We live in an era when the meanings of the words ‘sex’, ‘gender’, and even ‘woman’ are increasingly contested. This presents problems not only for those trying to work with the categories of law but also for simple comprehension, let alone finding common ground. Part of the problem lies in the neo-liberal discourse of rights and choice (with gender identity being claimed as a right) and part, I would argue, from ignorance and rejection of women’s history.
Feminist and other radical histories have always suffered from prompt backlash and attempts at suppression, but it still comes as a shock to older scholars like myself that the battles we thought women had won and the principles we imagined were now embedded and mainstreamed in our laws are in such danger of being dismantled. At the same time as feminist legal history is enjoying unprecedented popularity, how can we move away from, on the one hand, the romanticised notion of traditional women’s legal history – of past injustices overcome, and current equality won, by brave heroines and benevolent legal men – and, on the other, the linguistic shift that denies women’s separate experience, to tell the story of women’s legal history in terms that the next generation can understand, relate to, and learn from?