Justice and Gender: Sex Discrimination and the Law

Introduction

In the contemporary society, gender discrimination has been taken as an obvious phenomenon. This essay will seek to explore this topic of sex-based disadvantage by taking an analytical look at how the law reflects, reinforces or challenges this constant pattern of inequality. Matters of gender discrimination have been the core of feminist theorists and scholars, dominant ideals of women rights organizations and movements are constructed on liberal individualistic values where sex should not been given a chance in constraining human opportunities. Feminist theorists derive their relevance from women’s collective experience.

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There has never been a universal understanding of gender equality leave alone the strategies needed to achieve it instead there has been an agreement concerning its importance. The modern world has witnessed considerable changes in gender roles but still there have been certain patterns of gender inequality which are still evident. Sex discrimination is still evidenced in areas of education, employment, reproductive freedom and political representation. In this regard, women are still underrepresented in highest economic and political positions of power and also remain underrepresented in the lowest socio-economic sectors. Consequently, there have been widespread cases of sexual violence and insecurity of reproductive freedom.

The eradication of sexual discrimination is still a mirage because women are the minority in positions that shape public policy in these areas. According to the American equal-protection doctrine, equality is understood as similar treatment for those similarly situated. This therefore implies that sex-based discrimination remains a justified act if the sexes are distinct in some sense that is related to acceptable regulatory purposes.

An example is that women’s distinct reproductive capacities have existed to legalize a lot of restrictions in employment, family and education environments. There have been a lot of efforts to understand the harms of sex-discrimination and the strategies that can be applied to address them. Sex- based discrimination can lead to sex-based stereotypes hence perpetuating sex-based inequalities. The term sex was arrived at after feminist scholars realized that gender and feminism are imprecise in form. Sex refers to biological differences between men and women whereas gender is understood to be culturally constructed differences and can particularly be role oriented (Rhode, 1991, p. 3).

Autonomy

Autonomy is understood as “the right of women to make decisions regarding their fertility and sexuality without violence and coercion” (Shalev, 1998, p. 1). This right has been quarantined by the Women’s Convention. The right of women to make fundamental decisions concerning their “health decisions in general and sexual and reproductive decisions to be specific is derived from fundamental human rights to liberty” (Shalev, 1998, p. 1). The value of the concept of autonomy is contained in its freedoms that it guarantees women based on their equality with men, it is inherently linked to basic human rights such as liberty, dignity, bodily integrity and privacy. Autonomy succinctly implies to positive right to freedom. This is because every individual is entitled to “recognition of ones capacity as a human being and their right to exercise their choices in matters regarding to their lives” (Shalev, 1998, p. 1).

Raz conceptualizes personal autonomy as the ability of people to control their destiny and to fashion it throughout their successive decisions on their lives, he justifies this fact through morality of freedom. According to Raz, personal autonomy is critical because it is an essential ingredient in ones life and it is this personal autonomy that women are fighting for since it will give them an opportunity to have control over their lives.

Sexual Discrimination

Sex discrimination is a violation of right to equality. According to Women Convention, discrimination against women is defined as: “any distinction, exclusion or restriction made on the basis of sex and which has the effect or purpose of impairing, or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status on basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or in any other field” (Shalev, 1998, p. 1).

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The power of women to make autonomous decisions concerning their sexuality was for the first time recognized at the Fourth World Conference on Women in Beijing. The three central issues that link women’s autonomy to their sexual orientation are: the universality of women’s human rights, the right of women to make their choices regarding matters touching on their sexuality without coercion and freedom from any form of sex- based discrimination (Day, 2000, p. 46).

The fundamental struggles for women’s human rights are on matters surrounding sexual and reproductive autonomy and the coercive and often violent ways in which that autonomy is suppressed. Majority of gender-based violence that is inflicted upon women by men are purposely geared towards restricting their sexuality and their reproductive capacity. Sex discriminations of this nature range from the killings of women who have sex outside marriage, marital rape and the targeting of women during conflict. These sexual discrimination and the violations of reproductive rights of women are happening throughout the world yet they are prohibited under international law.

