is clear, must start at the pre-selection stage. Political parties must not be allowed to be comfortable if their candidates are predominantly male. Women candidates must be encouraged, and selected for seats they have a chance of winning. No one should be scared off raising concerns about sexism or misogyny by taunts of ‘playing the gender card’. Above all, women’s access to participation-facilitating opportunities, in particular childcare and human-friendly institutional practices (reasonable parliamentary hours, for example) must be a constant campaign target. Pressure must not be taken off the government (here’s betting, however, that the Liberals’ generous paid parental leave policy will be among the first of their campaign promises to be broken).

The post-election surge of commentary on the shortage of women in government is encouraging. It must not be allowed to wither. The Prime Minister says there are women 'knocking on the door of cabinet'; he claims to be ‘disappointed’ that there are not more inside. Didn't he notice? - the choice was his. In this, and in his campaign, he has begun poorly. What a surprise. We wait for him to prove us wrong.


*I was in Ottawa at the time, and watched it being reported, not only on the politically correct Canadian networks and the BBC, but also American news channels, where, permitted a rare moment of authenticity, generic anchorwomen looked genuinely empathetic.

** http://www.smh.com.au/federal-politics/political-news/quotas-best-way-to-elect-more-women-20130917-2txc7.html

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This guest post was written by Kim Rubenstein, Director, Centre for International and Public law, ANU
Kim.Rubenstein@anu.edu.au

It is with great sadness that I write about the news of the death of our former academic colleague, Deborah Cass.

Many in the Australian academic world will know Deborah as a member of the ANU Law School from 1993-2000 and a highly regarded member of the Centre for International and Public Law under three different Directors: Professor Philip Alston (1990-1995) Professor Julian Disney (1996-1997) and Professor Hilary Charlesworth (1998-2004).

This was well before my own time at ANU, but Deborah and I were contemporaries as undergraduate law students at the University of Melbourne in the 1980s. While I did not know her well then, this was probably because she was busy with a range of extra curricular activities, including editing the student paper Farrago with James Button and Tania Patston.

Her concern for international justice and the rights of people who had suffered a great deal was already evident at that time, for while a student in 1987 she became a research assistant to the Commission of Inquiry into the Rehabilitation of Nauru, which won compensation from the Australian Government for damage done to Nauru by phosphate mining. Professor Anthony Anghie, now Samuel D. Thurman Professor of Law at the University of Utah, became involved in the Commission’s work soon after Deborah had finished (they came to know each other better when Deborah and he were both SJD students at Harvard) but he explains that “Deborah did the legal research that the Commission relied on by getting all the relevant documents together. She did extensive archival work in the UN in New York, Geneva for (League of Nations documents), and also archives in London (British Foreign and Commonwealth), New Zealand and Canberra (and perhaps other places too). She did an amazingly thorough and professional job-especially given the intricacies of the operations of the British Phosphate Commissioners, and the fact that all three governments did not relax the standard 30 year rule for the release of documents despite the fact that all the sought documents related to the administration of an international trust.”

Anghie continues, “The quality of her work is indicated by the fact that it provided the materials and the essential framework of the case of Nauru v Australia before the International Court of Justice”.

I came to know Deborah better while she was at ANU and I was teaching at the University of Melbourne when we became co-authors of the article 'Representation/s of Women in the Australian Constitutional System' (1995) 17 Adelaide Law Review 3-48. http://www.austlii.edu.au/au/journals/AdelLawRw/1995/2.html

This piece is of most interest to those reading this blog of Helen Irving’s as it was one of the first pieces written by legal academics about women and the Australian constitutional law system.

In 1992, before moving up to ANU from the University of Melbourne where she had also been a member of the law faculty, Deborah met a new academic, Gerry Simpson, and by the end of 1993 they were engaged and soon married.

Deborah had an outstanding career. During her time at ANU she won various scholarships enabling her to undertake the LLM and later doctorate at Harvard Law School. And by 2000 both she and Gerry were appointed as academics in the London School of Economics where they went with their then two young children, Hannah and Rosa.

