The Fawcett Society takes the cuts to court

This summer the government found itself in a fix that had never confronted a government before. Budgets are sacrosanct; nobody had ever tried to take a government to court over its budget, still less for a sexist budget – until that day. The Treasury is reported to have been stunned when the feminist Fawcett Society put in an application for a judicial review of its apparent failure to honour its legal duty under the Equality Act to give "due regard" to the impact on women.

The action followed an emergency budget that proposed an initial deficit reduction strategy of tax and benefit changes. Even before the projected 500,000 public sector job cuts (mainly affecting women) were announced, it was clear that women would be the biggest victims.

Nearly three months later, the government has admitted to the Guardian it did "not hold an Equality Impact Assessment for the June 2010 budget". The Fawcett Society continues to wait to see if a judicial review will be granted while it absorbs the details of yesterday's comprehensive spending review.

The legal case centres on the 2006 Equality Act, which imposed a legal duty on governments and public bodies to give "due regard" to the impact on women of all their policies and services, to promote gender equality and to mitigate policies and practices that will have an adverse effect on women. The novelty of the act is that it shifts responsibility from individuals to the state. It puts the onus on public authorities to be proactive in promoting equality.

Until last August, the law had been barely understood, only occasionally tested in the courts and never used to call a government to account for its budget.

A legal expert on equality explained: "The greater the importance, the greater the duty to give due regard. The macro level is the most important level, it affects every other conceivable level. If not the budget, then what?'

The June budget and the predicted heavy cuts in this week's spending review created "a perfect storm", says Fawcett Society chief executive Ceri Goddard, confirming suspicions among many that 2010 was going to be a uniquely regressive moment in the history of sexism and the state.

The perceived draconian nature of the June budget propelled into action the Fawcett Society; a group of politicians (including some parliamentarians who had helped to script the law); lawyers including Karon Monaghan QC, a special adviser to a Treasury select committee, and the forensic solicitor Samantha Mangwana; and the Women's Budget Group, a hub of economics and social science professors.

In the last decade, the Fawcett Society, operating with a small staff in a modest office in Clerkenwell, London, has become a potent campaigner. Goddard, a fast–talking human rights advocate, had only been appointed for a few months when the election and the budget started to consume her waking hours.

The society had canvassed all the party leaders before the general election in May: "Nick Clegg gave us a personal assurance that should he be elected, he'd consider gender impact assessment of the budget," says Goddard.

Labour's Harriet Harman pledged to conduct a gender audit, while "the Conservatives didn't answer our question" but promised to consider "the most vulnerable".

But the first intimations from the coalition, "formed by a collective of men", were worrying and Goddard detected "something more insidious" – the fiscal crisis as a cover for restructuring the state and a more traditional view of women's roles.

Three weeks after the election, Theresa May, the new minister for women and equality, called the Fawcett Society. She was reminded of the society's worries about the impact of public spending cuts on women and "acknowledged our concerns".

The Government Equalities Office made all departments aware of their equality duties. May herself wrote to the chancellor and the prime minister on 9 June warning that the proposed cuts – yet to be announced – could breach the government' s legal duty to promote equality. According to a letter leaked to the Guardian she said that the cuts would pose "real risks that women, ethnic minorities, disabled people will be disproportionately affected" and therefore might attract a successful legal challenge against the government. "Desperate times don't mean the law gets a day off," says Goddard.

At a 17 June meeting of senior stakeholders, including civil servants and the Equality and Human Rights Commission (EHRC), ministers were reminded again. The Liberal Democrat home office minister Lynne Featherstone told the Fawcett Society she would be "really robust in reminding our colleagues in other departments to do their duty".

Meanwhile, in parliament, Yvette Cooper who, when Labour was in power, had become the first woman chief secretary to the Treasury in 2008, opened the Red Book – the detailed budget statistics. Already, Cooper reckoned, the threat to women was palpable: "You could smell it and feel it." But she needed hard evidence.

"In government you can commission research. You say to somebody: 'Do me an analysis of . . .' but out of government we don't have that. So I tried to work out how to calculate the impact. I had my calculator and my computer and I carried the Red Book everywhere." Her parliamentary collaborator Fiona Mactaggart describes Cooper as "intensely numerate".

