FEMINISM AND THE CHANGING STATE The Case of ... - SSRN papers

FEMINISM AND THE CHANGING STATE The Case of Sex Discrimination* Margaret Thornton

The State of Things ‘The state’ is an ambiguous and vexed concept for feminist scholars. Bringing women into the state was the primary focus of first- and second-wave feminism, which meant that feminist campaigns for justice had to be directed to the instrumentalities of the same masculinist state that legitimated the injustices in the first place. That a demonstrably hostile entity was expected to transmute itself miraculously into a beneficent one has been a central paradox perennially besetting feminist reformism. Indeed, Wendy Brown suggests that the notion of women seeking protection from masculinist institutions against men is more in keeping with a politics of feudalism than freedom (1995, 170). The state must nevertheless appear to be fair in order to maintain its legitimacy, as E.P. Thompson reminds us (1975, 184), and, despite misgivings, this veneer of fairness initially acted as a spur to feminist campaigners. The need for the liberal state to accommodate divergent interests also attests to the fact that it is not a unitary entity and that the conventional lines of demarcation between state/civil society, state/market and state/family are too rigid. The preponderance of political theory since the time of Aristotle has nevertheless sought to restrict it to the sphere of government. The state that Marx critiqued, for example, was a centralised state ‘with its ubiquitous organs of standing army, police, bureaucracy, clergy, and judicature’ which served middle-class society in its struggles against feudalism (Marx 1977, 539). Typically, Marx paid no attention to the gendered or raced character of the state. The Marxist critique fell out of favour with the collapse of communist regimes in Europe, and the anti-essentialist swing induced by postmodernism. ‘The state’, with its politico-economic and centralist focus, came to be viewed as old fashioned and onedimensional. Foucault’s concept of governmentality (1991) shaped a more comprehensive and fluid understanding that comported with the new ways of seeing. Reclaiming a broad meaning of government from the sixteenth century, Foucault focuses on the way that fields of action are structured through discourse (Dreyfus and Rabinow 1982, 221). Rather than being understood as a discrete sphere, ‘the state’ includes the multifarious technologies and relationships through which subjects are constituted. Rather than being restricted to the public sphere as in conventional political theory, every nook and cranny of society, including the family and the self, are productive sites of meaning. Governmentality also stresses the importance of power, which struck a chord with feminist poststructuralist accounts of the state.1 Nevertheless, an understanding of the dispersal of power does not mean that we should go to the other extreme and regard the state as having ‘withered away’. NeoMarxist scholars believe that postmodernists have gone too far in disaggregating the state: Australian Feminist Studies, Vol. 21, No. 50, July 2006 ISSN 0816-4649 print/ISSN 1465-3303 online/06/020151-22 – 2006 Taylor & Francis DOI: 10.1080/08164640600731747

Electronic copy available at: http://ssrn.com/abstract=1162436

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MARGARET THORNTON The postmodernist call to reject unitary or ‘grand’ theoretical perspectives (metanarratives) has inspired ‘governmentality’ theorists to move closer to an understanding of power as an almost ethereal force, so dispersed throughout the body of society that it has little relation to the traditional centers of political and economic decision making in capitalist social orders. (Tombs and Whyte 2003, 264)

While I accept that the state is not a static entity, it is not ethereal either, for it remains a powerful masculinist force that is also raced, heterosexed, able-bodied and classed. However, the deployment of a range of discourses around individual freedom, choice and success under the rubric of ‘the market’ effectively conveys the impression that the state may be ethereal.2 The constitutional power of the state to determine the status of persons within its purview is undeniable, a power that is not diminished by the supra-state currents of globalisation (Yeatman 2004, 99). It is notable that the time ‘the state’ fell out of favour coincided with the collapse of the category ‘woman’. This centrepiece of second-wave feminism began to be attacked, like the state, as cumbrous, old fashioned and essentialist. Disillusionment or disengagement was the result of reformist endeavours as the outcomes have not necessarily been empowering for women (Simon-Kumar 2004, 486). ‘Engagement with the state’ also lost its intellectual appeal for feminist scholars seduced by the micropolitical and the seductiveness of bodies, sexualities and popular culture. Women’s studies centres in universities also came under attack and were either closed down altogether or replaced by configurations such as gender, sexuality and diversity studies. Despite the importance of acknowledging the variegated and heteroglossic nature of women, the disintegration of a unifying subject weakened the political commitment to feminism.3 Once women had been ‘let in’ to public life, it became fashionable within popular and political discourses to aver that feminism was passe´. Even Prime Minister John Howard entered the fray by referring to the ‘post-feminist age’ (Summers 2003, 21). The project of first- and second-wave feminism to place women in the state qua public life could be said to be reflective of an epistemic moment where a particular construction of ‘woman’ was politically and strategically necessary. This unidimensional woman also provided a point of contestation for those who felt excluded by virtue of their race, class or disability. While feminist theorists, such a Gayatri Spivak (1987), Judith Butler (1993) and Maria Drakapolou (2002), have alluded to the way that the category ‘woman’ has been invoked epistemically to challenge its surface essentialism, a focus on the capillaries has served to deflect attention away from the insidious power of the state. It is arguable that the fragmentation of the state in feminist theory, while itself a by-product of the postmodern movement, has also contributed to the marginalisation of a politics of economic justice for women (Jaquette 2003, 336). With remarkable rapidity, virtually all trace of feminist influence has been erased from official discourses, including government policies, other than in so far as subordinate, dependent, entrepreneurial or commodified subject positions are concerned. The ‘femocrat’, for example, a distinctive Australian neologism, has virtually disappeared from feminist discourse, apart from the occasional allusion by an overseas scholar.4 Taken unawares while preoccupied with ‘the capillaries’, like other progressive scholars, feminists have discovered that they lack either a politics or a theory to deal with the neoliberal swing that has pulled the rug from under our feet. Catharine MacKinnon