Sex discrimination has diminished over time due to change in attitudes; this change in attitudes has been necessitated by widespread campaigning, intense lobbying and advocacy by human rights defenders. The desire to establish the links between sexuality, reproduction and gender-based violence has been complemented by the work of defenders and activists. These coalitions of defenders have realized their objective by persuading the international community to affirm sexual and reproductive rights in United Nations declarations and its consensus documents like the Program of Action adopted in Cairo during the Population and Development conference in 1994 and the Beijing Platform for Action during the United Nations conference on women a year later (Amnesty International, 2007, p. 1).

The production of the book the feminist Mystic by Betty Friedan marked the beginning of women consciousness. In her book, Friedan documented all the injustices meted against women including dehumanization and the identity crisis. This marked the development of numerous litigation cases and campaigns which demanded an end to all forms of sex-based discrimination whether in employment or education. There were also several campaigns against obscene and pornographic materials which degraded the dignity of women. The activists also succeeded in securing the reproductive autonomy of women in the issue of abortion and voluntary sterilization.

According to human rights activists, matters concerning human rights in general and sexual rights in particular should be linked to the following three main issues: universality, sexual rights and sexual orientation. The struggle for the recognition of the right of women to sexual autonomy encompasses all forms of oppression including those experienced by the lesbians. It is argued that the vulnerability of women to sexual coercion is a fundamental dimension of women’s inequality. In this regard, when the autonomy of women is not recognized then women will not as well be recognized as fully independent human beings. In this context, several women are coerced into unwanted relationships with men due to their religious, cultural, social and economic pressures and furthermore by way of violence. Consequently, women who reside alone due to natural aspects such as being divorced, widowed or because they did not marry suffer a lot of discrimination like being penalized socially or economically.

In the contemporary world, penalties are inflicted on women who enter into relationships with other women. These coercive forces that deny women their autonomy to define their sexual relationships including whether to be lesbians are in some countries strengthened by legislations which are products of under inclusive social and economic benefit schemes which are a preserve of heterosexual marriages. The bargaining power of women in the legislative bodies is very low due to their under representativeness. This has had the impact of government failing to prevent the killing and the beating of women for being lesbians or for abandoning their husbands. It is evident that women will not be entitled to their human rights until their autonomy over their sexuality and reproduction including their freedom to have sexual relationships with both men and women and the freedom to bear and raise children without support of the men is guaranteed (Day, 2000, p. 46).

Universality is instrumental in the understanding of sexual autonomy and sexual orientation matters. Culture and religion have trumped over women’s human rights and in the ancient world, the rights of women to sexual autonomy or the right of lesbians to live without discrimination and persecution were defined by religion and culture.

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Not all groups of lobbyists or gender activists support advancement of women, but there is a group that is opposed to it especially when it comes to the right of women to the enjoyment of sexual and reproductive autonomy especially religious-based states. This group acknowledges that the equality of dignity between men and women should not include the equality to roles and functions and to them the true equality of women and men can only be achieved if the specificity of women is safeguarded.

Sex equality is a fundamental principle of human rights; it has been repeatedly held that pursuit of equality of all sexes is one of the objectives of member states. The Council of Europe has proclaimed gender equality a key principle of the Convention. Despite these efforts, there still exist several cases of sex discrimination which marginalizes women. A notable case of sex discrimination is the Islamic headscarf case in the United Kingdom which was described as paternalistic, sectarian and insensitive form of discrimination. Men and women are different socially and biologically but since sex discrimination has taken the form of indirect discrimination, jurisdictional cases of sex discrimination have been brought by men yet women are the ones affected (Radacic, 2008, p. 847).

Issues concerning sexual orientation and discrimination were not elaborate in the international human rights legal regime until when Brazil introduced a resolution in 2004. The Implicit protection against sexual discrimination emanated from interpretation of treaties especially the International Covenant on Civil and Political Rights (ICCPR) and the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child. Sex discrimination derives from particular sets of assumptions concerning stereotyped roles and behaviors that are linked to them. CEDAW makes tendency to combat the notions of specific gender roles by advocating changes in gender related roles in the society.

International law discourages all forms of sexual discrimination and it makes it unlawful but majority of the states have resisted acknowledgement of these treaties due to social and religious reasons (Kukura, 2005, p. 183). The interaction between poverty and sexual discrimination has been linked to the feminization of poverty. The engendering of poverty is considered a form of discrimination between men and women. Women demand autonomy in matters concerning rights to life, abortion, reproductive health like family planning, equality before the law and informed consent.