During her time in Harvard Deborah began working on a new area of International Economic law and in 2005 her book The Constitutionalization of the World Trade Organization: Legitimacy, Democracy, and Community in the International Trading System (Oxford) was published to great acclaim. The following year, she was informed that she had won a prize for it from the American Society for International Law, to be presented by Condoleezza Rice. It was at this time that the terrible news arrived that the cancer that had been first detected in 2003 had returned, and she was unable to go. Instead it was more operations, chemotherapy and radio-therapy, and a decision to return with the family to Melbourne.

Since that time Deborah devoted herself to maintaining her health and enabling her daughters Hannah and Rosa, now 17 and 15 to know the wonderful and strong person she was. She will live on in the hearts of those who were close to her, and her scholarship continues to be cited to this very day.

In the Jewish tradition, we wish “a long life” to Deborah’s family: Gerry Simpson, their daughters Hannah and Rosa and her parents Moss and Shirley, and her brother Daniel and sister Naomi and their families.

An obituary written by James Button also appears in the Age – see
http://www.theage.com.au/comment/obituaries/academic-author-who-saw-law-as-a-means-to-change-the-world-20130721-2qcri.html

Kim Rubenstein
July 2013

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It is well documented that, during the mass anti-government protests centred on Cairo’s Tahrir Square over the last two years, numerous instances of sexual violence against women have occurred. These events, which have escalated in recent weeks, have shocked observers and caused international outrage. To some commentators at least, it is appalling that supposedly democratic revolutionaries should act in this way.

Sadly, this perspective is naïve. History tells us that liberationists are frequently selective in their sympathies, and that the plight of women has rarely been accorded priority for radical change. As I note in Gender and the Constitution (2008), the American feminist, Elizabeth Cady Stanton, found herself excluded, because she was a woman, from the delegates’ seats at the World Anti-Slavery Convention in 1840. The experience inspired her to rewrite the American Declaration of Independence as a ‘Declaration of Sentiments’ (it was later adopted at the Seneca Falls Convention, convened by Stanton and Lucretia Mott in 1848). The Declaration lists the ‘history of repeated injuries and usurpations on the part of man toward woman’. Stanton does not mention rape or sexual violence, but concludes with the charge that man ‘has endeavored, in every way that he could to destroy [woman’s] confidence in her own powers, to lessen her self-respect, and to make her willing to lead a dependent and abject life.’ As we know - and can now openly say - sexual assault is one of the ‘traditional’ methods of enforcing a state of dependence. It also has the effect of limiting women’s participation in public life.

Modern liberationist movements are not exempt from these ‘methods’. They may not formally exclude women from their ranks, but sexism and sometimes sexual assault have been part of their story. Any activist woman who lived through the 1960s will remember the double standard.

But it would be a mistake to treat sexism as the equivalent of violent physical attack. What is particularly shocking about the Tahrir Square events, even for the historically open-eyed, is the intensity and concentration of the sexual violence. The lack of police intervention has aggravated things. According to Human Rights Watch, police have stayed away from Tahrir Square during large protests, leaving women protesters unprotected against gang attacks. Not only have women been brutalised, but a culture of blaming the victim, and traditional codes of shame and disgrace, have compounded the injuries.

When customary contempt for women combines with the destruction of ordered mechanisms of restraint, women’s vulnerability to sexual attack is maximised. In countries where order is breaking down and dramatic political transitions are occurring, women’s rights are especially precarious.

Egypt is currently in a period of deep transitional instability. As in other comparable countries in recent deacdes, the framing and re-framing of a new constitution will be a central part of the transition process. Constitutional stability must be among the key goals.

After the overthrow of President Morsi, the 2012 Egyptian constitution was quickly put under review. A committee of experts, recently appointed, will have a month to propose amendments which will then be referred to a 50 member representative committee. A minimum of ten places, it seems, are ear-marked for women.

The 2012 constitution was considered by many to be deficient in protecting women’s rights; concern focused on a provision requiring the state to take all measures to ensure the equality of women with men, but subjecting these measures to the ‘rules of Islamic jurisprudence’. The website Women’s eNews notes that ‘some are hoping the rewriting of Egypt’s constitution … could mean a new era of women’s freedoms since [the 2012 constitution] did little to enshrine women’s rights or their protection.’