Thumbing the pages listing the £120bn retrenchment proposed over five years, Cooper "looked at every item, literally", and calculated the impact of each item on men and women. It was bad. Cooper, Mactaggart and former solicitor general Vera Baird (by now out of the Commons and setting up the Astraea Institute, a centre for justice for women), discussed the figures and Baird checked out the law and lawyers.

Cooper finessed questions that needed more complex answers and took them to the impeccably neutral House of Commons Library. When the sums came back, she was "surprised". The burden shouldered "by women taxpayers was 72%". And that was before this week's welfare state cuts. Underlying the government's thinking seemed to be a traditional view of the family as a "private sphere from which the state should withdraw".

"What Yvette Cooper did was so clever and so simple," says Professor Susan Himmelweit, a Women's Budget Group founder member. "She cut through smoke and mirrors, just looked at the money and the direct impact of taxes and benefits."

Cooper felt strongly that what was at stake was women's "costs and choices" – their autonomy. The consequences were not only unequally balanced between men and women, they were "withdrawing choices from women".

The conventional wisdom that things would always get easier for women suddenly stalled. "For the first time," she said, "I started to worry – what does this mean for my daughters?"

The Institute for Fiscal Studies (IFS) – another unimpeachable source – was impressed by Cooper's figures. "Numbers always help, big numbers are powerful," says IFS benefits expert Mike Brewer. "I was surprised by the scale of the difference between men and women. It was stark." To Baird the June budget figures were so alarming that "it seemed inevitable that the Treasury had not done an Equality Impact Assessment". And if not, "that's unlawful. It makes the decisions invalid."

It was no defence to claim that the impact on families, if not women, had been measured. Ministers had already been through those arguments with the Treasury over pensions and child benefits. And during the last decade the Women's Budget Group had drawn the Treasury's attention to the need to assess the impact on women.

Although civil servants describe the Treasury as "hostile" to gender budgeting, the Treasury's own equality scheme published on 30 April 2007 declares: "We aim to make sure that promoting gender equality is integrated fully into the way the Treasury carries out its relevant functions." In its "statement of commitment" it says that its role in "regulating financial markets is bound by the General Duty on Gender".

Budgets will "fully" report on "analysis of the impact of economic and fiscal policy on women . . . encompassing actively the duty to promote equality".

But when Green MP Caroline Lucas – one of the three women in the House of Commons representing independent parties – asked chancellor George Osborne in July whether his department undertook an equalities impact assessment of the budget, he fudged: "I shall let the honourable member have a reply as soon as possible."

"A simple yes or no would have done," commented Lucas.

When I asked the Treasury in July whether it had carried out an equality impact assessment, a spokesman insisted that it had. Where was it published? On the website, said the Treasury. No, it isn't, I replied.

A month later the Treasury sent me a Freedom of Information Act response admitting there had been no Equality Impact Assessment, and adding: "It would not be possible to conduct an Equality Impact Assessment over this broad range of measures."

So it hadn't done it.

Last month, the Treasury missed the official court deadline to respond to the claims under the Equality Act about the June budget.

But this week we witnessed a small revolution: the Treasury did publish an Equality Impact Assessment of the spending review. "They have recognised the duty to consider macro-economic policy," commented a legal expert. "That is a shift from its historic line."

Goddard says: "We are pleased that our action has provided a wakeup call that the Treasury is not above the law on equalities matters, regardless of the economic situation we are in."

But the assessment "is only partial and almost flippant in its lack of detail. The Treasury has explicitly chosen not to undertake any detailed consideration of the impact of benefit cuts, job losses or the slashed local authority budget – the three areas the Fawcett Society identified as particularly harmful to women's future economic independence and financial security."

So, the ongoing legal challenge and political calumny has already had an effect. "This is definitely a win," says Goddard. But the wider battle for the judicial review continues.

The headline and standfirst of this article were amended on 22 October 2010. The original headline suggested that Yvette Cooper was involved in the legal challenge to the budget, which is not the case.