Women demand non- discrimination in resource allocation. The implementation of the structural adjustment program has led to the rising costs of medical technology and medical budget, this in turn affect the health of women. The biasness that is linked to provision of health services and health needs of women is considered a form of discrimination. Some countries like Croatia removed abortion form its list of medical services. The reduction of maternity healthcares in Azerbaijan is an example of sexual discrimination. Consequently, women are discriminated when it comes to matters of right to life; there are cases where a country enlists several deaths as a result of complicated pregnancy and childbirth. This is as a result of government’s failure to prioritize maternal health services attached to women’s special needs.

With regards to abortion, there have been several laws in various jurisdictions where abortion is criminalized despite the fact that it is the only medical services that women need. This is considered as discriminatory in form. The recognition of the autonomy of women is the minimum threshold that is needed for the principle of equality and the emancipation of women from all forms of discrimination to be realized. Those women who are against the actualization of equality between men and women input religion and culture to legitimize the oppression and subordination of women in the society. Women will only realize and enjoy equality if they are allowed to generate autonomous decisions relating to their sexuality without any force and free of bias.

References to sexual discrimination have been mistaken only as reference to discrimination against women, but in the contemporary world, there are numerous cases of sexual discrimination against men. This has been conspicuous in the case of gay people. The government’s role in enforcing the heterosexual relationship principle discriminates against the gay especially by punishing them (Greig, 2006, p. 2).

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Women have been victims of pregnancy-based discrimination and they can not challenge these forms of discrimination because they exclusively depend on the work to support themselves. Consequently, they can not challenge this form of discrimination because they lack autonomy and control over their sexuality. The reluctance of women to challenge discrimination at the work place is due to the inability of labor adjudication system which is less equipped to remedy all cases of pregnancy- based sex discrimination.

It was after the Beijing Women Conference that sexual discrimination was eliminated to a greater degree. Countries granted women autonomy to make decisions that concerned equality of all sexes.

Conclusion

The discrimination against women is more evident in reproductive health. The reproductive decisions of women are prevented by indiscriminate laws which protect the interest of the fetus as opposed to the health of the mother. These laws have been considered as conservative and were formulated those days when the role of a woman was to be a mother and a caregiver. According to biological differences, every society places particular rules, regulations and responsibilities on both men and women. A strict look at these rules and regulations will be evidences of discrimination. Discrimination of women and men often leads to the social, political and economic subordination of women.

Various human rights activists have introduced concepts as autonomy, gender equality and women empowerment to describe the need for emancipation of women. The analysis of sexual equality in the context of reproductive rights is necessary in analyzing the basis of sexual discrimination with reference to autonomy of women. It is argued that the government should not limit woman’s bodily autonomy and any law that imposes gender-specific burdens on the sexual and parental role will be considered discriminatory.

There have been numerous conferences held to affirm the end of sexual discrimination. The most fruitful of all the conferences was the Beijing conference of 1994. It is this conference that recognized autonomy as the key to the emancipation of women in the society. Autonomy is only centered on women having the capacity to control their reproductive health. The striking form of sexual discrimination is in reference to abortion and pregnancy where women have been discriminated against most.

References

Amnesty International. (2007) Defenders of sexual and reproductive rights. Web.

Day, S. (2000) Women’s sexual autonomy universality, sexual rights, and sexual orientation at Beijing conference, Canadian woman studies, vol.16 (3), pp. 46-54. Web.

Greig, A. (2006) Sex and the rights of a man. IDS Bulletin Vol. 37 (5). Web.

Kukura, E. (2005) Sexual orientation and non-discrimination. Peace Review: A Journal of Social Justice, Vol. 17, pp.181–188. Web.

Radacic, I. (2008) Gender equality jurisprudence of the European court of human rights. The European Journal of International Law Vol. 19 (4), pp.846-857. Web.

Rhode, D.L. (1991) Justice and gender: sex discrimination and the law. Harvard: Harvard University Press. Web.

Shalev, C. (1998) Rights to Sexual and Reproductive Health – the ICPD and the Convention on the Elimination of All Forms of Discrimination against Women. Web.

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