Electronic copy available at: http://ssrn.com/abstract=1162436

FEMINISM AND THE CHANGING STATE

famously postulated more than two decades ago that ‘feminism has no theory of the state’ (1989, 157). Governmentality theory, with its multiple discourses and sensitivity to the play of power, does provide a way of understanding the dynamic constitution of the state in regard to gender, but this may not go far enough in capturing the facilitative role of the neoliberal state in relation to the market within a global economy. Franzway, Court, and Connell asked with considerable prescience in the late 1980s: ‘Will the state be captured by the New Right and transformed into a monetarists’ heaven with devastating consequences for feminism including the femocrats?’ (1989, 161). Almost two decades later, the answer must be an unequivocal ‘yes’. The issue has acquired a singular urgency as feminist scholarship in the academy is being eviscerated as a result of ever-increasing state intervention in universities, which includes pressure to satisfy specified research priorities. Feminist scholars are expected to reinvent themselves or leave the academy altogether (Thornton 2004b, 20
22). In a neoliberal environment that has fostered a resurgence of benchmark masculinity and the privileging of applied knowledge, critical theory of any kind is becoming a luxury. In this essay, I consider the shift from social liberalism to neoliberalism and then show how this has impacted on sex discrimination, with particular regard to paid work. I have selected sex discrimination legislation as an example of a feminist-inspired reform that is not only illustrative of the way the social liberal state was deployed by feminists but also embodies a utopian promise of the way things might be. As Anna Yeatman points out, drawing on Durkheim, the state’s role is to think, that is, to think through social problems and translate them into policy (Yeatman 2004, 100). Slackening vigilance necessarily imperils feminist futures. I also argue that a neoconservative morality has become enmeshed with neoliberalism in such a way as to undergird the logic of the market. While I am not advocating a return to the past *a futile aspiration *I would like to exhort at least some consideration of the neoliberal state by feminist scholars in light of the dramatic trajectory of change that has occurred over the last decade or so, including the unravelling of the feminist agenda.

From Social Liberalism to Neoliberalism While freedom and equality are the key features of liberalism, they are counterpoised against one another. Freedom is maximised when conservativism is in the ascendancy, equality when progressivism triumphs. As a result of the tension between them, Wendy Brown suggests that liberalism perennially produces a Nietzschean notion of ressentiment (Nietzsche 1969, 127) within one side or the other as a result of its paradoxical promise of freedom and equality: A strong commitment to freedom vitiates the fulfillment of the equality promise and breeds ressentiment as welfare state liberalism * attenuations of the unmitigated license of the rich and powerful on behalf of the ‘disadvantaged.’ Conversely, a strong commitment to equality, requiring heavy state interventionism and economic redistribution, attenuates the commitment to freedom and breeds ressentiment expressed as neoconservative anti-statism, racism, charges of reverse racism, and so forth. (Brown 1995, 67)

Thus, when the liberal pendulum swings to the left, collective good and equality, it arouses ressentiment on the part of conservatives, who believe that their freedom is

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inhibited. Once the pendulum swings to the right, the ressentiment of the left is roused, for the untrammelled freedom to satisfy individual desire prevents the realisation of equality. I do not wish to overstate the pendulum metaphor by suggesting that the responses are automatic as, like all discourses, they are necessarily marked by discontinuities, breaks, thresholds and limits (Foucault 1972, 31). Feminist critiques have long unmasked the universal citizen of the liberal state as 5 male. He is the autonomous inhabitant of the public sphere who has been able to slough off the domestic sphere and its particularities of relationality and care, which are compatible with neither freedom nor equality. Despite the best endeavours of feminist scholars to stress the importance of the symbiotic relationship between public and private life, relationality and care remain marginal to liberal state theory. The social liberalism that is associated with the inchoate welfare state of the twentieth century nevertheless took halting steps to respond to feminist claims that freedom and equality be reconceptualised, but the modest gains achieved have now been largely supplanted. Under social liberalism, the untrammelled play of individual freedom was tempered by a notion of collective good. State regulation and progressive taxation were employed to effect a modicum of distributive justice, bolstered by a vibrant civil society. In contrast, the cluster of values associated with neoliberalism maximises the individual freedom associated with the masculine, and minimises the feminised values of collective good and distributive justice, thereby signalling what Marian Sawer (2003b), 87) refers to as a ‘sex change’ in the state. Under neoliberalism, we find that deregulation is the order of the day as the state purports to have devolved the management of the economy to the market. The public sphere, qua government, has contracted and public goods, such as utilities, transport, health and education have been privatised and commodified. Nothing is of significance unless it has use value in the market. It might be noted at this point that neoliberalism is by no means peculiar to the Australian nation-state, but has become the dominant political philosophy of the Western world. It is a corollary of globalisation and, as such, has become the metanarrative of our times (Roberts 1998). Furthermore, neoliberalism is by no means the prerogative of conservative parties alone.6 It was under the social liberalism of the late twentieth century that women were grudgingly accepted by the state as legal subjects after decades of struggle, albeit at the periphery. In terms of liberal theory, exclusion and the most blatant inequalities could then be treated as aberrations that needed to be corrected because they did not comport with the liberal commitment to (formal) equality between citizens. Measures such as equal pay, no-fault divorce, the proscription of family violence, changes to sexual assault laws, the setting up of women’s advisory units within State and federal governments, and the passage of sex discrimination legislation, were all notable examples of reformist initiatives designed to remedy the anomalies of the past.7 The recognition of the category ‘woman’ coincided with the high point of social liberalism under Prime Minister Gough Whitlam in the early 1970s, but at that very moment the first seeds of neoliberalism were sown when Whitlam cut tariffs on imports by 25 per cent (Cahill 2004, 89). I suggest that this privileging of market freedom over collective good, which was to gather momentum in subsequent decades, signalled the change of course. Since that time, neoliberals have set out with a vengeance to reassert their freedom and neutralise the gains of social liberalism. The neoliberal state has sloughed off responsibility for what happens to its vulnerable and low-paid citizens. Instead of the social state, an ethic of individualism