Others are doubtful. It is well known that, in the many cases around the world in which oppressive regimes have been toppled, what began as a commitment to women’s constitutional rights was sidelined or traded away in the final constitutional settlement.

In the immediate, there is little a constitution can do to shelter women from violence. But, is there anything it can do to protect women’s rights over the longer term?

Probably, most people will think straight away of a bill of rights, with a legally-enforceable gender equality or anti-discrimination provision. But to think primarily of legal challenges and of vindication in the courts puts the cart before the horse. Legal redress only comes (if at all) once the legislature, the administration, and the courts have been established, the electoral rules agreed, the representatives elected, the personnel appointed, the rules of process adopted, and the laws themselves enacted, enforced and challenged. Every step in this long institutional march towards the courts involves design choices. The most important focus of constitutional design - if gender equality is the goal – must be provisions that facilitate, even require, the representation of women in every institution and every decision-making forum. This includes writing and ratifying the constitution itself. Even before the first draft is contemplated, women need to be involved, both informally and formally, especially on the constituent assemblies.

Courts are historically conservative institutions; legal challenges are lengthy and expensive; powerful parties are pitted against weaker individuals. The representation of women in the processes of constitution-making and in the institutions these processes will ultimately establish is much more important than constitutional statements of equality rights. Gender equality provisions may be desirable, but they will be ineffective where there is no institutional requirement to listen to women’s voices.

It is the goal of representation that should be at the forefront of feminists’ minds. And not just in Egypt.

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It is impossible to watch the demolition of Julia Gillard’s Prime Ministership, even from afar, without experiencing distress that goes well beyond the circumstances of the present. I am currently in London, completing research on the marital denaturalisation of women (of which I have written in previous posts). Archival records, reaching back for decades, chart the long and halting struggle on the part of women to be recognised as full citizens – as members of the political community in their own right. Again and again, women who led the campaigns were forced to justify their entitlement even to claim this status.

Many men, equally committed to equality, supported them stoutly, and reading their speeches, one wants to cheer out loud. But, as was well understood on each occasion amendments to gender discriminatory laws were proposed, progress was like pushing sand uphill. Grains alone stuck to the top. Eventually, however, enough accumulated for change to occur. Women were ultimately able to hold independent citizenship, as well as vote and stand for parliament. But women’s political agency was not complete. Formal status as citizens did not guarantee recognition of legitimacy. It still does not.

Whatever one thinks of Prime Minister Gillard’s politics, it is clear as daylight that she has been subjected to a campaign, both from within and outside her own party, that no man would have to endure. I am not thinking of the tasteless sexist jokes or puerile comments about her clothes or appearance. Personal abuse is deplorable, but it is commonplace in politics, especially when a leader is unpopular.

Much more significant is the constant questioning of Gillard’s very entitlement to serve as a leader. The fact that in 2010 she successfully challenged former Prime Minister, Kevin Rudd (whose deep unpopularity at the time seems now to be forgotten, especially by him) is still held against her, three years after the event. The fact that she is spoken of as ‘untrustworthy’ for this reason alone is both astonishing and revealing. Many previous Australian leaders have been toppled while in office. It happened to Robert Menzies, UAP Prime Minister, in 1941 (he later returned, as Liberal PM, 1949-1966). It happened to Liberal Prime Minister, John Gorton, forced to resign by his own party in 1971. Labor Treasurer, Paul Keating, twice challenged Prime Minister Bob Hawke, knocking him off at the second attempt in 1991. If we were to add the ‘coups’ staged against Opposition leaders in the past, the list would be long and bloody.

But, while challenges against male leaders are certainly tolerated (and often admired), once the matter is settled, the victor is given both recognition and time. That Kevin Rudd appears incapable of refraining from challenging the Prime Minister (whether openly or not) speaks not only to his personal narcissism, but also his conviction that she cannot truly be the leader. It is inconceivable that his sniping campaign would have continued, had his defeat been at the hands of another man.

