Gender Research and Feminist Methodologies

Abstract

This chapter is structured around the issue of gender research and what it means to conduct research with a gender perspective. Thus, it discusses research methodologies inspired by feminist ontological and epistemological approaches. Drawing on feminist standpoint theory, situated knowledge, feminist poststructuralism and intersectionality, the chapter shows how feminist scholars, especially feminist legal scholars, have adopted feminist epistemologies in challenging gender inequalities in law and society. The chapter draws on legal methods combined with feminist social theories that have assisted feminist scholars to go about legal reforms. Furthermore, focusing on qualitative methods, the chapter explains some of the methods of data collection and data analysis in gender research which have been applied interdisciplinarily across social science and humanities studies. The last part of the chapter concentrates on practical knowledge about conducting gender research that is informed with feminist epistemologies and methodologies. Finally, through some exercises, the students are given the opportunity to design and outline a gender research plan with a socio-legal approach.

1 Introduction

Feminist scholars have been conducting research criticizing traditional and male dominated research and knowledge production. Therefore, feminists have proposed alternative methodologies which are informed by a variety of epistemological and ontological approaches across different disciplines including law and sociology. This chapter draws on feminist methodologies including feminist critical legal studies through a gender sensitive lens, in other words, feminist socio-legal approach in gender research (aims, objectives, outcomes).

Learning Goal

• The first learning objective of the chapter is to elaborate on how feminist research methodologies are developed in order to contribute to the production of knowledge about social reality; a production of knowledge that is not based on male dominated perspectives. Thus, it stresses the distinctiveness of feminist methodologies from traditional and patriarchal mainstream methodologies. In the process of knowledge production, feminist researchers have attempted to make connection between the idea of gender, gender equality, experience, and the reality of intersectional gender discrimination. Consequently, feminist research methodologies move from the mainstream scientific methods, from only collecting data for objective purposes, towards gender sensitive data collection and analysis. Feminist methodologies aim to produce knowledge through ethical and political perspectives, which focus on the critique and overcoming of gender blind scientific approach, in addition to the articulation of gender equality contents, concepts, conceptions, aims, objectives and outcomes. Feminist methodologies also aim at producing a so-called situated knowledge, which encompasses active role of the subject of creating the knowledge in the process of knowledge production.

• The second objective of the chapter is to show diversity among feminist epistemologies that opt for challenging power structure in various ways which capture complexities of gender and gender relations. It shows how feminist methodologies have developed from focusing on the category of women to moving beyond emphasizing women’s commonality, which risks suppressing important differences existing among women who live life differently. There is a diversity of experiences in different social positions; white, black, heterosexual, lesbian, poor, privileged, colonized.

• The third objective of the chapter is to put an emphasis on qualitative methods in feminist research based on the feminist epistemologies presented in the chapter. Qualitative research method is thought to be the most appropriate to investigate the complex socio-historical, political, relational, structural and material existence of gender. Thus, qualitative methods of data collections such as interviews and documents are described. Qualitative methods of analysis including thematic analysis, document analysis and discourse analysis in conducting socio-legal research are also included.

• Finally, the fourth objective of this chapter is to provide the necessary knowledge and practical skills on academic writing. Writing an academic paper is challenging when it is based on research. Feminist writings are grounded on gender sensitive approach to political and ethical reflections which stand out across disciplines. Such reflections ought to be weighed more in educational purposes.

The key concepts that are covered in this chapter are:

• Gender research

• Epistemology and ontology in feminist research

• Situated knowledge and women’s experiences

• Reflexivity and positionality

• Feminist standpoint theory

• Discourse and discursive construction of power

• Feminist legal methods

• Feminist intersectionality research

• Research design and research strategy

• Thematic analysis, critical discourse analysis and document analysis

2 Gender Research

This section introduces the notion of gender research, and conducting research from a gender perspective. It explains why it is important to conduct gender research and how methodologies are adopted to carry out research within the field of law and sociology with an emphasis on gender. Applying gender perspective in research refers to the analysis of gender as a social construct that impacts all aspects of people’s lives with regards to social interactions and extends to intimate relations. Gender perspective in research questions unequal power relations in social structures. Moreover, gender perspective in social and legal research pays careful attention to the process of knowledge production in relation to power structure and contributes to development of gender equality within law and society.

The kind of research that only documents differences between the sexes offers no understanding of gender relations and gender practices, neither does it elaborate on the gendering process of laws and policies. Therefore, legal scholars have adopted methodologies with gender perspective to show an approach that recognizes multiple dimensions of gendered relations and power structure in the legal system. Gender research in sociological studies problematises hierarchical power relations between genders in everyday life and integrates diversity of social structures such as race, class, ethnicity, sexuality, socioeconomic status, age, and disability into analysis of structural inequalities.¹ What’s more, Gender researchers have addressed traditional bias by adopting alternative methods of qualitative and quantitative data collection, that not only pay attention to gender differences, but also captures the complexity of gender relations.²

2.1 Gender Research in Law and Society

Why is it important to conduct gender research through analysing the interaction between law and society?

The emergence of gender studies as a field of research has contributed to critical study of law as being a rule of the state. Gender studies have explored law as a social process that is discursively constructed. Understanding law as a social phenomenon challenges the mainstream ‘black letter’ definition of law as fixed and immutable. Gender research that is conducted by sociolegal scholars have attended to the lack of gender sensitivity in law using critical social theories. Examples of such are matters of sexual harassment and domestic violence.

Legal policies are constituted in interaction with social norms and realities that are often gendered. Gendered social relations and practices have taken shape through historicity of sociocultural, political, and economic processes. Therefore, gender research helps to tease out the ways in which legal and social policies and practices shape people’s lives. Law is an important and constitutive element of social life and gender is an important and constitutive element of human being. Together, the two are important in such research and more pressing in educational practices of law and gender.

Studying a social phenomenon with an emphasis on gender at interplay between law and society is important in many ways. It analyses law in terms of its power, potential and actual shortcomings in society. It investigates social realities of gender relations and constructions within law. It explores gendered social and legal process, and practices of legislation, judgements, jurisprudence and advocacy among legal professionals and institutions.