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prevails, in which citizens are expected to take responsibility for the course of their own lives. If they do not succeed, they have only themselves to blame. The concept of individual responsibility has been popularised and made palatable by stressing the liberal rhetoric of individual freedom, autonomy and choice. In contrast, the ethic of care associated with social liberalism is dismissed pejoratively by neoliberals as a manifestation of the ‘nanny state’ (Sawer 2003b, 91
94). The feminised language alerts us to the reassertion of the masculinity of the state and its latent hostility to the feminine. The state assistance previously available for social justice initiatives has been curtailed within the new social Darwinist milieu, although it should be noted that the ‘crisis’ of the welfare state was identified as a phenomenon of the 1980s (Yeatman 1990, 119
48). Rather than equality and distributive justice as the fundamental underpinnings of the state, there has been a discernible shift in favour of inequality, exemplified by the emphasis on competition policy, entrepreneurialism and the market. While inequality has always been an undeniable dimension of a free-enterprise society, its potential for excess was formerly reined in by state regulation. It should not be thought, however, that the state has opted out altogether under neoliberalism. While market freedom, deregulation and privatisation are the hallmarks of the neoliberal political economy, it is the state that remains the driver of policy. While the state may have ostensibly devolved responsibility to the market for the good of the economy, it retains power for itself by operating insidiously through the market. There has been no descent into anarchy and there is no invisible hand of the market at work here. The appearance of self-regulation through the market is one of the most successful ploys of neoliberalism. It highlights the cogency of Foucault’s governmentality thesis, for the discourse of the free market does not emanate from a discrete sphere but represents the voices of the powerful operating through multiple sites. Thus, the neoliberal state has not self-destructed. It remains firmly in control, albeit behind the scenes, single-mindedly pump-priming the economy and winding down social justice policies, which are regarded as an ‘impost on business’. The state qua government works to boost the market by restricting social welfare policies for individuals and sponsoring ‘corporate welfare’ in order to tempt profitable ventures away from global competitors. In this new marketised and privatised incarnation of the state, social justice and gender equality are passe´. The market has transformed citizens into consumers obsessed with lifestyle and the visible markers of success.8 What sense do vestigial egalitarian measures make in a state committed to competition policy or inequality? The transformation leads Marian Sawer to ask why the defence of the welfare state is not ‘the number one item on the agenda of politically mobilized women’ (Sawer 2003a, 361).

Sex Discrimination Legislation Sex discrimination legislation is a casualty of the changing state. It has been unable to fulfil its promise of equality for women because of the force of the competing social norm of in-equality, a corollary of freedom and the free market, which has been strengthened incrementally by the neoliberal turn (Magarey 2004). The ressentiment of the right represents a strand of the neoconservative swing that is not only anti-feminist but also anti-Aboriginal, anti-gay and lesbian, and xenophobic, representing a moral conservatism that has become entwined with the economic conservatism associated with neoliberalism. I will briefly show how these twin ideologies have combined in an

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attempt to extract the teeth from sex discrimination, although some might think that it was edentulous to start with! I will have particular regard to the sphere of employment, which represents a crucial dimension of social life. It is also the site where the contradictions arising from the intersections of public and private life are acute for feminist and state interests alike. The proscription of sex discrimination was included in omnibus anti-discrimination legislation in New South Wales, Victoria and South Australia in the 1970s.9 The federal Sex Discrimination Act 1984 (SDA) was enacted by the Hawke Labor government, just when the Australian economy had been officially opened to world markets (Eisenstein 1996, 47). Prime Minister Keating further boosted the trend in favour of the market, although it was Prime Minister John Howard who, in the 1990s and 2000s, more fervently embraced the free market than any other leader (with the possible exception of his Northern Hemisphere role models, Margaret Thatcher and George Bush Sr). The change in state policy from protection to free trade is affecting all workers profoundly, but I suggest that it is exercising a disproportionate impact on women. In the preferred model of anti-discrimination legislation, an individual complainant pursues a specified avenue of complaint in the hope of securing a remedy, usually in the form of damages. Sex discrimination was never treated as a criminal offence, despite the feminist hope that it might be.10 On the contrary, the favoured approach has been a softlysoftly one, in which there is an attempt to conciliate a complaint behind closed doors. No more than 2 per cent of complaints proceed to a formal public hearing (Thornton 2004a). Thus, far from hauling perpetrators off to gaol, even the most egregious discriminators have generally been able to avoid public scrutiny. We see here how the state has established discrimination procedures that operate to advance the interests of benchmark males by erecting a carapace of privacy around the conciliation process. The express aim of the legislation is to ‘eliminate discrimination’ and effect equality between men and women, primarily in the areas of employment, education, accommodation, access to goods and services, and clubs. As I have shown in detailed critiques of the legislation elsewhere,11 the commitment to equality is lukewarm: the ambit of operation is narrow, its procedures tortuous, and its exceptions legion, as well as being very expensive for a complainant to pursue to a formal hearing. What is more, it is impossible to ‘eliminate’ something that is constantly being produced and reinscribed on the social script (Thornton 2004a). The language of ‘elimination’, which is taken directly from the United Nations Convention (CEDAW),12 would seem to proceed from the fallacious assumption that inequality is a finite variable that each complaint of discrimination is progressively able to reduce. Furthermore, as pointed out, a free-enterprise society based on competition necessarily produces inequality, which anti-discrimination does little to inhibit. Class is notably absent from anti-discrimination legislation as a proscribed ground, a variable that has particular significance when intersecting with sex, race and disability. This is another manifestation of the denial of the existence of power by the liberal state. There are also a number of major conceptual problems arising from the liberal legal mode of adjudication that operate to delimit the aim of effecting equality, which I shall briefly advert. Firstly, there is the individualised nature of complaint handling. This means that a complainant at a formal hearing has to carry the burden of proving that an identifiable respondent caused the discriminatory harm. Since sexism and sex discrimination are strands of our normative universe that have been socially and historically created, as well as legitimated by the state, how can an individual complainant sever her complaint

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from its political context in order to prove (on the balance of probabilities) that an individual respondent be held liable? If responsibility cannot be sheeted home to an identifiable respondent, no discrimination will be found to have occurred, a finding that serves to normalise the discrimination. Indirect discrimination makes a half-hearted attempt to address systemic discrimination by purporting to consider practices that are neutral on their face but exercise a discriminatory effect. However, a complex legal test that includes the slippery subjectivity of reasonableness permits only the most overt instances to be captured.13 Needless to say, such a test does not overcome the causation issue, which still requires that an identifiable respondent be held liable in accordance with the typical model of civil liability within the Anglo-Australian legal system. While it may be unreasonable to hold an employer responsible for a gendered harm that is buried deep within the social psyche and legitimated by the state, it can be seen that this is cold comfort for a complainant who is left high and dry with no prospect of a remedy. The individualistic approach not only serves to depoliticise complaints by sloughing off all reference to the context in which they occur, it also downplays the substantive harm, which is underscored by a judicial preference for the technocratic and the procedural. Secondly, our intrepid complainant has to prove that she was treated less favourably than a real or hypothetical male in the same or similar circumstances. Given the extent of sex segregation that persists within the Australian workforce (Preston and Burgess 2003, 511), the comparability requirement constitutes a significant obstacle for women engaged in women’s work or for those with caring responsibilities. A hypothetical comparator may be postulated but this may be difficult for a decision maker to imagine.14 The feminist campaigns for reform sought to address discrimination against women, not men, and even though sex specificity is supported by CEDAW, Australian anti-discrimination legislation is couched in gender-neutral terms in order to conform to the liberal state’s ideal of impartiality. That is, in order not to be seen to be conferring a benefit on women, men can also lodge complaints alleging sex discrimination, as though the masculinist state had historically excluded and marginalised men in the same way it had women.15 In an endeavour to locate a gendered harm on a gender-neutral playing field, the essence of the harm as gendered has to be muted or sloughed off altogether. Comparability also favours a reductive and biologist approach to sex. The legislation does not deny the social constructionist element of sex/gender but, unsurprisingly, it is not well understood in sex discrimination jurisprudence. Similarly, the way that sex intersects with other variables of identity, especially race, sexuality and disability, remains elusive within the essentialised understanding of the phrase ‘on the ground of sex’. Sex discrimination legislation requires a relentless focus on this one characteristic of identity. Not only does this have the effect of heightening the burden of proof for Indigenous women, lesbians or women with a disability,16 it requires that one facet of identity be privileged over all others, even though identities necessarily represent a complex amalgam of traits. Thirdly, sex discrimination legislation operates in conformity with the classic public/ private dichotomy of liberal legalism that cordons off the family and treats it as though it were ‘naturally’ a regulation-free domain, although it is accepted that the state should make formal incursions into the family through law from time to time. Once again, we are reminded of the masculinist character of the state and the caveats it imposes when grudgingly ‘letting in’ the other.

