How Far Has Law Moved Away From Binary Understandings of Sex and Gender - Essay Example

?How far has law moved away from binary understandings of sex and gender? Critically discuss with reference to AT LEAST one aspect from part AND part 2) of the course. Introduction Gender issues have always been rampant in many parts of the world. Since the beginning of our human history, gender roles have helped define gender identity and the treatment of each individual person based on gender labels. Issues of discrimination and unfair treatment of women has been at the very core of the gender issue. This issue has prompted legal authorities and governments to set forth laws and regulations to prevent, punish, and regulate gender bias and discrimination. In the years where the feminist movement was strong, the clamour for laws in relation to gender discrimination was very much significant. In the years which followed said movement, civil provisions were implemented, primarily those seeking to prevent the proliferation of abusive and discriminatory gender-based acts. This paper will now discuss how far the law has moved away from binary understandings of sex and gender. It will critically discuss this issue with reference to the understanding of sex and gender and the gendering of the body. This essay is being carried out in order to establish a thorough review of available studies on gender bias and legal processes which seek to prevent and manage its manifestation. It is also being carried out in order to provide this student a detailed understanding of the available legal processes which have been put in place in relation to gender-based issues and activities. Body The terms sex and gender are often interchanged in their use or application. Even if they may refer to similar things, they actually refer to various aspects in a person’s life1. Sex is the anatomical difference between the sexes largely based on how they have developed from birth and to the person’s adolescent years. Under these conditions, females have two X chromosomes and males have one X and one Y chromosome2. The genitalia are the primary determinants of sex. While sex is an anatomical construct, gender, on the other hand is a social construct. It considers the social and cultural disparity which the society sets forth on each gender based on their sex3. How people think and behave in society is based on how society expects a gender to behave. Under these conditions, the social constructs and gender expectation indicate that males are expected to play rough, and females to have a gentler and more refined side4. Males are expected to be physically strong and to play with cars and toy soldiers; females are expected to be physically weak and to play with dolls and non-violent games. The different interpretation and understanding of gender is the main issue for this essay. The current laws are varied based on the countries and the type of societies involved. In the international sphere however, the United Nations has set forth primary laws which are aimed towards protecting the rights of women, veering away from the binary understandings of sex or specific gender descriptions and roles5. The extent to which the law has moved away from binary understandings of sex and gender is a matter which can be evaluated based on specific topics, including the sexing of the body through male and female circumcisions and the sexing of the child. When considering the importance of legal gender, it is important to address different questions that help ensure its significant understanding. Some of these issues are legal by nature and others refer to more social considerations6. The current UK laws on legal gender recognize the male and female designations of individuals which are required for UK birth certificates7. These designations indicate legal sex and gender. These designations are also founded on sexual or anatomical considerations. A legal precedent in the UK on gender refers to the Corbett v. Corbett case in 1970 where the husband of a transsexual named April asked the courts to nullify their marriage because April was legally a male at the time the marriage was celebrated8. The marriage was so nullified and the courts declared that undergoing surgery or hormone treatments would not legally change one’s legally recognized sex. The legal indications and implications of this case were however changed with the Gender Recognition Act of 2004. This act declared that where a gender recognition certificate is issued to an individual, the person’s gender as indicated in the certificate would be recognized as that person’s gender9. This law indicates the recognition of the varied understandings of gender, specifically, the less binary understanding of gender – one which includes social conceptualizations of male and female designations. There are various scenarios where legal gender designations have resulted in varying treatments under the law, often indicating legal relevance. It is well acknowledged that the treatment of men and women is very much unequal based on pay gaps10. Such inequalities come about based on how individuals are observed, treated and recognized. Individuals seen as women are treated differently from individuals seen as men, however they may not be treated in the same way based on legal provisions. Legal gender is not relevant when evaluating issues on women’s and men’s rights and treatment under the law. This is actually the relevance of a person’s social gender based on legal considerations. An example of this would be the management of women as flight attendants in the 1960s and 1970s11. These restrictions were imposed on women and not on male