Temporality Matters for Women’s Equality
Shot of an unrecognizable woman holding a notepad written "WE ARE ALL EQUAL!" in the city. Credit:
LaylaBird via Getty Images
Editor’s note: This blog post is an abridged version of Meghan and Ben’s article published in Constitutional Court Review XIV.
One of the significant developments in equality and anti-discrimination law has been the recognition that inequality is structural. However, an often-overlooked part of those structures is temporality. Asking “when” inequality occurs offers a new dimension to understanding structural gender inequalities.
The Gender Demands of the Clock
Time is deeply gendered. Women experience chronic time poverty as they spend significantly more time on housework than men. In the formal workplace, labour laws strictly delineate what counts as work, yet no such attention is given to domestic labour. As a result, the amount of time women devote to domestic or care work is legally disregarded.
The rigid, and linear conception of time, what counts as valuable or productive time, and ideas that time is a commodity that individuals can control, all operate to structurally oppress women. Beliefs about how time should function – a steady march towards a better future – fail to account for how gendered harms are not confined to the past but echo forward to the future. Time itself is a construct that can conceal or uncover women’s inequality. It interacts with other systems and institutions to either oppress or transform gender power hierarchies.
In law, a rigid approach to time imposes a formalistic structure that limits how courts recognise rights violations. This rigidity is evident in the jurisprudence on women’s equality rights. For example, there is an assumption that the violation of women’s equality rights, and knowledge of that violation, are a perfectly synced up moment in time. Yet, issues like these typically emerge gradually, starting with minor pay gaps that are difficult to detect, particularly given sociocultural norms around confidentiality and pay. It is only through the progression of time that the gap in pay can become apparent, allowing women to recognise and challenge them. However, legal time limits for bringing a cause of action, are premised upon definitive bright-line moments of when a rights violation occurs and assumes that women will have the requisite knowledge to act when that violation occurs.
This rigidity was evident in Ledbetter v Goodyear Tire and Rubber Co Inc., where the U.S. Supreme Court’s majority required violations of women’s equality rights to conform to strict procedural rules. This use of time as a disciplinary tool disregards the slow and corrosive nature of structural gender inequality.
“…past inequalities can persist and ripple out into the present.”
Similarly, in his dissenting opinion in Bwanya v Master of High Court, Chief Justice Mogoeng of the South African Constitutional Court held that recognising the right to equality needs to be premised on unequivocal moments of time. The dissent held that de facto intimate partnerships could not be included within the scope of legislation protecting against the economic consequences upon the death of one partner, as there was no clear point in time when such partnerships had risen to the level of “life partner.” The incremental, subtle, and even fuzzy ways relationships solidify over time were used to deny the surviving partner legal access to maintenance provisions. With women’s unequal position in intimate partnerships, the structures of time were again used to perpetuate women’s economic subordination.
Breaking Free from Rigid Temporality
Flexible approaches that break free from rigid and linear understandings of time can better account for the myriad ways women experience breaches of their equality rights. A strong example of this is from Sithole v Sithole a case before the South African Constitutional Court. During the apartheid era, marriages between Black persons were legally deemed out of community property, leaving many Black women economically vulnerable. In 1988, the 1988 Marriage and Matrimonial Property Act sought to correct this by permitting Black persons to register their marriages as in community of property. However, there was a two-year limit for this registration and if not met, the marriage remained out of community property. This limit was challenged as unconstitutional as it failed to account for gender constraints on women’s agency and time.
Many Black women were unable to meet this time limit. Their failure to register was not a function of carelessness or disregard. Having knowledge of legal schemes and having power within marriage within a specific window of time were deeply connected to patterns of race and gender disadvantage. In holding the time limits unconstitutional, the Court was able to grapple with how past inequalities can persist and ripple out into the present. Time is not composed of disconnected blocks with a neat separation between a painful past and a hopeful future. Structural inequalities have deep roots. The past failure to automatically convert Black marriage and how this failure perpetuated the inequality of Black women in the present, is only understandable by grappling with the interconnectedness of temporalities.
Time Values
While a rich understanding of time permeates the South African Constitutional Court’s assessment of the breach of women’s equality rights, a more rigid conception of time creeps into the remedial stage. Sithole requires remedial orders that stretch into the past. Ordering equality remedies with retrospective effect would have a radical impact on property rights. To protect the disruptive effect of a fully transformative remedial order, the Court carved out exemptions that protected past property transactions.
The retrospective remedial caveats are revealing. First, it demonstrates a clear hierarchy of values. Protecting past property decisions is given priority over remedying present-day inequality harms. This will have material impacts on black women in the present and moving into the future as they will continue to be deprived of access to and control of property. This undercuts the transformative vision of Section 9 of the Constitution, as it imposes boundaries and borders on women’s equality. It continues to be sacrificed to preserve the past. Second, there is an uncritical acceptance of the impossibility of undoing past property transactions. The fundamental nature of women’s equality, the strong imperative to break with the past, requires the Court at a minimum to interrogate whether past legal certainty is of a greater normative value than present and future equality for women.
Temporality Matters
Temporality is a critical but often overlooked component of structural inequality. Political, economic, social, and cultural institutions are entwined around competing conceptions of time. Time shapes women’s inequality, particularly linear time, and re-examining time can illuminate how larger structures operate to disadvantage women. Differing conceptions that engage with the contradictions and multiplicities of time, as well as the consciousness of its structural power, can improve courts’ jurisprudence. In doing so, courts can clearly address at least this pillar of women’s structural inequality.