3 Feminist Research Methodologies

This section covers the ways in which feminist epistemologies as opposed to traditional and objective epistemologies have been developed to adopt methodologies for gender research. Feminist methodologies emerged from feminist politics, being feminist theories and practices. This section reflects on three feminist methodological approaches in studying gender and gender relations, which will be explained in the following subsections.

Feminist research does not stem from a unified set of thought and perspective. However, feminist perspectives do share common ideas. These common ideas imply that feminist research reflects on marginalization of women in social and political life.³ Moreover, feminist research criticizes dominant norms of science which maintain male superiority by problematising hierarchical gender power relations and by establishing research approaches that are based on equal grounds.⁴

Methodology concerns the use of theories and methods in conducting research, which are informed by different epistemological and ontological approaches. In criticizing traditional and male dominated research, feminists have proposed alternative methodologies which are informed by their epistemology and ontology; the ways in which one understands the world and the knowledge produced about the world.

Feminist methodologies claim that knowledge is produced within a context in which meanings and experience cannot be simply distinguished.⁵ In the process of knowledge production, feminist scholars and researchers have tried to make connection between idea, experience, and reality.⁶ Moreover, feminist research is based on, and feeds, feminist theoretical perspectives which are a considerable part of feminist politics, challenging male-biased knowledge production and power. Thus, feminist researchers have consciously developed theories based on practice. Therefore, most researches that are conducted by feminists draw on experiences, especially women’s experiences.⁷

Feminist epistemologies identify how gender influence our conception of knowledge and practices of inquiry.⁸ Feminist epistemologies problematize how dominant conceptions and practices of knowledge production exclude and subordinate some groups of people, including women. Thus, feminist epistemologies offer diverse accounts of how to overcome this problem by developing new theories and methods. Central to this endeavour is situated knowledge, a kind of knowledge that reflects a particular position of the knower. Situated knowledge means that the situatedness of the subject in relation to the power structure produces a type of knowledge that problematizes the ‘universal’ male-dominated knowledge.⁹ Donna Haraway reminds researchers how to tell the truth rather than proving how objective is the truth, by introducing the concept of situated knowledge. She encourages feminist researchers to hold on to the notion of partial visions instead of struggling to reduce their research to patriarchal knowledge.¹⁰

Feminist epistemologies focus on how the social location of an individual affects everyday life experiences, and how social structures are based on factors such as; gender, sexuality, ethnicity, race, age, place and socioeconomic status. These factors are imbued with power which ultimately results in situated knowledge. Thus, feminist epistemologies have opted for various ways to understand social phenomena and the ways in which knowledge is produced. This chapter explains standpoint theory, poststructuralism and intersectionality. However, it should be mentioned that feminist methodologies are developed across disciplines, adopting different approaches including; critical realism, historical materialism, new materialism and social structuralism to name but a few.¹¹

Feminist researchers in various disciplines, including feminist legal scholars, have discussed how to incorporate feminist theories, women’s experiences and knowledge production through gendered social relations into their analyses. That is to say, the following methodological approaches: standpoint theory, poststructuralism, intersectionality have also been employed by feminist researchers in legal studies. It should be mentioned that the following methodologies are chosen for students to understand how only some feminist methodologies are applied due to the limited scope of this chapter. Therefore, it does not imply rigid classification of these methodologies nor does it suggest they should be prefered in conducting gender research.

3.1 Feminist Standpoint Theory

This approach emerged in the 1970s out of discussions among feminists regarding masculinist science defining ‘women’ based on biology. Sandra Harding and Nancy Hartstock are known to be pioneer of this approach. Feminist standpoint theory finds out how knowledge production is entrenched with power relations. Feminist standpoint varies as different approaches are taken among feminists, which itself informs variety of feminist epistemological positions.

Feminist standpoint’s central conception is that women’s experiences speak the truth, resulting in the creation of knowledge that is situated in relation to power.¹²

In privileging women’s standpoint, this epistemological stand presents strong reasons for how women understand the world differently from men in social division of labour. Feminist standpoint essentially adds gender to the already existing class analysis in scientific research.

Taking a feminist standpoint approach means to emphasize women’s lives as they experience life differently from men. This is required to fully understand the relationship between experience, reality and knowledge, meaning it would be possible to remedy the kinds of misrepresentation and exclusion of women from dominant knowledge. According to Patricia Hill Collins, making knowledge claims about women must involve women’s concrete experience to make that knowledge claim credible. Women’s experiences refer to activities in everyday life including emotions and embodiment.¹³

For feminist standpoint theorists, knowledge is partial and does not implicate universal truth. Instead, it indicates the relations between power and knowledge. Empirical study is needed to investigate the specific forms of power, social relation and social positionality.¹⁴

Knowledge is constituted through everyday life. The everyday life of people is authoritative knowledge, as Dorothy Smith describes through ‘work knowledge’.¹⁵ A woman’s standpoint begins to unravel the underpinnings of gender. However, experience must be spoken or written for it to come in to existence, meaning it does not exist before its entry to language as authentic. Therefore, experience is already discursively determined by the discourse in which it is spoken.¹⁶

Feminist legal scholars have adopted feminist standpoint theory to draw on women’s point of view and experiences of matters in life which have been systematically excluded from legislations and supportive legal mechanisms. (Please see all the other chapters of the Textbook especially Sociology of Law chapter).

3.2 Feminist Poststructuralism

Influenced by literary criticism, poststructuralism emerged in the 1960s in France. Many thinkers of this philosophy such as Jacque Derrida, Michel Foucault and Julia Kristeva were initially structuralist thinkers who became critical to structuralism and abandoned the idea. Therefore, poststructuralism was created. It is fair to say that the work of thinkers who were initially known as structuralists, was developed to a more fluid and complex kind of idea called poststructuralism.

Definition

Poststructuralism upholds that language produces meanings which constitutes subjects. Poststructural theories explain how discourse produces subjects. How do discourses function and what are their effects in society.