Is this a constitutional matter? It may be, if Rudd is to achieve his delusional goal of returning, sword in hand, to lead the party at the September election. The current government is a minority government, held together by undertakings on the part of Independents and minor party members. These undertakings were given to the current leader. A change in Labor leadership would unsettle this arrangement, potentially leading to withdrawal of their support. The Governor-General would then need to consider whether the Prime Minister had the numbers to govern, or whether an alternative leader now ‘enjoyed’ the confidence of the House. Rudd’s personal gain might be paid for by constitutional crisis, and the elevation to government of the current Opposition, even before the people spoke.

The very fact that we have a woman Prime Minister (and Governor-General) for the first time in Australia is a triumph in itself. But women leaders still have to fight many battles that working class men once fought (and now seem to have forgotten), in order to be seen as legitimate. The Danish TV drama, Borgen, currently showing on Australia’s SBS, is a subtle and intelligent representation of this reality. It depicts the circumstances of a country’s first female Prime Minister, fictional Danish PM, Birgitte Nyborg. It shows how thin and unstable political support can be at the best of times, and how much harder a woman leader has to work to retain it, even from those close to her. The fate of Nyborg will not comfort Julia Gillard, but it may offer a type of solidarity. I hope she watches it. I hope Kevin Rudd does, too, and that he feels ashamed of himself.

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Almost twenty years ago, in the false dawn for the Australian republic that was to end with resounding defeat in the 1999 constitutional referendum, feminists drew attention to something that should have been worrying for all republicans. Australian women, opinion polls revealed, were less likely to support a republic than men. No one knew for certain why. I and others offered hypotheses: women, we suggested, were alienated by the muscular calls for Australian independence; they found the ‘Boys Own’ scenario of striking out against the Mother Country unappealing; they were reassured by the grandmotherly images of the Queen; they were turned off by the campaign’s emphasis on political leadership and the jostling within the republican movement itself. Under-represented in institutional politics, we noted, women found it hard to identify with the political changes being proposed. And, as the 1994 Civics Expert Group surveys confirmed, they felt generally less confident about political or constitutional knowledge, and this lack of confidence, we speculated, contributed to a preference for the status quo. The republican movement, we urged, needed to take these perspectives seriously, to find a way for women’s concerns to be met and their voices to be heard.

There were some responses. Equal representation in republican forums was an obvious start, and the Australian Republican Movement (ARM) took this goal seriously. It promoted female speakers at its forums, and listed alternating male and female candidates on its ticket in the election for the 1998 Constitutional Convention (at which the merits of a republican constitution were debated). Such strategies delivered a reasonable number of elected women at the Convention (although only a third of the government-appointed representatives were women). Overall, however, little changed. Women organised their own unofficial constitutional convention. It attracted little attention, and, it is fair to say, also failed to generate workable ideas to make republicanism more attractive. All the while other women were campaigning, including as leaders, in the monarchist organisations. Their task was easier; all they needed to do was oppose change. In response, despite some misgivings about the campaign, republican women rolled up their sleeves and worked hard to make change seem desirable.

All this, so long ago (my children were in primary school; they are now adults), has come back to me vividly in the last few days. Nearly fourteen years have passed since the referendum defeat. And little, it seems, has been learned. I became acutely aware of this, in contemplating a new book, Project Republic, which was launched at parliament house in Canberra last Monday. Its appearance signals what is hoped will be a fresh start for the long-cold campaign. As the author of one of the chapters (on the necessary constitutional changes for achieving a republic), I won’t offer a review. I simply note three things: first, commendably, the editors, Benjamin Jones and Mark McKenna, were responsive to concerns about gender imbalance, and the book includes an excellent chapter on ‘Women and the Republic’, by Joy McCann, in which many of the 1990s ideas about women’s disengagement have been re-voiced. But, secondly, somehow, of the twenty-one contributors to the book, only four happen to be women. And, finally ... five speakers at Monday’s launch: all men. The heart sinks.

Here, instead, I want to speculate anew on why (apart from the obvious – the blokey-ness of such initiatives) women may still be less inclined to turn republican.