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Despite the fact that the family represents a major source of inequality for women, it remains largely out of bounds in the case of sex discrimination legislation. The intractability of the public/private dichotomy is underscored by the inclusion of the ground of workers with family responsibilities, following Australia’s ratification of ILO 156.17 The new ground is potentially transgressive in the way that it purports to reach across the public/private divide but is limited in its operation. In the case of the SDA, for example, an individual may rely on this ground to complain of discrimination only in the case of dismissal from employment.18 The new ground is far from opening up the private sphere to enable scrutiny of just who is doing the caring and under what circumstances, but makes sure, under the guise of sex neutrality, that worker/carers are engaged in productive work. Hence, sex and parental status are a problematic intersection in the case of working mothers, particularly those whose careers deviate from the ideal worker (Gaze 2005, 94). We see, therefore, that the state is prepared to make no more than a tiny aperture in the barrier between public and private; it is certainly not prepared to dismantle it altogether. While all States and Territories, except South Australia, contain a somewhat broader conceptualisation of the ground of family responsibilities than found in the federal Act, I reiterate that the legislation can be accessed only from the public qua the employment side of the divide. Even then, the judge may delimit its ambit further, for the statutory language of sex discrimination is deliberately left opaque in an endeavour to appeal to dichotomous interests. The hermeneutic role of judges also represents an important site of masculinist state power, despite the claims that the judiciary represents an independent and neutral site of decision making. The Schou case is illustrative.19 Deborah Schou had worked as a Hansard reporter in the Victorian parliament for 17 years. She had two children, one of whom was asthmatic. If parliament was sitting, she was expected to work until parliament finished, even if it were as late as 2:00 a.m. When she sought to do her transcription work at home for two days per week, which was possible with a computer and a modem, she encountered difficulties and resigned. She lodged a complaint of discrimination but it was not conciliated. It proceeded to four hearings: two before the relevant Victorian tribunal, which she won, and two appeals before the Victorian Supreme Court, which she lost. The sticking point was the slippery concept of reasonableness in the context of indirect discrimination. The freedom of the employer clearly trumped the claim to equality by workers with caring responsibilities. The majority judges evinced disbelief that an employee would challenge managerial prerogative regarding the site where the work would be conducted (even though the complainant had entered into a workplace agreement guaranteeing her ‘flexible and progressive work practices’).20 It is notable that the idea of the masculinist state carried with it a particular cogency in the Schou case because of the identity of the respondent. This was the State of Victoria which fought the case tenaciously, even being prepared to undermine the proscription of discrimination on the ground of status as a carer within its own legislation.21 Cases such as Schou rattle the barricades surrounding the private sphere, possibly even creating a few dents. Retaining the immunity of the private sphere from regulation, however, is a central project of the masculinist state. It remains a site where male citizens are largely free from the constraints of equality or equal treatment. Equality is a concept realisable only within the public sphere in liberal theory. In contrast, the private sphere has always been a site of inequality. A wife, children, extended family members and servants

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could never be the equal of the master, the pater familias. While the rhetoric of equality between adults has been extended tentatively to the private sphere in popular discourse, it is far from the reality, as illustrated by the way it is cordoned off from sex discrimination and other regulatory regimes. If inequality in the private sphere qua family had been outlawed, we would be encountering a truly radical reform. However, far from even thinking about the pros and cons of extending the ambit of the legislation into the family, my immediate concern is with the evisceration of the legislation in respect of employment.

The Neoliberal Impact on Sex Discrimination Legislation The workplace is changing dramatically as a result of the focus on the market and the depredations of neoliberalism. Rather than focus on the rights of employees and the conditions under which they work, which was a major concern of social liberalism, the state is now concerned primarily with the freedom of employers to maximise corporate profits within a global economy. The focus is on flexible workplaces, which means that wages are low, conditions are poor and tenure is parlous. Everyone is expected to do more with less. If it is no longer profitable to keep workers on, they should be dispensed with; tenure cannot be justified. As a result, restructuring and redundancy now typify what has become a workplace culture of insecurity. The state, in facilitating the market, is prepared to sacrifice the interests of its citizens, particularly its most vulnerable workers. If workers cannot survive through their own endeavours, that is just too bad. The shift away from a social liberal regime in which the rights of (benchmark male) workers commanded respect to one obsessed with the maximisation of profits poses a conundrum for sex discrimination legislation, for discrimination has become endemic in the new environment. What is more, the pervasiveness of the new culture of insecurity neutralises the discriminatory impact. The new employment discourse averring that flexible work is ‘good for the economy’ has been accepted as orthodoxy within a remarkably short time. Accordingly, the state is resiling from a regulated system of industrial relations and devolving responsibility to individual employers within the market. The turnaround is transforming the culture of work dramatically. Centralised wage fixing and the regulation of the conditions of work through State and federal awards reveal how social liberalism operated as a beneficent force. Women benefited from a state-regulated system, which sought to effect pay equity and superior workplace conditions for all workers.22 The tripartite compact effected between government, unions and employers minimised the exploitation of the most vulnerable. The contemporary evidence suggests, unsurprisingly, that a deregulated system in which workers, either individually or through an enterprise collective, bargain the terms of their employment contract, will generally leave them less well off than under industry-wide awards (Combet 2005). In the desperate scramble to be competitive within a global economy, which includes entering into free trade agreements with countries that have inferior working conditions and lower wages, such as the United States and China, Australian workers’ rights are rapidly being whittled away. Nation-states generally are engaged in a ‘race to the bottom’ by reducing workers’ conditions in order to maximise profits. As a result, significant worker protections are being eroded, as illustrated by the recent neoliberal workplace reforms of the Howard government.23 In the United States, the one ‘protection’ remaining for workers is that of a minimum wage, which for most States, as well as the federal level, is a mere US$5.15 per hour.24 Deregulation means that there are dramatic