The lines between postmodernism and poststructuralism are blurry and many have argued that the two cannot be assumed separately. Postmodern theory emerged in response to the limitation of modernism and the metanarratives produced by modernists.¹⁷ Poststructuralism (i.e. Derrida) is usually associated with a theory of knowledge and language, while postmodernism (i.e. Foucault and Lyotard) is often linked to theory of society, culture and history.¹⁸

Feminists allied with postmodern and post-structural themes on fluidity of identities, and some have opted for deconstruction of identities, such as category of woman. Furthermore, the rejection of epistemology altogether is also said to be taken by postmodern feminists who aim to abandon any attempt to claim knowledge.¹⁹

Feminist poststructuralism transcends situatedness by stressing on locality, partiality, contingency and ambiguity of any view of the world.²⁰ Feminists started to revise the standpoint theory. Hartstock, for example, made a revision to her original presentation of standpoint approach, in which she says that emphasizing women’s commonality will risk suppressing important differences existing between women and their life experiences in different social positions; white, black, heterosexual, lesbian, poor, privileged, colonized and so on.²¹ According to poststructuralism, reality is socially and discursively constructed. Thus, feminist poststructuralists do claim that gender is socially and discursively constructed as a result of the effect of social regulations.

Postmodern feminist researchers criticize feminist standpoint and feminist empiricism for being essentialists in the ways they use identity categories such as women, due to their focus on gender differences that are portrayed as essential and universal.²² Poststructuralist scholar Joan Scott criticizes standpoint theory and its focus on women’s experience which she argues exists in language and discourse, hence the discourses of women’s experiences are constructed beyond the speaker or writer’s intention.²³ In poststructuralist epistemology, power is understood as discursive and not the property of one gender. Thus, agency of the subject, according to feminist poststructuralist view is not free from discursive power.

Feminist poststructuralism, usually known as third wave feminism, problematizes the binary category of male and female, and argue that language and discourse create gendered subject through interactive process of everyday life.²⁴ It shows how relations of power are produced and reproduced. Thus, it subscribes to knowledge being produced discursively through particular social and historical contexts. According to feminist poststructuralism, the subject is basically dead, one’s subjectivity and understanding of self is constructed through discourse. Hence, the agency of the subject is limited, as Judith Butler holds that ‘the subject is not just a product a constitutive force of her discursive practices, it rather is a disruptor of the process through which she is constituted’.²⁵

Feminist legal scholars’ approach to law as a social phenomenon, seeing law as being discursively constructed, has led them to decentralize the states’ power and push forward for gender equal legal reforms. (please see Sociology of Law chapter).

3.3 Feminist Intersectionality

The concept of intersectionality is said to be developed by Black feminism in 1980s, particularly by Kimberlé Crenshaw who focused on the intersection of gender and race. She defined the concept of intersectionality as a different way in which the factor of race, along with gender, affect the ways black women experience employment and social life. The experiences of women of colour were excluded and lost in forms of multiple discrimination and marginalization.²⁶ It is worth noting that long before the inception of the concept of intersectionality, feminists had already been analysing gender at intersection with other structures of dominations such as class. For example, US feminist anti-slavery movement in the nineteenth century.²⁷ Therefore, we can say that the early use of the concept of intersectionality in feminist practice was based on the intersection of at least two axes of domination. This included gender and race, or gender and class, yet was not considered in either politics or research. Intersectionality has brought a conceptual shift in feminist philosophy and research through which scholars understand social actors.

Feminist intersectionality focuses on multidimensional and multi layered understandings of power and knowledge. To understand power relations in production of knowledge, it is important to know how subjects are situated; the situatedness or social location of people in the intersections of power. Situatedness engender knowledge from specific circumstances where power struggle is immediately at work, and when a particular type of knowledge is generated.

The recent work of feminists on intersectionality focuses on multiple forms of systems of dominations and privileges. Thus, in intersectionality research, the perspective of multiple marginalized groups is included in analysis, including the social experiences of privileged groups. The consequence here is to problematise and challenge universalisation.²⁸ For example, the category of woman as a universal aspect is challenged. Furthermore, intersectionality research illustrates that no one single factor is the reason for marginalisation and dominance; they are part of a broader pattern. According to Kathy Davis, “intersectionality is the interaction between gender, race, and other categories of difference in individual lives, social practices, institutional arrangements and cultural ideologies and the outcomes of these interactions in terms of power”.²⁹

Power is an important element in intersectional analysis. Feminist studies, together with anti-racist, postcolonial, queer studies, masculinity and disability studies, continue to enhance how norms are constructed and how power relations interact with each other. “Intersections of power can be found in all relations, at all levels of social structure from individual actions to institutional practice”.³⁰

The aim of employing intersectionality in feminist research is not to simply add as many categories as possible to our analysis, but to broaden the perspective and reflect on what factors may be relevant in a particular context, with specific socio-historical and spatial context. “An intersectional approach goes beyond just identifying power patterns. It is applied to problematizing the underlying social categories and see how these are reinforced or challenged”.³¹

Feminist legal scholars have critically analysed the one-dimensional approach of law through intersectional perspective. Intersectional analysis has enabled feminist legal scholars in their legal analysis and judgments to scrutinize the multiplicity of underpinning social structures of both oppression and privilege at macro, meso and micro levels. Thus, relationality of social structures of gender, sexuality, class, race, ethnicity, religion, age, (dis)ability is being analysed with respect to socio-historicity of the context.

The formation of intersectionality has not been without criticism. Scholars often remain critical towards the use of intersectionality as an additional component of research. The critiques extend to debate that in trying to present multiple forms of discrimination and oppression, the grounds of intersectionality are used as additive and multiplicative approaches. This often reduces oppression to discrete categories of sexism, racism, heterosexism, classism.³²

4 Feminist Legal Methodologies

This section provides an overview of the development of feminist legal methods in doing and making laws. This extends from asking the woman’s question, to addressing other genders and multiple forms of gender inequality approach, through methods such as feminist judgments and gender mainstreaming applying intersectional analysis (i.e., gender, race, class, sexuality etc.).

4.1 Feminist Legal Methods

What are feminist legal methods? Feminists have long been criticizing law and what the law should entail. Therefore, they have proposed legal reforms which recognize women and other marginalized groups, including provision for, and protection of, their needs and rights in different areas of law.