employees. These indications included unmarried, physical attractiveness and age (under 32)12. Age and marriage specifications caused many women to leave their work after reaching a certain age and after marriage. As a result, these women could not reach senior positions and higher pay rates. Aside from these issues, women were also more likely to be victims of domestic violence and sexual assaults within the workplace13. There are important legal decisions which have been made based on gender-related considerations. One case is the Christine Goodwin v. The United Kingdom decided by the European Court of Human Rights in 2002. This case was decided before the Gender Recognition Act of 200414. It emphasizes the importance of legal gender in terms of current legal and social theories. In this case, Ms. Goodwin was able to claim breach in Articles 8 and 12 of the European Convention on Human Rights which pertained to the respect of a person’s private and family life, home, and correspondence as well as the right to marry15. The courts have considered the significance of medical and scientific views in relation to the legal recognition of transsexuals. This view was used in deciding the Corbett case. It is supported by Foucault’s points which indicate how society the society views sexual orientation based on anatomical considerations. The law does not refer to sociologists to assist authorities in their decisions – decisions which may refer to the relevance of legal gender16. However, the law increasingly acknowledges that as science can provide explanations for our bodies, the social considerations do not give sufficient reason to evaluate its significance to the decision. It may be argued that the courts may have supported Ms. Goodwin’s case because of her social experience as a trans-woman, and because of how other people behaved in relation to the social experience. In terms of the parental status of transsexuals in the UK, there is no simple answer to the various issues which have been asked. The UK law still recognizes the fact that the designations of mother and father are different. For married parents, they are usually allocated joint responsibility for a child who is born or adopted; for partners who do not have marital bonds, the parental responsibility is usually attributed to the mother17. This is considered an issue for transsexual parents who want to be recognized as parents because their parent type may not match the legal gender. The binary understandings of gender have also gravitated towards different legal ends. In Australia for example, a 1993 decision by the Queensland Law Reform Commission indicated that routine circumcision of the male infant was considered a criminal act; in various decisions of their courts, similar criminal charges were made on circumcisions, for the act itself, for the non-consensual aspect of the act and for the botched attempts by which these circumcisions have been carried out18. Cosmetic circumcisions of newborn males have also been ruled as illegal and Tasmanian Law Reform has indicated in 2009 that there was a need to reform the law relative to male circumcision19. In England and Wales, male circumcisions have been presumed as legal under their laws, however, the Human Rights Act of 1998 cast doubt on the lawfulness of male circumcisions. The decision in the 1999 Re: J case indicated that circumcisions in Britain required the consent of the parents or the permission of the court who were acting in the best interest of the child20. A legal discussion by Fox and Thomson also indicates how consent cannot be issues for non-therapeutic circumcisions and they argue that the laws do not provide support for the practice of male circumcision21. In Finland, the courts in 2006 had occasion to provide jurisprudence on the matter of a four-year old boy who was arranged for a circumcision by his mother, a Muslim. The Ministry of Social Affairs and Health indicated that there is no legal provision which would settle the issue. The Supreme Court decided that circumcision carried out for religious or social reasons were not criminal offences22. In order to recognize non-binary definitions of gender, female circumcision has also been met with various legal provisions. In general, female circumcisions are not conventionally accepted practices; however, for some cultures, it has been considered a norm. In applying the strict interpretations for non-binary expectations of various activities, circumcisions must apply to both men and women, and if prohibited, must also cover prohibitions for both genders23. Not all countries have accepted this tradition. For the countries which have accepted its practice, the legal determinations have been based on similar legal considerations on male circumcisions. In general, female circumcision, otherwise known as female genital mutilation (FMG), has been defined by international laws as a human rights violation because it is a procedure which causes the removal of health sexual organs without any medical justification. It is also carried out on adolescents, consequently leading to negative physical consequences24. Its impact has been considered very much traumatic on these women and children. The Convention on the Rights of the Child and the Convention, the Elimination of All Forms of Discrimination against Women, and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa expressly indicate that FGM is a harmful act which violates human rights25. The legal prohibition here is not strictly founded on the same considerations as male circumcision. It is based more on physical considerations which label FMG to be a physically dangerous practice which can