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variations in pay between those doing the same job; workers may be engaged as independent contractors in order to bypass anti-discrimination laws, and workers have lost rights to permanency, occupying their positions at will, which means dismissal without cause at any time. This is the model that Australia is seeking to emulate. Also dramatic is the shift that has occurred to part-time, casual and contract work in the interests of ‘flexibility’. Contingent or precarious workers are expected to be available at any time at the behest of the employer to suit the needs of global capital. Thus, the new flexible workers are expected to work harder and longer when demand is high but less when it is slack, regardless of the financial ramifications on them personally. Workers may enter into alternative employment relationships with employers, such as that of independent contractor, in the belief that they will have control over their working lives, but it is the employer’s freedom *not theirs *that is being expanded, despite the rhetoric of family friendliness. Labour-law experts have pointed out the poverty of contract law in a changing employment context.25 The increasing uncertainty of the employment relationship, as illustrated by casual or ‘as required’ workers, magnifies the difficulties. It goes without saying that women are the preponderance of these new precarious workers (Owens 2002), but gender has once again become invisible as a category of analysis (Pocock 1998, 580; Preston and Burgess 2003, 499). One must ask: what does the non-discrimination principle mean in a context where discriminatory treatment and the sacrifice of rights is the modus operandi of the latest incarnation of the reserve army thesis? Even if conditions of employment were less favourable than those of a similarly situated man, how could a precarious worker lodge a complaint against her boss? Complaining about a boss can be disastrous at the best of times, even in the case of senior professional women. It can mean marginalisation or victimisation *if the complainant still has a job *or being blackballed by an entire industry.26 Any course of action involving the lodgement of a complaint to an outside agency is imbued with risk as it will be regarded as damaging the ‘brand’ name of the corporation. The worker is expected to put up with adverse conditions, however discriminatory, or leave and go elsewhere, for her job is held according to the good grace of the employer. Like the worker of the nineteenth century, the contemporary neoliberal worker is expected to bear responsibility for her workplace experience, including less favourable treatment. The insecurity of the workplace is by no means limited to the growing category of precarious workers, for the phenomenon now affects all workers. How can a worker prove that the loss of her job or a demotion after, say, maternity leave, was caused by discrimination rather than from the employer’s need to ‘downsize’ or restructure?27 A neoliberal presumption in favour of the employer renders it virtually impossible to prove sex discrimination in restructured workplaces (Hunter 2002, 63
65). There may no longer even be an identifiable employer against whom a complaint can be lodged, and a real or hypothetical comparator may prove to be even more elusive. The model of employment underpinning sex discrimination legislation *that of constant, full-time employment *is fast disappearing as the norm (Stone 2004, 165). Whether this explains the decline in the number of sex and race discrimination complaints being reported at the federal level is not clear.28 It is notable, however, that most complaints relate to employment (88 per cent under federal Acts), although few proceed to formal hearings (Hunter 2002, 62). Most sex discrimination decisions deal with sexual harassment, pregnancy or family responsibilities, which suggest that sex discrimination, far from being ‘eliminated’, has been absorbed into the culture of work.

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As feminists believed that institutional initiatives were a more efficacious means of securing social change than the lodgement of myriad individual complaints, provision for affirmative action (AA) was originally included in Susan Ryan’s sex discrimination bill, which did not survive. A separate Act was eventually passed in 1986.29 This was a very weak piece of legislation, which created no rights. It required merely that organisations with more than 100 employees lodge an annual report regarding their progress in the development of an AA program. The short history of this Act illustrates well the Nietzschean ressentiment thesis, as an ongoing attack on AA was maintained by right-wing forces, including the Business Council of Australia.30 AA allegedly impeded the freedom of employers to be competitive, although no evidence was adduced in support. The 1986 Act was repealed in 1999. It was replaced with an even weaker Act which made no reference to AA whatsoever.31 The 1999 Act carefully excised all reference to ‘forward estimates’ or ‘objectives’, because of the fear of quotas, which is code for appointing ‘unqualified’ women without regard to the merit principle. The anodyne concept of diversity, particularly ‘managing diversity’, has tended to replace the more threatening discourses of equal opportunity and AA within contemporary workplace practice (Thornton 2001). While a diversity ideal is difficult to dispute, it is apparent that the language has been deployed to enhance the freedom of employers, particularly when examined in the light of patterns of restructuring, redundancy and precarious work.32 This new discourse, I suggest, contributes to the stifling of agonistic concepts such as ‘discrimination’ and ‘inequality’ in the context of anti-discrimination legislation. The transition from EEO to diversity has been carefully orchestrated by the state in the interests of the market.

Neoconservatism Hand-in-glove with neoliberalism is neoconservatism. While a conservative morality is not the necessary corollary of a conservative economic policy, there is a convenient ideological intersection between them. The state’s adoption of a conservative stance has resulted in the unravelling of the feminist agenda in conjunction with an anti-feminist discourse. ‘Women’ are passe´ as a category of analysis. The ressentiment of the right has been complete. Instead of ‘women’, ‘feminism’ or ‘gender’, the political focus is now on ‘the family’. This transition has occurred as a result of the intersection of economic neoliberalism and social conservatism borrowed from the American religious right, a conjunction that has been exposed brilliantly by Marion Maddox (2005). The revived discourse of ‘the family’ refers to the traditional two-parent heterosexual family, which may no longer be the norm in contemporary Australia, but is what moral conservatives seek to revive. It is nevertheless recognised by moral conservatives that it is not feasible for them to continue to corral women with children behind the white picket fence 1950s style. Contemporary conservatism has had to acknowledge that women are now a legitimate part of the paid workforce, even if they have young children.33 Neoliberalism has deployed this reality to its own ends. Full-time work is still frowned upon, but women with (school-age) children have been seized upon as the ideal flexible workers. Echoing the reserve army theory of women’s labour, long identified by feminist scholars,34 women can be brought out of the home at times of high demand, such as the need to work in retail for two or

