Legal victories that bring about significant societal change are often referred to as “landmark” or “ground-breaking.” There can be a tendency to hold them up as standalone success stories, detached from the less significant, or even less “successful,” legal work that happens around them or has led to them. When litigating for change, all efforts can have impact and play a role in moving us towards the world we want to live in.
Where litigation is being leveraged in campaigns, we need to be prepared to take the rough with the smooth. This means accepting that there is no such thing as a solo “landmark” case. Instead, legal actions often play mutually reinforcing roles as part of a multi-pronged and long-term strategy for change.
Indigenous land rights in Australia
Take, for instance, the 1992 Mabo case. It is a well-known Australian case that recognised the land rights of indigenous Aboriginal and Torres Strait Islander peoples. These land rights are known as “native title”.
This decision followed a ten-year legal battle led by Edward Koiki Mabo, but it also came after an earlier legal campaign in the 1970s by the Yolngu people. This earlier legal effort ended with the Australian courts refusing to recognise native title as being part of Australian law.
Despite this early setback, the Yolngu people’s case still led to the establishment of the Aboriginal Land Rights Commission and the eventual first legal recognition by the Australian Government of Aboriginal lands in the Northern Territory. These were significant milestones that preceded the legal victory in the Mabo case, a legal victory that would itself overturn the earlier negative court decision in the case taken by the Yolngu people.
Trans rights in Europe
In the same year as the Mabo case, the European Court of Human Rights reached its decision in a case called B v. France. This decision was the first time the European Court held that a trans woman’s rights had been violated after she was not allowed to amend her birth certificate to match her gender identity. It was a step forward for the court, as it followed years of unsuccessful trans rights legal cases that had sought similar recognition of the rights of trans people to make changes to their legal gender.
Even with this progress in the early 90s, cases continue to be brought to the court today in the hope that it can further advance protections for trans people. For example, the European Court has still to endorse unconditional gender recognition laws, which allow individuals to change their legal gender and/or name without fulfilling restrictive requirements.
Furthermore, earlier this year, the European Court considered, for the first time, a case seeking legal registration of an intersex person as “neutral” or “intersex.” The European Court refused to find a violation where such registration had been refused by the French authorities. Therefore, there is room for improvement when it comes to the rights of intersex people too.
Desegregation in the United States
The US case Brown v. Board of Education has been celebrated as a watershed moment in the history of the US civil rights movement. It saw the US Supreme Court rule, for the first time, that racial segregation in public schools was unconstitutional. However, it was not the first time that racial segregation was challenged before the US courts. Instead, it was a breakthrough moment in a long history of legal resistance against segregation.
For instance, the decision in Brown effectively overturned an earlier case called Plessy v. Ferguson, a case that was taken in 1892 by Homer Plessy. He was a shoemaker and activist of mixed heritage, who sat in a “whites-only” train car in Louisiana and refused to move. This was a planned act of civil disobedience intended to challenge a specific law, Louisiana’s Separate Car Act 1890, before the courts. This law required “equal, but separate” railroad accommodations for white and non-white passengers.
Homer Plessy’s case progressed up the American court system over the next three years, culminating in a decision from the Supreme Court in 1896. This decision upheld Louisiana’s “equal, but separate” law as constitutional. A devastating outcome, as the decision effectively endorsed racial segregation laws in the States, and Homer Plessy himself went on to be fined for violating the Separate Car Act.
It was not until the decision in Brown that the “equal, but separate” policies, that were legitimised by the Supreme Court decision in Plessy, lost their constitutional protection. These two cases challenging segregation were decided 58 years – to the day – apart from one another, and with very different outcomes.
Yet, even with the decision in Brown, the legal fight for racial justice in education and an end to segregation in schools continued, and continues, in the US.
In fact, a year after the decision, the US Supreme Court itself had to deliver another decision in a case that came to be known as Brown II. At the time of this decision, many all-white schools in the US had refused to follow the decision in Brown and, in Brown II, the US Supreme Court ordered that schools be integrated with “all-deliberate speed”.
The civil rights lawyer and one of the originators of critical race theory, Derrick Bell, was involved in over three hundred desegregation cases in his decade-long legal career after the decision in Brown. He said that the decision in Brown did more to improve America’s image than it did to actually improve Black lives.
Brown v. Board of Education is an important decision but, like the Mabo case and B v. France, it is not a “cure-all” kind of court case. These cases are successful battles in legal wars that continue to this day.
Leveraging litigation is not about taking the one case that changes everything all at once, but about long-term and sustained use of the courts, alongside advocacy and campaigning, to reach a desired goal. We need to be prepared to fight for the long haul.