lead to consequences more dangerous than male circumcisions26. Under these considerations, where male circumcisions carry legal prohibitions based on the lack of consent, FMGs are legally prohibited due to their superfluous nature and their possible harmful consequences. Social and cultural considerations have been considered only as far as they help explain the practice of FMGs, however, the current legal processes now acknowledge the importance of upholding human rights over social and cultural considerations27. It is however important to recognize that cultural practices for some countries, especially those in Africa, do not perceive the practice of FMG as a human right violation. The determination of human rights standards are a western construct which perceive FMGs to be deplorable acts which violate their standards28. The world has more or less gravitated towards western views and as a result, their standards have been expected from most societies. The passage of laws against FMG has proven the strong impact of western views to the rest of the world, including those who have not traditionally considered FMG to be a human right violation. In the UK, FMG has been deemed illegal. Equality Now has been assigned as the Secretariat of the cross party Parliamentary body which focuses on FMG practice in the UK29. Through this group, specific action plans on the banning of FMG has been established. The Home Office also secured the Health Passport in order to protect daughters from being subjected to FMG by extended family members who seek to carry out the procedure on them without the consent of their parents30. If found guilty of violating such Health Passport, parents or family members who are not citizens may be deported to their countries of origin. Strong efforts to eliminate FGM have been set forth in the UK especially in the 1980s when it was discovered that girls from Africa were being subjected to the procedure31. The Prohibition of Female Genitalia Circumcision Act in 1985 was one of the first acts to explicitly ban the practice. However, issues remain in the full prevention of this practice, especially among communities who apply this practice. In the past 30 years however, major progress in the prevention of FMG have been made in the UK. The awareness levels on health and human rights have increased and NHS clinics have promoted gynaecological care for women and have helped protect females against the unfavourable practice of FMG32. In 2003, the Female Genital Mutilation Act strengthened the laws against FMG, making it a criminal act for any UK national or resident to undertake. Efforts have also been made in declaring the FGM is a form of child abuse and a form of violence against women and young girls, with culpability imposed on parents, family members, and caregivers for these acts33. Through these practices in the UK, gender-based perceptions seem to be founded on what each person is entitled to under the laws, regardless of gender. In relation to private violence, including domestic abuse and sexual violence, the laws have also gravitated towards provisions which would eliminate expected gender expectations. In effect, the protection of human rights and freedom from physical and sexual abuse has now been set for men and women, specifically managing risks on women34. Under these considerations, the legal distinction and protection is still gender-based because women are specifically protected by these provisions. However, since these women have traditionally been at the receiving end of abuse and discrimination, these laws more or less place the women on an even plane with their male counterparts. Laws seeking to protect women against violence have been passed within the international and domestic sphere. In 2004, the Spanish Protection from Violence Act was established in order to protect women against different forms of violence, including sexual aggression, threats, coercion, and compulsion35. Other countries have also set forth their own similar policies. Moreover, gender-sensitivity trainings have been set-up by law enforcement officials in order to support gender-based laws. In Brazil and Paraguay, these trainings have been made a compulsory part of the curricula for police trainees36. In Luxembourg, trainings on how to manage domestic violence among police officers have been set implemented. These same trainings have also been established in South Korea, Chile, Netherlands, Bangladesh, and South Africa37. The regular review and reform of the laws have also been implemented in various territories, most especially on ways to address violence against women and international human rights. The Convention of Belem do Para set forth laws addressing violence against women in countries in the Latin America region38. These provisions have helped to ensure provisions on domestic violence in countries like Belize, Peru, and Puerto Rico, further enhancing their applicability. In Canada, individuals accused on sexual violence are now required to carry out steps in order to determine whether there was consent; the burden of proof is not on the victim to establish resistance39. Exemptions on marital rape have also been eliminated, with various states criminalizing marital rape. Lower penalties for honour killings among family members have also been eliminated, ensuring that the perpetrators would be punished in the same way as other perpetrators of murder or violence40. Psychological and economic violence have also been included in the legal classifications of domestic violence in countries like Costa Rica, Guatemala, Honduras, and South Africa. Vigilant prosecution policies indicate how gender-based