In order to challenge power structures, feminists have defined their own methods of legal analysis; without having methods, feminists claims about law would have been dismissed.³³ Bartlett explains that “feminists like other lawyers use a range of methods of conventional legal reasoning such as deduction, induction, analogy and general techniques”. However, what distinguishes feminist legal methods from the traditional legal methods is that feminist legal methods try to “unveil legal issues which are overlooked and suppressed by traditional methods”.³⁴

Feminist legal methods are strongly imbued with feminist theoretical and methodological approaches. The following sections explain how feminist legal methods have adopted standpoint theory, by including women’s and other ‘marginalized’ genders into law making and legal reasonings adopting feminist intersectional approach. Furthermore, the section explains how feminist socio-legal scholars have adopted poststructuralist methodologies to problematize gendered power relations. This is achieved through discursive analysis and active engagement with practices of law and society, to rewrite judgments and policies through gender perspective.

4.1.1 From women’s Question to Multiple Gender Inequality

Feminist legal methods are seen as contributor to the modification of traditional legal methods, dominated by heterosexual male perspective. Legal methods were first initiated and adopted by feminists for practical reasoning and consciousness raising on issues experienced by women. Feminist legal methods, according to Bartlett, is about discussions over what kind of methodology feminist legal theory should adopt to identify and problematize the existing legal structure.³⁵ Feminist legal methods started to develop by problematising those parts of law that are discriminatory towards women. In other words, including women’s perspectives into legal methods and ask questions from women’s point of views.

Feminist legal methods, three methods as explained by Bartlett, are as follows. The first method is about asking the question of women, which is applied to expose how the substance of law subtly excludes the perspectives of women. So, feminist legal method considers the experience of women and asks the women’s question in law.

Example

The case of Myra Bradwell vs. State of Illinois in 1873 asked the United States Supreme Court about why women are excluded from practicing law and why women are not included in the privileges and immunities of citizenship according to 14th amendment. This led to Illinois legislation prohibiting gender discrimination in occupation.³⁶

The second method regards feminist practical reasoning that is applied to move beyond the traditional notion of legal relevance in legal decision making. Practical reasoning is more sensitive to the cases, instead of simply reflecting already established legal doctrine. In this method, the reasoning is dependent on women’s context and experiences, which are unique.

Example

The issue of abortion among teenagers is contingent on specific situations. Actual and specific circumstances might not be in favour of pregnant children who ought to obtain their parents’ consent, as it might lead to abusive behaviours of parents forcing pregnancy on the child.

The third method covers consciousness raising, which is applied to examine how legal principles correspond directly with people’s personal experience.³⁷ Consciousness raising is a process through which one reveals experience for collective empowerment. Personal experience becomes a political matter.

Example

Women employ consciousness raising method when they share their experiences of rape and sexual assault publicly through MeToo campaign.

Critiques have raised some shortcomings with regards to the practicality of feminist legal methods focusing on women only. They have argued that the focus on the elimination of bias against women is limiting and such methods will be used by legal professionals who are not necessarily feminists, and certainly not all legal decision makers are concerned about the women’s question. Moreover, feminist legal method is criticized for its biased focus on women and women’s way of thinking, which is discussed to be elevating women over other issues such as disability, racism, poverty and ethnicity to name but a few. It is argued, as a consequence, this would ultimately lead to privilege of women’s experiences over other groups of people.³⁸

4.1.2 Intersectional Perspective in Law

Previously, the dominant kind of civil society activism within the EU had usually focused on one particular identity category when acted against discrimination which resulted in a way that, “the EU equality and anti-discrimination policies addressed specific groups of people as being subject of inequality and discrimination. For example, women, ethnic minorities, sexual minorities were only targeted in relation to one single dimension of inequality and discrimination such as either gender or ethnicity or sexuality”.³⁹ Instead of foregrounding one category over others for addressing discrimination, Hancock has proposed academic researchers should adopt multiple approach to inequality. This approach recognizes that people are not one-dimensional with grounds of inequality being manifold and multiple. In turn, this demands recognition of multiple discriminations in law.⁴⁰ However, an intersectionality approach has been argued to replace ‘multiple discrimination’ approach in research, because the multiple discrimination approach might lead to focusing on inequality grounds at individual level, rather than accounting for discrimination at structural level.

Intersectionality and intersectional perspective in law and policies concerning European institutions has not yet been adequately used to deal with intersectional violence and discrimination. Intersectionality within law reveals and tackles violence against women who are marginalized due to the interplay of different structural and individual reasons.⁴¹ Intersectionality in law is not just about understanding the ways in which discrimination is experienced on grounds of race, ethnicity, gender, sexuality and so on. Intersectional perspective in law also unveils the structural barriers that produce social inequalities.

Intersectionality in law has been discussed in relation to antidiscrimination laws and gender-based violence in Europe. The problem with law is that it does not acknowledge fluidity and intersecting elements of people’s lives. It often focuses on one element of a human being. Most laws tend to adopt a one-dimensional approach. For example, in law on violence against women, the law usually addresses violence as crime that occurred on one ground and that is usually identity.⁴² Other grounds of inequality such as sexuality, class, age, ethnicity, disability in protecting violence against women are rarely considered by legal policies.

Although the legal framework of the Council of Europe’s Convention for Protection of Human Rights and Fundamental Freedoms (ECtHR) allows lawyers and judges to have an intersectional perspective,⁴³ it has remained less practiced on the ground among legal professionals and within legal culture. Namely, given the behaviour and attitudes of legal professionals towards law, it is rare to examine, for example, the intersection of heterosexism or patriarchy in relation to sexist or racial behaviour. To demonstrate this, the cases of forced sterilization of Muslim Roma women in the Czech Republic, Slovakia and Hungry at ECtHR which were either settled or declared inadmissible in 2016⁴⁴ did not involve intersectional analysis of gender, age, class, ethnicity and religion. Bello discusses how the application of intersectionality within legal reasoning can contribute to protection of Roma women’s rights.⁴⁵

