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Rights claims in court

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I’ve taken an interest in a couple recent rulings in the halls of justice.  They have led me to think about the layers in understanding what women’s rights are about.  What I mean by layers is that it’s not just about the surface layer.  Being a woman is not necessarily the organizing principle around an assertion.  The woman part can be irrelevant.  It’s the rights part where the argument rests.  Yet when women assert their rights, often courts, the press, and donors play the “woman card” whether or not that’s the heart of matter.

The first person of note who had a day in court is a South African sex worker who made a claim to the Labour Court that a brothel-owning boss unlawfully terminated employment on the grounds of failing to give clients blow jobs. No doubt in South Africa and everywhere in the world it’s an important endeavor to critically examine the conditions around the degree sex work is by choice.  Definitely with an open mind that by choice is possible.  But in this case, why is the choice aspect of this sex worker’s history relevant?  After 18 years of service, she chose to take her claim of unlawful dismissal to court.  She lost and she’s heading to a higher court.  This is a labour issue.

The second person of note who had a day in court is a Kenyan claiming unlawful termination based on being HIV-positive.  The court ruled in favor of the plaintiff and awarded US$35,000.  I was impressed the headline of the story read:  Kenyan wins landmark HIV ruling.  Because really the woman part is irrelevant.  This is a labour issue.  But then I was disappointed when the first sentence read: A HIV-positive Kenyan woman has won… Why? Why is it relevant to insert woman into that first sentence?  What seems all too often systemically (sometimes subtly) embedded in knowledge production is over-reliance on highlighting womanhood as driving assertion of rights.  Whether it be knowledge generated through the press or donor dollars often there is too quick a leap to assume sex is relevant merely because the key voice is from a woman.  Moves in this direction potentially play a role in troublesome representations of women as poor, powerless victims without agency to think and act on their own behalf.

And since I touched on landmark HIV-related rulings.  The US has lifted the 21-year ban which prohibits HIV-positive foreigners from visiting the US.  I’m a firm believer that former US President Ronald Reagan’s religious right stance on HIV/AIDS from day one has had a devastating ripple effect across the globe.  This ban was his doing and I’m encouraged to see one of the many bad legacies of the Reagan years fading away.

2 comments to “Rights claims in court”

  1. Comment by Catherine:

    “I May be a Sex Worker, But us Girls Need the Law to Protect Us as Well.”

    You are right when you say that being a woman is not necessarily the organising principle around an assertion of a person’s rights. You are also right in saying that a lot of times people place undue emphasis on the fact that someone is a woman. However, l would not go so far as to say that being a woman in some of these issues is irrelevant. Nor does it always result in women being portrayed as victims.

    I am not privy to both judgments, but in my experience, being a woman in a lot of cases does have a bearing on what judgment you get handed down. Labour law is one of those areas where the letter of the law might be apparently gender-neutral, but in its application it becomes very gendered. I am brushing up on the regulation of sex work in South Africa, but if South Africa is like most of our countries, then it is likely that sex work is criminalised and the law is therefore silent on the labour rights of sex workers. If that is the position, then it is not just a labour issue. It becomes about women because of women’s over representation in sex work. Criminalisation of sex work makes sex workers vulnerable. In fact from the story, in rejecting the claim Labour Court Judge Halton Cheadle said: “There’s a fundamental principle in our law that courts ought not to sanction or encourage illegal activity.”

    The judge said. “The scope of the labour rights does not include sex workers and brothel keepers as bearers of those rights.”

    The judge clearly says that sex workers are not bearers of rights and therefore are not entitled to protection under labour law. This then leads us to ask, who are these sex workers? The majority of them are women. Therefore it ceases to be just a private labour dispute, we then take the case and locate it within a global and public discourse about women’s rights and the protection of those rights under the law. If the law excludes a certain class from protection, then the identity of that class becomes critical. In fact the woman in questions captures it so well when she says;”I may be a sex worker, but us girls need the law to protect us as well.”

    While you kind of glossed over the issue of choice and agency, l think that it is critical that we address this issue. The story in question for me underscores the point that as women we have to interrogate the word “choice”. The woman says of her profession: “”Every time you have sex during the first year in this job, you feel as though you’ve been raped. But after that year, I chose this job and some days couldn’t wait to get to work because it made me feel good about myself.

    “We girls are usually in bad personal relationships and then this job becomes a way of getting recognition and admiration,” Kylie said. “My clients tell me I’m looking fantastic, they tell me I’m pretty, they like talking to me and even if it’s all a lie, it’s a good lie.”

    “I didn’t choose this job — I answered an ad for a call girl thinking I [would] have to answer telephones. The brothel owner convinced me to try the job and I was so scared of having to sleep under a bridge that I ended up staying, promising myself ‘I will get out’. I didn’t and now I’m 40 and I have to say that this was my chosen profession.”

    May be l am naive, but everytime she says “choice or chosen profession”, l am left with the sense that she is desperately trying to convince someone that she is tough and she doesn’t care what people think, when in fact some of the things she says puncture holes into that bravado.

    What choice are we talking about when everytime you exercise that choice, you feel as if you are being raped? But let’s leave this aspect for another discussion.

    Back to the issue of the law, in some cases you find that the letter of the law might not be discriminatory, but its application by judges will certainly be. While we all like to think that judges are impartial arbiters who pay no regard to race, gender or class, this is often not the reality. So in this case, it was interesting that the advocate for the woman argued that the constitution protects “everyone working for and receiving compensation from another person” against unfair dismissal and unfair labour practices. The judge however chose to interpret the law in a way that entreched discrimination against a particular sex and class- female and sex worker. That is the gendered reality of the justice delivery system. That is why in talking about these issues, the identity of the person seeking to assert those right becomes critical. She is where she is, seeking (and failing) to assert those rights because she is a woman. We lose the plot, when we lose her identity.

    As for the woman who won the landmark ruling for unlawful termination of her employment, again only a close reading of the judgment can explain how the ruling was reached. It could well be that the fact that she was a woman had nothing to do with it. I acknowledge the problematic representation of women as poor powerless victims, however, my experience has taught me that nothing is as powerful a tool for inspiring women who are going through similar challenges as the story of one of their own, who has fought against the odds and won. A lot of times when people focus on the fact that it is a woman who has won, this is sometimes an acknowledgement of the obstacles that that woman has had to overcome in order to succeed. Lawyers and other activists might tell a woman to do something to change her circumstances, but oftentimes, it is the woman who has walked the walk who is really able to inspire the behaviour change necessary.

  2. Comment by Kubatana.net speaks out from Zimbabwe » Blog Archive » Labour law & black eyes:

    [...] recent blog of mine ­Rights claims in court­ generated an excellent comment and I wanted to highlight this comment and all its intellect.  I [...]