Last year, when proposals for the constitutional recognition of indigenous Australians were being examined, I wrote a paper surveying Australia’s referendum history and testing the record against the many theories about the low rate of success. Again, no one really knows for sure why Australians vote as they do, but there are some reasonable intuitions. Amendments to the Constitution that seem radical or gratuitous, or that appear needlessly to shift the locus of power, or involve multiple changes which cannot be disaggregated, are likely to be rejected. Amendments that would disturb the status quo without a clearly-appreciable rationale are similar. The 1999 republic referendum suffered from all these ‘faults’.

Each proposal also has its own particular hurdles to surmount. There can be no doubt, however, that a proposal that does not achieve a reasonable showing in opinion polls should not advance to the referendum stage. And polls that reveal an alignment of opinion and gender should be taken seriously. Poll results, however, only hold for a limited time. We need to think afresh about women’s perspectives. Maybe, back in 1999, women identified with the Queen, wanted security rather than change, disliked macho rhetoric and masculine leadership strategies, and felt uncomfortable about their level of constitutional knowledge. Are these still the reasons in 2013?

Probably. But the canvas has also changed. The British royal family (not just the Queen) is more popular now and certainly more attractive. Indeed, royal families all over Europe have become more popular. They have, indeed, become feminised. Although both the first and second in line to the British throne are men, many of the current European heirs are women, and changes in laws of succession have regularised what were previously anomalies (princesses without brothers). Britain’s recent succession rule change won’t apply for at least two generations, but it reflects not only a commitment to gender equality, but also a popular embrace of the legitimacy of female monarchs.

It also reflects other shifts. Royal heirs these days are permitted to marry commoners. All over Europe, as in Britain, crown princes and princesses have married non-royals. Unlike in the past (tragically illustrated in the arranged marriage of Charles and Diana) they now marry for love. Australia even has its own fairy-tale story of the ordinary girl who met a prince, disguised as a commoner, in a Sydney pub, during the 2000 Olympics, and who is now Crown Princess Mary of Denmark. The photos of young royals, and those of their spouses and their pretty children, adorn the covers of the multiple popular magazines one sees at supermarket check-out counters. They are the dignified antidote to films stars and the growing number of in-your-face celebrities. Although men, no doubt, read these magazines, it’s a sure bet that the majority of readers are women, and that a significant percentage of these readers are young. I would bet, too, that the demographic of monarchists has shifted since 1999; that the women who opposed the republic back then tended to be older but that younger women have now joined them. What monarchism seems to offer now is an attractive image of family life; young couples in love; adorable babies; beautiful clothes, a glamorous lifestyle that is at once out of reach, and also aspirational. Republicanism, in contrast, offers a colour-free story of sovereignty, a purely political (or even worse, a constitutional) object. It promises change without rationale other than the realignment of power. Its lack of appeal is compounded when men monopolise the field.

We should understand these values, not sneer at them. It is not demeaning to suggest that the monarchy, as currently imagined, is inherently more attractive to women. Politics is an unpopular domain all around the democratic world these days, and I would bet that women are especially turned-off by the growing nastiness of party political squabbles. The challenge, it seems, is to find a way of detaching republicanism from this domain: ‘aestheticising’ it, giving it the type of warmth that young royals currently radiate. I say this as a dedicated Australian republican and as a feminist; but also as one for whom happy families are a positive ideal.

I don’t know how it can be done. But, 'feminising' the republic – as has happened with the monarchy – may be a good start. We should have more female Governors-General. We should encourage the idea that the Governor-General might be transformed into our republican head of state, and that she (or he) might serve (as William Deane did, or Michelle Obama does in America) as a beloved national, even 'parental', figure. There is time. There is currently no sign of pro-republic political will, let alone a groundswell of popular opinion. Only 48% of Australians at present favour a republic (in the halcyon days, it was over 60%). Obviously a lot of men are also unimpressed. But, if the republican movement wants to make a fresh start, let's start at least with what was sidelined last time: the women's perspective.