acts are serious crimes which cannot be condoned by authorities. Persistent issues relating to the prosecution of these crimes are however curtailing the effective protection of women’s rights because even when perpetrators are convicted, their sentences are often not commensurate to their crime41. Nevertheless, important policies have been set forth in order to support the protection of women’s rights against domestic violence. These policies include the Family Violence Intervention Program in Canberra Australia. This program is meant to ensure that domestic violence cases are not dropped and that other agencies can help provide supporting evidence on the existence of such acts of violence42. Commensurate sentencing has also been indicated through minimum terms for domestic violence crimes with countries like Sri Lanka issuing minimum prison terms for acts like rape43. The UK also evaluates the sentencing for domestic violence cases, ensuring mandatory appeal for lenient sentences in these cases. In terms of securing the human rights of women in the UK, the country does not fare well. Only 19.5% of the MPs in the country are women which ranks the country 69th in the world in terms of female parliamentarians, behind countries like Afghanistan and the United Arab Emirates44. In terms of implementing laws in the UK, women do not have much of a say; within the legal system, two-third of the women are there for nonviolent offences, compared to 45% of men and since the 1990s, women’s population in the prison has increased by 60% compared to only 28% among men45. Women have yet to benefit from women’s freedoms which have been indicated in various laws in the UK. About three million women in the UK are said to undergo human rights violations including rape, forced marriage, violence, and domestic abuse on an annual basis46. In effect, although the laws of the UK may have gravitated towards the establishing of less divisive gender determinations, the UK society has yet to establish and secure the strong implementation of gender parity. In relation to the gendering of the body, specifically on the viewpoint of women being carers and men being breadwinners, labour laws have set forth various provisions which seek to protect the rights of women to fair wages and promotion, with conditions similar to those enjoyed by males. Labour laws from different countries have secured these provisions, further ensuring women’s place in the labour force47. In recent years, discussions by legal experts like Grabham has highlighted considerations relating to legal technologies, including adjudication and case reports, creating discourses which have ensured a specific understanding of the flexibility at work48. Further discussions point out however, that in the actual setting, the legal frameworks are still not properly set for more neutral work environments for women, especially as some jobs “condemn women to precarious work and require women to adapt to employer-driven flexibility”49. The labour laws which have been indicated to protect the rights of women workers focus on the allocation of fair and equal treatment and opportunity for all workers, regardless of gender. International labour provisions indicate principles of equal pay, equal opportunity, and equal treatment of men and women workers. These are the minimum standards of labour50. Specific countries may improve on these standards and provide more provisions for protection, including longer maternity leaves and other provisions. Laws applied to individual cases may therefore be based on international and domestic provisions. Supranational laws may also be considered relevant. The European Community has already ensured various directives in relation to equal pay, equal treatment, and equal opportunities for men and women51. European standards actually have more requisites on equality specifications as compared to national standards; these European standards apply to all members of the European Union. Decisions by the European Court of Justice also apply to all member EU states52. There is therefore a strong interconnection between the local, international, and regional instruments on the standards of labour. Other regions have also adopted this regional trend as they have passed the CARICOM or the Caribbean Community provisions for legal harmonization. Some of the legal standards passed by this community have included the equal treatment of men and women in employment53. Conclusion The discussion above indicates how the law has moved away from the binary understandings of sex and gender. The binary understandings of sex and gender acknowledge the fact that men and women have designated gender roles and societal expectations; and such expectations and roles have traditionally driven their legal rights. As men have been expected as the breadwinner, the stronger sex, or the more dominant gender, women have occupied the opposite end of this spectrum. As such, gender-based discriminations have been rampant throughout the years. In the past few decades, with the birth of feminism and the support of human rights provisions by the international and domestic authorities, equal protection of rights have been indicated for both men and women. These provisions have helped place women on an equal plane with their male counterparts in terms of their work and other societal expectations. The implementation of these laws are a different matter however because gaps in the implementation are still ever present issues in general society. Only with strong policies and even stronger implementation provisions can any true and effective changes in the management of gender issues be seen. Read More