An Intersectional approach is also hugely missing within European national and international laws with regards to LGBTQIA+ groups of people who are immigrants, refugees, sex workers, domestic workers, and disabled. The EU policies have not adequately taken an intersectional approach addressing inequalities among and within LGBTQIA+ groups who experience violence and discrimination differently. Moreover, laws and policies often homogenize lesbian, gay, bisexual, transgender, queer, and intersex people as one identity category, lumping them altogether into one cluster of entity. This has often overlooked people’s different needs. An inequality ground for a gay person may not be a concern for a trans persons. The intersectional approach within and among each group would allow for specific and common policy objectives.⁴⁶

4.2 Feminist Socio-Legal Methods

The term socio-legal has a broad definition that might differ in different contexts. The main component of socio-legal study is that it acknowledges the law is not just the product of the state. Rather, it is a product of social processes and practices.⁴⁷ Feminists have adopted social theories in combination with legal methods to criticize the role of law, not as law in the books, instead law in the context in creating and reinforcing gendered relations and practices. During the past few decades, feminist socio-legal scholars have worked with feminist methodological approaches, including poststructuralism and intersectionality, to highlight the “the implications of gendered power relations in law and society”.⁴⁸ (see chapter on Sociology of Law).

4.2.1 Feminist Judgements

As part of critical legal scholarship and legal reforms, feminist legal scholars, judges, lawyers and activists have engaged in specific cases to provide critical analyses of law in construction of gender. In their attempt to re-write judgments, they tackle power relations and problematise judicial and legal norms embedded in society.⁴⁹ Feminist judgements have impacted legal understanding and gender equality policies through socially engaging with matters such as marriage, parenthood, sexual consent, rape, and domestic violence. Moreover, feminist judgements consider the concept of judging as a ‘social practice’ which does not take place in isolation.⁵⁰ (Please see chapter on Feminist Judgement).

4.2.2 Gender Mainstreaming

Feminists have defined and debated gender mainstreaming differently, although the transformative potential of gender mainstreaming, that is revealing patriarchal structures and bringing marginalized issues into the centre of policy and law making, has been consistently valued.

Gender mainstreaming became the focus of international attention through adoption of the Beijing platform for action at the UN conference in 1995. The Amsterdam treaty imagined gender equality within all activities in the EU in 1997. The Council of Europe defined gender mainstreaming as a way to call for “incorporation of gender equality perspective into all policies at all levels and stages of policy making”.⁵¹ Gender mainstreaming involves discursive analysis of the process and practices, through which laws and policies are created. Dragica Vujadinović emphasizes the necessity of gender mainstreaming to a gender sensitive approach within legal education. Vujadinovic shows how this is mostly non-existent in universities across the globe, including universities in developed ‘Western countries’ and the European Union.⁵² Introducing gender mainstreaming projects in different countries depends on their approach to gender equality. For example, a broader approach to gender equality rather than conceiving it in terms of equal opportunities and equal treatment, allows for incorporating gender mainstreaming or a gender sensitive approach in educational practices.

Moreover, gender mainstreaming has provided opportunities for feminists to problematize ‘gender blindness’ at an institutional level, in public services and private matters.

5 Feminist Empirical Methods of Gender Research

This section describes the steps in conducting empirical sociological and qualitative research with a gender perspective. It explains the process of research including research design, research plan, research methods and method analysis. It should be noted that feminist research can be based on empirical as well as theoretical studies.

5.1 Feminist Positionality and Reflexivity

Feminist researchers study power relations, and yet unequal power relations are always present between the researcher and the subjects of research. Therefore, it is crucial to reflect upon the existing unequal power relations between the researcher and the research participants throughout the process of knowledge production. One should begin by clarifying one’s own positionality in relation to the research, as well as one’s position in relation the research participants. Conducting qualitative study based on fieldwork and sharing the findings collected from people, would be best done through destabilising power hierarchies. This is a task that feminist researchers have achieved by applying reflexivity into their theory and methods. Feminist researchers tend to define their positionality within research to avoid claiming objective truth in the process of knowledge production.⁵³

Feminist approaches to mainstream methodology vary, because they try to discover reliable accounts of socially constituted ‘reality’ rather than reproducing the ‘objective’ truth. Feminists have taken different approaches to challenge mainstream scientific methods of knowledge production, which aim to criticize universal criteria for knowledge claim. The feminist approaches that are elaborated in this chapter are: feminist standpoint theory or epistemology, feminist post-structuralism and feminist intersectionality.

As for research ethics, conducting empirical research based on interviews, for example, require researchers to obtain ethical approval; the practical aspect of research ethics. Ethical considerations in research are not limited to obtaining permissions. Ethics involve the ways in which the researcher relates to the research participants, and the data and information gathered from the research participants. Feminist research ethics emphasizes on the coproduction of knowledge with the research participants.⁵⁴ Researchers need to address ethical issues in qualitative research with regards to informed consent, privacy, and protection of information and lives of research participants, during and after the fieldwork.

5.2 Qualitative and Quantitative Research

Due to feminists’ criticism of traditional research being reliant on quantitative methods in the social sciences, increased use of qualitative research is suggested to better understand people’s social life. The dialogue between quantitative and qualitative researchers has continued for decades, as to which method better captures complexities of social issues. The use of quantitative data in conjunction with qualitative material is encouraged by feminist researchers to develop feminist theories.

Definition

Quantitative research has a numeric and statistical approach. It employs strategies and methods of data collection such as surveys and other statistical instruments through which information can be quantified.⁵⁵ Quantitative research consists of experiments that either test or confirm the existing theories. Therefore, the research is independent of the researcher in a quantitative method, tending to give an objective account of reality.

Three broad classifications of quantitative research are identified: descriptive, experimental, and causal comparative. The descriptive approach examines the current situation as it exists. The experimental approach investigates an independent variable in a study and then measures the outcome. The causal comparative approach examines how an independent variable is affected by a dependent variable, before analysing the cause-and-effect relationships between the variables.⁵⁶ Moreover, different methods of examination are used in quantitative research such as correlational design, observational studies, and survey research.