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three hours in the middle of the day, and be home again in time to collect the children from school. Women are still primarily responsible for caring not just for children, the aged and sick family members but also their male partners and adult sons who are perfectly able to look after themselves (Fraser 1989, 148). The preference theory of labour market theorist Catherine Hakim (2004) has struck a chord with neoliberals and neoconservatives alike (Maddox 2005, 87
92), for it naturalises the assignation of both paid precarious work and unpaid caring work to women in ways that crucially serve the state, thereby underscoring the symbiosis between public and private life of liberal theory. In brief, Hakim’s thesis is that the differences between men’s and women’s labour market experiences and pay are explicable in terms of the lifestyle choices women make, including electing to work fewer hours or part time, or choosing different work from men. She argues that ‘work-centred women’ can be equal at work because of initiatives such as anti-discrimination legislation but, by the same token, ‘home-centred women’ should not be denied equality because of the choices they have made. The third group, to which most women now belong, comprise the ‘adaptive women’ who fit in paid work around the needs of the family. While many women may opt for flexibility at work, particularly when they have family responsibilities, as illustrated by the Schou case, this does not mean that they favour precarious jobs that are exploitative. They appear to consent to poor working conditions because there are no alternatives or they lack bargaining power. Rational choice theory underpins the neoliberal notion of individual responsibility, which conveniently glides over structural discrimination. Rational choice theory disguises the way in which increasing numbers of unskilled women workers and those from non-English-speaking backgrounds are subordinated through precarious work. By a certain sleight of hand, freedom and equality thereby appear to be reconciled in the case of precarious workers. While a great deal of attention is presently being paid to the work/life balance, the assumption is that it is women, the ‘marginalised care givers’ (Chalmers, Campbell, and Charlesworth 2005, 43), who are expected to do the balancing. Precarious work, as the descriptor graphically implies, denotes insecurity, inadequate pay, dependency and/or poverty, both at the time of working and in old age. The work/life balance confirms that substantive equality remains a chimera for women. The low status accorded to the bearing of life and caring for it, compared with the destruction of life and the endangering of it, as in war, again signifies the way in which a gendered dichotomy is mapped onto the priorities of the neoliberal state. Australia, like the United States, does not support paid maternity leave because it is not good for business. Child care workers are so low paid that agencies encounter difficulty in recruiting and retaining qualified staff (Welch 2005). In contrast, war service is extolled as heroic, and still carries connotations of good citizenship.35 An environment has been created that insidiously unpicks policy and institutes new directions to circumscribe the freedom of women. Individual exemptions are a way of undermining the public nature of anti-discrimination legislative texts.36 Application has been made under the SDA for an exception to the marital status provisions to prevent single women and lesbians from having access to assisted reproductive technology,37 and another on the grounds of sex to allow male-only scholarships to encourage young men to become primary teachers.38 Exemptions are being sought and obtained under State legislation in respect of race in employment in order to effect contracts with foreign nation-states.39 Such exemptions reveal how the market is being blatantly privileged over

FEMINISM AND THE CHANGING STATE

human rights. It may be only a matter of time before free trade agreements and the prospect of lucrative contracts are invoked to obtain further exemptions, if not the repeal of discrimination in employment provisions altogether. Neoliberalism and neoconservatism have colluded in the development of an antifeminist agenda that has seen a sharp turn away from the concerns of social liberalism. Although neoconservatives have systematically attacked the SDA and the AA Act from the outset,40 it is only in the last decade or so *as neoliberal policies have taken hold *that neoliberalism and neoconservatism have begun to coalesce and the masculinist character of the state has been able to expose itself with confidence once again. Ann Summers’ book The End of Equality (2003) shows graphically how social liberal policies designed to benefit women have unravelled rapidly.41 One could note the collapse of the campaign to secure paid maternity leave,42 the severe budget cuts to and downgrading of the Office of the Status of Women (Whip 1996), increased child care costs (Pocock 2003), and the watering down of the AA Act, to which I have referred. A particularly bizarre illustration of the discounting of women’s interests was the despatch of an official 12-person delegation to an ILO conference on pregnancy and the workplace in Geneva in 2001 that did not include a single woman (Whip 1996). Indeed, one could go so far as to say that gender justice has been rendered both unseeable and unsayable by the prevailing neoliberal discourse.43 The discourse of freedom as rational choice has complemented the more overtly masculinist discourses to deflect attention away from the struggles of second-wave feminism. The new incarnation of the feminine that is acceptable is a commodified form that serves the market. ‘Girl power’ has been deployed to sell style in designer clothing, makeup and household goods. Packaged as ‘third-wave feminism’, it is sexy, trendy and superficial. Second-wave feminism, with its trenchant expose´ of the gendered partiality of the liberal state, can now be dismissed as so cumbrous and old fashioned that it is best consigned to mothballs.

Conclusion Understandably, complaint-based anti-discrimination legislation has been unable to realise its stated object of ‘eliminating’ sex discrimination in our society. It was naı¨ve to imagine that it could, since it is perennially being reinscribed within the social script. The social liberal state managed to maintain no more than an uneasy truce between dichotomously opposing interests. The neoliberal swing means that not only has inequality become more pronounced as a norm within our society but also that social justice is treated as expendable as far as the market is concerned, unless use value can be attached to it. At the same time, sex discrimination legislation is an official text of the state and remains an important, if somewhat tarnished, symbol of equity and plurality. The proscription of sexual harassment, a sub-set of sex discrimination, is touted as a feminist victory and *in a limited way *it is, although I have argued that the focus on corporeality deflects attention away from systemic discrimination (Thornton 2002). Unlike most complaints of sex discrimination, sexual harassment complaints are more likely to be successful, at least at the formal hearing level. When the behaviour is overtly sexual and unwanted, it is harder for the respondent to adduce credible evidence in rebuttal (once it is accepted that the conduct took place). I have suggested, however, that the alacrity on the part of the state in developing a remedy, coupled with the relatively high rate of