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Two recent (private) Islamic forums at Melbourne University, in which women attendees were reportedly asked to sit at the back of the hall, have sparked controversy, even reaching an international audience in the World University News. Outrage and disapproval have been directed at the University for its failure to enforce its gender equality policy and to condemn these events. In reply, Vice-Chancellor, Glyn Davis, has offered a defence of the University’s position. First regretting that the University’s policy was not communicated more clearly to the forums’ organisers, he goes on to emphasise that religious freedom was also implicated, and that the imposition of gender equality ‘preferences’ may contravene religious rights. There is no ‘simple calculus’ for deciding which of the two must be absolute, he writes. Religious communities requiring gender separation have a right to worship according to their faith. Australia’s Sex Discrimination Act (1984) is ‘precise’; the prohibition on gender discrimination, he notes, does not affect ‘an act or practice that conforms to the doctrines, tenets or beliefs of that religion.’ Both gender equality and religious freedom are also enshrined in the United Nations’ Universal Declaration of Human Rights.

Rights, as we know very well, ‘collide’. A clash of principles is commonplace, and there are many concrete ways in which religious freedom may conflict with other rights, including gender equality. The controversy in this instance revolved around the practice of dividing people according to sex. Both ‘separation’ and ‘segregation’ have been used to describe what happened in the forums. Surely they are not the same thing.

We need to consider what is at stake. Does a practice reinforce women’s subordination? Does it diminish women’s life-chances? Does it stunt women’s growth as human beings? Does punishment (formal or informal) follow contravention of the practice? The 'calculus' may not be simple, but these are surely the metrics. There are many instances in which gender separation is harmless on such measures. It is absurd to argue that simply sitting among other women, any more than (the standard example) wearing a head scarf, is in itself subordinating. People practice, wear, do, and enjoy all sorts of things that others don’t (I could list dozens, starting with the wearing of six inch high heels), and it is not for those others to say that they are wrong.

But segregation is another thing. It took the United States decades to understand that segregation and equality are incompatible. In the famous 1954 case of Brown v Board of Education of Topeka, the Supreme Court reasoned that segregation had a harmful effect on black Americans, even where separate facilities were offered on an equal footing. The effect, importantly, was not to be measured by objective criteria or findings of tangible harm. Overturning Plessy v Ferguson (1896), which had concluded that ‘separate’ and ‘equal’ were compatible, the Court held that educational segregation generated in African Americans ‘a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’ Desegregation was ordered, even for black children who (or whose parents) were comfortable with things as they were. Sixty years later, Brown is a landmark in subtle sociological reasoning. But the fact that, in many instances, black and white Americans still socialise apart from each other and still worship apart from each other does not mean that desegregation has failed. Nor is it, in itself, a token of inequality.

Professor Davis calls for reasoned discussion, but offers critics a stark choice: either to defend enforced gender integration in every facet of life, or to tolerate religious practices, tout court. He comes worryingly close to implying that any practice done in the name of faith should be tolerated, and that expressions of disapproval equate intolerance. He invokes the law, but incompletely; he certainly knows that some religious practices - notwithstanding anti-discrimination law - are criminalised in Australia. He also surely knows that liberalism does not require people to be silent when faced with practices they believe to be harmful. Nor should tolerance (or commercial considerations) mean that religious functions, of any sort, must be permitted in secular institutions.

Professor Davis prioritises religious freedom in the construction of his reply. He might just as easily have reversed the principal and the subordinate value: while the toleration of religious practice is a key value at Melbourne University, he might have said, so is gender equality. History is full of examples where women’s interests have been balanced away or sacrificed to other interests (usually men's), commonly styled as ‘rights’. It is regrettable that both in law and in social discourse, gender equality does not trump other rights. It is also regrettable that, here, as so often, the women are not invited to speak for themselves.

Professor Davis writes: ‘If those who criticise the university believe no gender segregation is ever acceptable, even among faith communities, let them argue so explicitly – and argue why this is a defensible imposition on personal rights.’ He might have written instead: If women who criticise the university believe no gender segregation is ever acceptable, let them argue so explicitly, and let women who disagree argue with them. Let both sides consider what is actually at stake, and weigh up whether it is indeed segregation .

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