Definition

Qualitative research has a holistic approach. It does not entail a fixed definition, as the nature of qualitative research is deemed ‘ever-changing’. This is due to the variety of frameworks and approaches within which researchers conduct qualitative inquiry.⁵⁷

Common characteristics of qualitative research are: (1) it is conducted in a natural setting, (2); directed by the researcher; (3) involving inductive and deductive reasoning; (4) it focuses on participants’ views; (5) conducted in a specific context; (6) involves flexibility and creativity during the research process and; (7) is based on the researcher’s complex interpretation of the issue, but involves reflexivity.⁵⁸ Qualitative research engages with matters in everyday life, discourses, experiences and practices in a variety of dimensions. Poststructuralists have shown particular interests in qualitative research. Feminist research has had a significant impact in developing qualitative research as exists today. Qualitative methods, particularly face-to-face in-depth interviews, have become definitive of feminist qualitative research. Here we focus on interviews and documents as methods of data collection in qualitative research.

5.3 Research Plan, Design and Strategy

Before going through the steps of planning research, the following aspects need to be addressed:

In order to conduct the research, there are a few fundamental matters that the researcher needs to address. First, the researcher should know about the nature of the phenomenon, entities or the social reality that are in question. What is the research about? Second, the researcher must have an ontological and epistemological position as to how the researcher thinks the world exists, how knowledge about the world is produced and what social reality is made of. These are the epistemological questions: how social phenomenon can be known and how knowledge can be demonstrated.

Example

If the researcher thinks that social reality is constituted of people, relations, institutions, structures, social process, discourses, practices, and rules, the researcher ought to establish how to investigate the social phenomenon in question, within this framework of understanding of social reality.

The answers to such questions form the strategy of the research. Research strategy is about how the researcher outlines the epistemological and ontological approaches to investigate the subject matter of their research. For instance, a socio-legal approach is a way to strategise research.

The next step is to clarify the aim of the research, that is to find out exactly why the researcher wants to conduct the research. It should be noted that the research objectives are less broad than the research aims and they basically pave the way to achieve the research aims.

Example

If the aim of a research is to reduce violence against women in the workplace, the research objectives to achieve this aim would be: (1) understand how violence in workplace is perceived by employers, (2) explore all forms of violence experienced by women during their employment, and (3) investigate employment laws and policy.

The next step is to design the research. Designing research starts after ascertaining the position and approach in conducting the research. Research design is a kind of planning that maps out the ways through which the researcher conducts a study; helping the researcher to conduct an organised and coherent study.⁵⁹ In qualitative research, designing starts from the moment the researcher starts to formulate the research questions, problems or hypotheses. A qualitative research design consists of research questions, methods of data collection, methods of analyses and findings. After investigating the topic and reading the literature, the researcher drafts research questions. The questions can be refined later during the research process. After defining the questions, the researcher maps out relevant information for each question. This information concerns the sources of data and material, how to gather data and how to analyse the data.

Example

In studying violence against women in the workplace, one research question could be how violence against women in the workplace is defined by law and policy makers? To answer this question, the researcher needs information or data from specific sources that can answer the question. The sources of data collection to answer the questions would be legal documents and interviews with stake holders. How to collect data from these sources could be gathered through documents and interviews. After gathering the data, the analysis could be done by applying critical discourse analysis and/or policy analysis. This outline is called research design.

5.3.1 Socio-Legal Research Strategy

How to design research which investigates the subject matter through a socio-legal approach? One way is to examine how policies and practices of gender at individual, meso and macro levels are influenced by, and influence the subject matter in question, within a specific context that is also contingent on socio-historical background.

Studying ‘law in context’⁶⁰ as one of the approaches within social-legal research contributes to the production of knowledge that is informed by people’s experiences and existing social issues. In turn, these are tied to the processes of making and implementing law.

The policy research approach to socio-legal research is concerned with issues related to social policy, regulations, implementation, and enforcement. For example, examining how efficient implementation of law can affect access to justice, can be a policy research. The use of survey to evaluate a piece of legislation is another common policy research.⁶¹

5.4 Methods of Data Collection in Qualitative Research

Based on the methodological approaches explained in previous sections, the following methods of data collection have been adopted by feminist researchers cross disciplines, including socio-legal scholars.

5.4.1 Interviews

An interview is understood to be a simple conversation that constitutes everyday life. It is a valuable method for gathering knowledge from an individual’s experience. An interview constitutes a further way to collect intellectual information in a social process from people.⁶² As Kvale and Brinkmann suggest, the act of interviewing is a craft, which means it is based on practical skills and the decisions made by the interviewer during every step of the process.⁶³ Interview in social research is a guided, informal conversation through which the interviewee and the interviewer contribute to the process of knowledge production. The two sides interact with each other ethically and politically.⁶⁴

Learning how to conduct interviews for social research can be achieved only through engaging in actual interviews. In other words, one learns by doing. However, it is important to consider that interviewing is composed of several general steps. The interviewer logically follows these steps, including; identifying the population, classifying the questions, reaching out to the population, designing the interview guide, determining the location of interviews, recording interviews, transcribing interviews and analysing interviews.⁶⁵

It is up to the researcher to determine what type of interviews are deemed more suitable for answering the research questions; either structured interviews or semi-structured interviews. Semi-structured interviews involve the researchers asking a set of questions from each interviewee. The nature of these interviews, however, allows the interviewee to raise ideas and issues about which the researcher has not thought. This type of interview is flexible and gives the opportunity for the researcher to receive new questions or change the existing ones.

5.4.2 Documents

What are documents? Documents contain texts and sometimes images that have been produced without the researcher’s involvement.⁶⁶ Documents in social research could include a variety of materials, from personal journals to official organisational records or state datasets. Researchers have also identified other documents for social research, such as maps, photographs, newspaper reports, autobiographies, and even social media or SMS conversations. Electronic and digital documents constitute a significant part of documents in our world today, especially within organizations and institutions.

Documents can also be the sort of data and evidence through which people, groups, institutions, and organizations are accounted for. Documents here are tools to enable understanding of social and organizational practices.⁶⁷ Documents exist in many varieties such as legal, medical, financial, personal and so on. In terms of their form, documents can be literary, textual, or visual devices that create information. Therefore, documents are artifacts produced for a particular purpose, representing social conventions, being the analytical component of documents. Amanda Coffey maintains: “documents are social facts which means they are produced, shared and used in socially organized ways”.⁶⁸ Policy documents, legislations, strategic plans, press release, annual reports, newspaper articles are included as such.