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success for complaints, is because of the workplace context (Thornton 1991). According to liberal theory, sexuality does not belong in the workplace; it is paradigmatically private activity that is viewed as likely to impede worker productivity. For this reason, complaints of sexual harassment that mirror heterosex have a reasonable chance of success (Thornton 2002).44 In contrast, sex discrimination in the workplace, where it is necessarily entwined with managerialism, employer prerogative and the construction of merit, is largely immune to challenge. A rational explanation can invariably be adduced to explain why a particular woman was not appointed, which has nothing to do with her sex. As I have suggested, the diffusion of authority and power, together with the insecurity of the contemporary workplace, render the possibility of success of complaints of sex discrimination even more elusive. The individualised approach to the handling of complaints has always been problematic because it cannot grapple with structural discrimination, but the neoliberal labour market stresses the notion that lodgement of complaints is outmoded because discrimination and inequality are pivotal to corporate success. The sexual harassment example reveals very clearly that it is only those aspects of the feminist reform agenda that are compatible with the interests of the state that are likely to be supported. While sex discrimination legislation was an initiative of social liberalism, its passage also coincided with a period of unparalleled economic growth. Hence, it was desirable to encourage women into the workplace with the promise of a non-discriminatory environment. The neoliberal promise is now one of ‘work/life balance’ and ‘flexible work’ *one that possesses a similarly superficial allure. Women are encouraged to engage in precarious and exploitative work because it allows them to demonstrate in a material way that they place their families first. Far from there being a contraction of the state *as ostensibly appears to be the case with devolution, deregulation and privatisation *we are seeing a boosting of the power of the state through neoliberalism that includes a renewed emphasis on the construction of gendered subjects. Clothed in the language of flexibility and choice, we are once again being spun a story of a neutral and progressivist liberal state in which things are always getting better. The ostensible devolution of responsibility for the economy to the market tricks us into believing that the state has disappeared. Just because it is less visible does not mean that it is now ethereal. It is not the invisible hand of the market that is at work here, attenuating the inchoate commitment to equality, but the invisible hand of the state working through the market. By effecting an intimate liaison with the market, the state has played a key role in ‘sustaining and intensifying the neoliberal project’ (Tombs and Whyte 2003, 264). There is little space for social justice and the constellation of feminist values in the neoliberal state’s single-minded pursuit of the interests of capital. As Sawer points out, markets are incapable of delivering equal opportunity ‘which is why welfare states were introduced in the first place’ (2003a, 365). Competition and the bottom line, however, are all that matters to the players on the global economic stage. Equity for those who continue to undertake the preponderance of care is of little consequence. The success of neoconservative ideology means that the neoliberal state has been saved from having to expend energy in accommodating divergent interests, leaving it free to proceed with its agenda largely unimpeded. Redistributive justice can be effected only by the state qua government; it is not going to occur of its own volition. The swing from social liberalism to neoliberalism occurred as a result of pressure from the business sector and exponents of

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the free market. A swing in the other direction is unlikely to occur without significant energy being expended by feminist and social justice activists. Engagement with the state is fraught in that it always carries with it the danger of co-option, to say nothing of the ubiquitous conundrum of ‘who speaks for whom?’ It can nevertheless serve ‘both as a brake on the negative externalities of capitalism and as a positive force for material redistribution’ (Mansbridge 2003, 356). The fickle and treacherous character of the neoliberal state poses an ongoing challenge, but there is too much at stake to ignore it. The absorption of feminist energies by the capillaries has deflected attention away from the market metanarrative. The change in the relationship of feminism and the state is so dramatic that it calls for a new episteme of feminist theory. I am not exhorting gender mainstreaming or a revival of femocracy in the vain hope of securing an instantaneous panacea, but critical engagement with the insidious workings of the anti-feminist neoliberal state. It may be our only hope for developing the necessary groundswell to push the political pendulum back towards social justice again. This is the real challenge for third-wave feminism.

NOTES *

1. 2.

3. 4. 5. 6.

7. 8. 9.

10.

11.

A version of this paper was presented at the Generations of Feminist Studies Conference, Adelaide, 28
30 June 2005. I thank Chris Atmore for drawing several references to my attention. See, for example, Clare Burton (1985); Suzanne Franzway, Dianne Court and R.W. Connell (1989); and Rosemary Pringle and Sophie Watson (1992). The idea that the state operates through a range of sites so that it is ‘invisible’ is not new and is captured by Davidson’s title to his study of the creation of the Australian state (The Invisible State), although he does not deny the importance of the traditional organs. See Alistair Davidson (1991). See also Franzway, Court and Connell (1989). For a comprehensive overview of contemporary currents in feminist scholarship, see Mary G. Dietz (2003). For example, Jane S. Jaquette (2003, 339). See, for instance, Genevieve Lloyd (1984). Several Australian States swung towards neoliberalism in the 1980s and 1990s under Liberal governments, but subsequently softened their hard-line stance under Labor governments. For an overview of these reforms, see Regina Graycar and Jenny Morgan (2002). A graphic picture of the corrosive effects of over-consumption is contained in the work of Clive Hamilton and Richard Denniss (2005). In NSW this was the Anti-discrimination Act 1977 (NSW). In Victoria, the Equal Opportunity Act 1977 (Vic), was replaced by new Acts with the same name in 1984 and 1995. South Australia introduced the Sex Discrimination Act 1975 (SA), which was replaced by the Equal Opportunity Act 1984 (SA). The first anti-discrimination legislation enacted in Australia, the Prohibition of Discrimination Act 1966 (SA), utilised the criminal standard of proof: ‘beyond all reasonable doubt’. The Act was a dismal failure because the standard was impossible to meet. Today, procedural, not substantive, violations attract fines under most legislation. See, for example, Thornton (1990).

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13.

14.

15. 16. 17.

18. 19.

20. 21.

22. 23.

24.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979; ratified by Australia in 1983. For more on CEDAW, see http://www.hreoc.gov.au/ sex_discrimination/optional_protocol For example, the requirement that an applicant for a school deputy principal must have completed a period of uninterrupted full-time service was held to discriminate indirectly against women in Kemp v. Minister for Education (1991) EOC 92-340 (WA EOT). For instance, Curtis v. T & G Mutual Life Society Ltd (Victorian Equal Opportunity Board) 3 July 1981 (unreported). The complainant, secretary to the general manager of the respondent company, was expected to make the coffee and clean the silver, but she was unable to prove that this was sex discrimination as there was no comparable male secretary. The masculinist position of company secretary meant something quite different. The most notorious example involved the challenge to women’s health centres in Canberra. See Proudfoot v. ACT Board of Health (1992) EOC 92-417 (HREOC). For more, see Hilary Astor (1995); and Dianne Pothier (2001). Australia ratified ILO Convention 156, Workers with Family Responsibilities, in 1990. In 1992, the ground of family responsibilities was included as a proscribed ground within the Sex Discrimination Act 1984 (Cth) (SDA). All States and Territories, except South Australia, now include parental status, or a cognate term, as a ground in their antidiscrimination legislation: Anti-Discrimination Act 1977 (NSW), s49(s); EOA (Vic), s6(1); Anti-Discrimination Act 1991 (Qld), s7(1)(d); Equal Opportunity Act 1984 (WA), s35A; AntiDiscrimination Act 1998 (Tas), s16(i); Discrimination Act 1991 (ACT), s7(1)(e); AntiDiscrimination Act 1992 (NT), s19(1)(g). Sex Discrimination Act 1984 (Cth), s 14(3A). See, for example, Commonwealth v. Evans [2004] FCA 654. Schou v. State of Victoria (Department of Victorian Parliamentary Debates) (2000) EOC 93101 (VCAT); State of Victoria v. Schou [2001] VSC 321, (2001) EOC 93-170 (Vic SC); Schou v. State of Victoria Melbourne (Department of Parliamentary Debates) (2002) EOC 93-217 (VCAT); State of Victoria v. Schou (2004) EOC ’93-328 (VCA). For commentary, see Beth Gaze (2002). Schou v. State of Victoria Melbourne (Department of Parliamentary Debates) (2002) EOC 93217 (VCAT), p 76,509. It might be noted that the Melbourne law firm Holding Redlich, running the case for the complainant on a pro bono basis through its various hearings, was also prepared to mount an appeal to the High Court, the ultimate court of appeal, provided that the State of Victoria did not sue for its costs if Ms Schou were to lose. No such undertaking was forthcoming. The writer wrote to the Victorian Attorney-General, Mr Rob Hulls, on 25 May 2004 pointing out the significance of the case. The Attorney-General acknowledged receipt and advised that he had referred the letter on to Ms Monica Gould, President of the Victorian Parliament’s Legislative Council, for response. No reply was forthcoming. For a discussion, see Thornton (1993). Workplace Relations Amendment (Work Choices) Act 2005 (Cth). As the Act runs to 766 pages, it is not possible to analyse it in this paper. For the gist of the reforms, see John Howard (2005); and Misha Schubert (2005). See the US Department of Labor’s figures at: http://www.dol.gov/esa/minwage/ america.htm#content. Katherine Stone (2004, 271) notes that, taking inflation into account, the minimum wage today is 21 per cent lower than it was in 1979. For a

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25. 26. 27.

28. 29. 30.

31. 32.

33.

34. 35.

36. 37. 38.

39.

thoroughgoing study of the dramatic changes that have occurred in the US labour market over the last decade or so, see Stone (2004). For example, see Mark R. Freedland (2003, 521); and Jill Murray (2005, 69
71). In terms of the banking sector, see Dunn-Dyer v. ANZ Banking Group (1997) 92-897 (HREOC); and in legal practice: Hickie v. Hunt & Hunt (1998) EOC 92-910 (HREOC). See Finance Sector Union v. Commonwealth Bank (1997) EOC 92-889 (HREOC); Commonwealth Bank v. HREOC (1998) EOC 92-908 (FCA). A restructuring exercise involved the Bank ‘downsizing’ by shedding about 7,500 staff, but employees had the option of taking a redundancy package or applying for a new position. The issue of indirect discrimination arose because the women employees on leave did not have access to redundancy packages. To take up a new position, they had to be available within four weeks. Even thought this could mean that a woman could have been about to give birth, the Federal Court held that the condition was not unreasonable. See Chapter 4 of the Human Rights and Equal Opportunity Commission’s Annual Report 2003
4: http://www.hreoc.gov.au/annrep04/chap4.html This was the Affirmative Action (Equal Opportunity for Women in the Workplace) Act 1986 (Cth). For a discussion of the lobbying behind the scenes, see Susan Magarey (2004). BCA Submission to the Regulatory Review of the Affirmative Action (Equal Opportunity for Women) Act 1986, 1998. See http://www.bca.com.au/upload/submissions_regulatory_ review_affirmative_action.pdf The replacement legislation is the Equal Opportunity for Women in the Workplace Act 1999 (Cth). The Reserve Bank of Australia, for example, in its Equity and Diversity Annual Report 2002, while lauding its diversity practices and policies, notes the ‘significant decline’ in staff numbers. The accompanying graph (2002, 16) reveals this to be at least 50 per cent. The labour force participation of women in couple families with children under 15 is 65 per cent, and of women in lone-parent households 54 per cent. For detailed analysis, see David de Vaus (2004, 300
20). For example, see Wendy Brown (1995, 185). This connection between combat and citizenship, or what Iris Marion Young terms the ‘militaristic norms of honour and homoerotic camaraderie’ (1989, 253) has been a leitmotif of the Western intellectual tradition since Antiquity, a congruence that has also been accepted as a desirable, if not essential, prerequisite for leadership. Exemptions are discretionary. For guidelines under the SDA, see http://www.hreoc. gov.au/legal/sda_exemptions.html Sex Discrimination Bill (No 1) 2000 (Cth). This bill lapsed in the Senate, and a new bill was introduced in 2002. Sex Discrimination Amendment (Teaching Profession) Bill 2004 (Cth). This bill also lapsed in the Senate. The Australian Catholic University (ACU) had unsuccessfully applied for an exemption from the SDA to allow it to offer teaching training scholarships for male students only. See the Catholic Education Office’s application for exemption from the bill on the HREOC website (http://www.hreoc.gov.au/legal/sda_exemption/ceo_ application.pdf). The ACU was subsequently granted an exemption on 31 March 2004, allowing it to offer 12 scholarships to men and 12 to women. See http://www.human rights.gov.au/sex_discrimination/exemption/decision.html For example, ADI Limited, No A184 of 2004 (VCAT) (unreported). The exemption applied to discrimination on the grounds of nationality or national origin in relation to an

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40. 41.

42. 43. 44.

application to be employed in defence-related projects in compliance with US law. See also Boeing Australia Holdings Pty Ltd, 8 February 2005 (NSW ADB) (unreported). For discussion of the role of conservative groups, such as the Women Who Want to be Women, see Robin Rowland (1984); and Susan Magarey (2004). Also see Barbara Pocock (2003). For an insightful analysis of the way in which Coalition policies construct heteronormativity to the detriment of gays and lesbians, see Carol Johnson (2003). See the HREOC report A Time to Value: Proposal for a Paid Maternity Leave Scheme (2002). Rosemary Hunter (2002) is also sceptical about the ability of the SDA to deliver just outcomes for women in the present climate. Gail Mason (2002) argues that same-sex harassment should not be equated with sexual harassment, as presently conceptualised.

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Margaret Thornton is Richard McGarvie Chair of Socio-legal Studies in the Institute for Advanced Studies at La Trobe University. Her most recent book is an edited collection, Romancing the Tomes: Popular Culture, Law and Feminism (London: Cavendish, 2002).