5.5 Methods of Analysis in Qualitative Research

Based on the methodological approaches explained in previous sections, the following methods of data collection have been adopted by feminist researchers cross disciplines including socio-legal scholars.

Analysis is a process of generating, developing and verifying concepts.⁶⁹ The process of analysis begins even before starting the research project, as researchers choose a topic in which they have prior ideas.⁷⁰ Researchers require to have some ideas while collecting information about their studies; these ideas continue to develop during the research process and might modify along the way, by going back and forth between ideas and collected information. Analysis is not the last phase of research, as some might think. It is rather a process that actively involves information gathering.⁷¹ Nevertheless, no consensus is achieved among scholars on what analysis means. Despite this lack of consensus, there are common characteristics to all methods of qualitative analysis. These are; reflexivity of the researcher, systematic but not rigid analytical approach, organizing the data, and inductive (that is data led) analysis. In addition, methodological knowledge is required. This does not mean that one should subscribe to one approach only and follow through the entire process. Flexibility and reflexivity should be counted.⁷²

Analysis involves interpretation where qualitative researchers translate other people’s acts and words. It is not straightforward to convey exact meanings, and therefore, some details may be lost in translation.⁷³ Interpretation consequently becomes a never-ending process, as researchers must always consider their data; reflect, reinterpret or amend interpretations. This may lead the researcher to new ideas. The process of analysis according to Denzin and Lincoln, is neither terminal nor mechanical. It is an ongoing emergent unfinished, changeable process.⁷⁴

5.5.1 Thematic Analysis

As a method of analysing data, thematic analysis searches for themes that emerge from the data or information to describe the phenomenon. “The process of analysis involves identifying themes through reading of the data. These themes become categories of analysis for the researcher”.⁷⁵

Thematic analysis can be applied within many ontological and epistemological frameworks. The researcher should make their theoretical approach explicit to the reader, as thematic analysis is a theoretical independent method of analysis.⁷⁶ Thematic analysis does not concern counting predetermined words or phrases, rather, it identifies implicit and explicit ideas in the data.

Thematic analysis is ‘a method for identifying, analysing and reporting patterns (themes) within data’ inductively or deductively.⁷⁷ Due to its flexibility, thematic analysis is suitable for analysing a wide range of data types, for instance; interviews, focus group discussion, textual data (i.e., qualitative surveys, diaries), online discussion forums and other textual and visual media sources.⁷⁸

Applying this method in research requires the identification of patterns, paying particular regard to important issues in relation to the research questions and theoretical framework, which must form some level of prevalence across the whole data. Similar to many other qualitative methods, thematic analysis is not a linear process. The researcher moves back and forth between different phases of the process of analysis. A six-phase analytic process is introduced by Terry et al., which are: “1) familiarising with the data, 2) generating codes, 3) constructing themes, 4) reviewing potential themes, 5) defining and naming themes, and 6) producing the report”.⁷⁹

5.5.2 Document Analysis

In qualitative research, document analysis is applied to close examination of documents to understand how they are authored or produced, including how they are used. Much of the organizational knowledge is stored in documents. Social actors are the authors of documents, and the examination of those documents is one way of understanding how social structure operates.⁸⁰ Documents also represent reality, albeit in a distorted and selective fashion, and can be used as a medium through which the researcher can find correspondence with the subject of study. However, they cannot be read separately from the social, historical and political contexts.⁸¹

‘Document analysis is a systematic procedure for reviewing and evaluating both printed and electronic materials.⁸² Document analysis starts with finding the documents, selecting and synthesizing information in the documents, which then can be organized into themes or categories and interpretation. This process involves content analysis that entails identifying meaningful and relevant passages of the text. Scholars have discussed applying thematic analysis to analyse documents, involving the recognition of patterns within the data and consequently exposing emerging themes.⁸³

Document analysis involves data selection instead of collection. Content information in documents is what the researcher analyses without being involved in gathering it, which is said to be unaffected by the research process. Many documents are publicly available, making it easier for the researcher to access.

Document analysis is used as a single method, in a triangulation, or mixed-methods, where two or more methods are used in research. For example, questionnaires and interviews in research are used in combination with document analysis.⁸⁴ As an illustration, gathering and analysing documents such as state laws and institutional regulations, as a stand-alone method provides the researcher in-depth knowledge about the purpose and intentions of the creators of the documents, and how they are used to shape people’s lives.

5.5.3 Discourse Analysis

Discourse analysis is a method which investigates how meanings are produced within narratives of, for example, conversation, newspapers or interviews. Discourse analysis refers to a set of approaches that can be used to examine the ways in which power relations are reproduced, through the function of language within texts and narratives. Discourse analysis is the result of Foucault’s work on discursive construction of power. Hence, it focuses on how power relations are constructed by means of language. Within social science research, discourse analysis takes a political approach by finding out who is constructed as marginalized and who gains hegemony in social relations. Thus, discourse analysis pays attention to the socio-political context of discourse and conveys how people are positioned by dominant discourses.⁸⁵

Discourse analysis method aims to move away from finding truth, instead working towards the functionality of discourse critically. Critical discourse analysis is an interdisciplinary type of discourse studies, examining how ‘social practices become contextualized as they are represented in discourse in instances of communication’.⁸⁶ Furthermore, critical discourse analysis concentrates on the role of language and communication in discursive construction of social domination, discrimination and social injustice.⁸⁷ The analysing process of research, focuses on the use of language to understand how people, practices and processes are represented, and what the underlying forces of such representations are. However, critical discourse analysis does not simply regard texts, rather, establishing what connects the text to a social context where people and events are produced.⁸⁸

Identifying discourses vary among researchers as there is no one way. In common, discourse analysis involves general steps, as any other qualitative methods, such as; formulating research questions, selection of sample, gathering data (i.e., records and documents etc.) and transcribing, coding data before writing up.

Critical discourse analysis of legal documents such as judicial opinions, statutes, constitutions, procedural laws and administrative laws can reveal the subtle and invisible nature discrimination based on gender, sexuality, race, ethnicity, class, religion, nationality etc.

Example

Discourse analysis of a supreme court’s judgement on refusing a request of a trans woman to gain the custody of her child or visitation, unravels the discrimination based on discursive practices and policies of creating gendered subjects, gendered roles, womanhood and parenthood.

6 Writing a Research Paper

This section elaborates basic knowledge on how to write a scholarly paper; a paper that is the result of either an empirical or conceptual/theoretical research on gender.

Feminist researchers have published extensively on writings of research, especially research based on fieldwork. Feminist writings have paid special attention to reflexivity or reflection, by emphasizing the complex relationship between the researcher and the research participants in the process of knowledge production in various contexts. Writing on issues related to gender requires critical engagement and more of an explanatory than descriptive writing.

Essential skills for writing rationally and effectively are discussed in many textbooks.⁸⁹ These skills include using arguments, building arguments, understanding the cause-and-effect relations, making comparison, using references and describing visual and textual materials.

6.1 Structuring a Paper

The structure of the paper is proven to be the most difficult part of writing for writers. The main and few substantial components of a research paper are basically comprised of the introduction, the main text (theory, methods, analysis), the conclusion and references.

The purpose of the introduction in a research paper is firstly, to provide a rationale for the paper and explain why a particular question within the topic of the paper is being investigated. Secondly, it is important to illuminate on why it is interesting for the reader to know about the topic of the paper, particularly the issue in question.

The theory section describes the theoretical tools and concepts that are used to interpret and analyse data. The method section in the main text of the paper elaborates on what kind of data have been gathered for the purpose of this paper and how. It further draws on the methodological approach that has been adopted.

The section on analysis in the paper discusses the interpretation of data within the adopted theoretical framework.

The conclusion is the final section of the paper. The purpose is to summarize the main points of the paper, restates the thesis of the paper and makes final comments of the arguments of the paper.

To write a clear and organized paper, the writer should be especially confident about the ideas contained within. Moreover, it is important that the topic is written with passion.

Some general strategies are suggested for writing which focus on how to manage an academic paper in a timely manner. Planning and revising are the two general strategies that have been found in writing research.

6.2 Referencing and Plagiarism

Since writing a scholarly paper depends on the research and studies conducted by others, it is crucial for the writer to indicate the used sources. Providing references and citations are important as it shows that first, the writer has read other people’s work on the subject and is aware of the existing literature. As a second function, it allows the reader to find further sources on the topic. Lastly, it prevents plagiarism.⁹⁰

The use of the sources in a research paper can be presented as a citation, summary/paraphrasing or quotation. A list of references including all sources cited in the paper is provided at the end of the paper. There are various referencing systems in academia. Therefore, it is important to know which system to use, and thereafter maintain consistency in referencing throughout the paper.

Plagiarism happens when someone uses an intellectual property that belongs to another without acknowledging or referencing accurately. For example, copying or paraphrasing of texts, images or any other data without correct citation, or acknowledging the source, is plagiarism.

7 Exercises

The aim of these exercises is to encourage students to use the knowledge they have acquired in the course and deepen their understanding about feminist methodology and gender research in a practical way.

Questions

• 1. Understanding feminist Epistemologies in research

  Formulate a research question that investigates a matter in relation to violence and law. Explain the problem and how you understand the problem and why you have chosen to explore it? In your explanation elaborate on your epistemological and ontological approach for carrying out this research.

• 2. Designing research

  Following previous exercise, in a structured manner, map out how you plan to investigate the research question. Specify the data and material, sources, place and time, methods of data collection as well as methods of analysis for each material or data. You are required to justify your choices.

• 3. Structuring a scholarly paper

  Following the last two exercises, write a disposition (no longer than 1 page) where you elucidate how you are about to write this paper based on your research. Explain how each section unfolds in the paper including theory, methods, and analysis.

8 Conclusion

The learning outcome of this chapter is divided into theoretical and practical outputs. As theoretical outputs, students learn about gender research and what it means to conduct research from a gender perspective. This is achieved through understanding feminist research in the process of knowledge production, in turn informing feminist theory and politics. This is particularly important for applying gender in law and legal education. The chapter focuses on three main feminist methodologies: feminist standpoint; feminist poststructuralism; feminist intersectionality, and how they have been adopted by feminist legal scholars in their analyses of law and legal system. Students also learn about the importance of qualitative methods in conducting gender research with socio-legal approach.

Concerning practical outputs of this chapter, students learn how to conduct qualitative gender research and how to write a research paper. The chapter explains methods of conducting empirical research and how they are applied within feminist studies, with a focus on socio-legal research.

With the aim of mainstreaming gender equality perspective in law and legal education, this chapter has provided a glimpse of what constitutes gender research by reflecting on some feminist methodologies. Thus, it has explained the development of feminist methodologies by describing some ontological and epistemological approaches within feminist theories ad practices. Among feminist methodologies, the chapter has gone through three main feminist methodological approaches to illustrate how each of these approaches see knowledge, and how they understand knowledge is produced. The chapter has focused on feminist legal methodologies, to explain the ways in which legal scholars have adopted different feminist methodological approaches to critically analyse law’s perspective on gender. Furthermore, the chapter has shed light on various methods of feminist socio-legal studies, including feminist judgments and gender mainstreaming, to illustrate how feminist legal scholars, lawyers and activists have engaged with such methods that are infused with feminist methodologies, to critically analyse law in construction of gender, and unravel patriarchal and unequal power structures in society.

Critical study of law explores law as a social process that is discursively constructed. Gender research that is conducted by socio-legal scholars points to the lack of gender sensitivity in creating, interpreting and implementing of law. Thus, it deconstructs the ‘black letter’ definition of law as fixed and immutable, and explores an understanding of law as a social phenomenon which has inherited patriarchal elements of male dominance and power relations. Gender mainstreaming in law has been of the utmost importance for overcoming gender and intersectional power relations, insofar as the critical study of law contributes to overcoming unequal power relations throughout all spheres of peoples` lives, i.e. to problematizing ‘gender blindness’ at an institutional level, in public services and private matters.

This chapter, and the book as a whole, aims at gender mainstreaming in legal education with a practical intention to contribute to gender mainstreaming in law as being a rule of the state. This is particularly important in legal education, through which future legal professionals and decision-makers are nurtured to become the promoters of gender equality, social justice and the rule of law.