THE ROLE OF LAW IN ADDRESSING GENDER NEUTRALITY AND PROMOTING WOMEN’S RIGHTS

This article is written by Anuja Bansal of Mangalayatan University, Jabalpur, an intern under Legal Vidhiya

ABSTRACT

In the contemporary India, addressing gender neutrality and promotion of women’s rights remain major challenges which need to be dealt with utmost importance. Even though there has been improvement in many areas, discrimination and persisting disparities still hinder gender neutrality. In this context, the role of law becomes crucial in addressing these issues and promoting women’s rights. Recognizing the urgency of addressing this issue, the role of law has emerged as an important tool in challenging gender neutrality and promoting women’s rights. Discrimination on the basis of gender has long been a pervasive issue that has plagued societies around the world. Its foundations lie in ingrained prejudices and preconceived notions that dictate societal norms and expectations for individuals based on their gender. However, in our quest for society free of gender- based discrimination, it is essential to shift our perspective and approach towards a concept of gender neutrality. To truly address gender disparities, we must shift our focus from solely striving for gender equality to embracing gender neutrality. Also, the promotion of women’s rights is a crucial endeavor that strives to dismantle gender-based discrimination and ensure equal opportunities for all individuals.

Keywords:

 Gender neutrality, role of law, promoting women’s rights, gender inequality, discrimination, equality, gender-based

INTRODUCTION

Gender neutrality refers to the concept of treating individuals without bias or discrimination based on their gender. It calls for the recognition that all genders should have equal rights, opportunities, and treatment under the law. Gender neutrality plays a crucial role in addressing and combating gender inequality. By embracing gender neutrality, we strive to create a society that promotes equal opportunities and rights for individuals of all genders. It is a concept that challenges traditional gender norms and stereotypes, recognizing that everyone should be treated fairly and without discrimination based on their gender identity. Gender neutrality fosters an inclusive environment that values and respects individuals regardless of their gender. It seeks to eliminate biases and prejudices that perpetuate gender inequality, enabling individuals to freely express themselves and pursue their goals without facing discriminatory barriers. Gender neutrality advocates the belief that everyone should have equal access to opportunities, resources, and decision-making authority, regardless of their gender by dismantling rigid gender stereotypes and expectations. Implementing gender-neutral policies and practices in areas such as education, employment, and healthcare can help reduce gender disparities and promote a more equitable society.

The pursuit of gender equality and the promotion of women’s rights have been ongoing battles throughout history. While social movements and cultural shifts have played crucial roles in advancing women’s rights, the role of law cannot be underestimated. The promotion of women’s rights is a fundamental aspect of achieving gender equality and building a just and inclusive society. Women’s rights encompass a broad range of issues, including political, economic, social, and reproductive rights. In many parts of the world, women continue to face significant challenges and discrimination, limiting their opportunities and hindering their full participation in society. Legal frameworks and legislation serve as powerful instruments to protect women’s rights, challenge discriminatory practices, and foster gender equality. The role of law in promoting women’s rights is undeniable. Legal frameworks provide a foundation for challenging gender discrimination, protecting women’s rights, and fostering gender neutrality.

OBJECTIVES

The objective of this article is providing a comprehensive understanding of how law can effectively address gender neutrality and promote women’s rights. By examining the legal landscape and relevant legislations, this article seeks to shed light on the role of law in fostering inclusivity, dismantling gender stereotypes, and promoting the rights of women. The article will begin by providing an insight on the concept of gender neutrality and how gender neutrality challenges traditional gender roles, expectations, and biases. The article aims to raise awareness about the importance of gender neutrality in achieving gender equality. It will also delve into specific legal measures and policies that empower women. By highlighting the legal tools that promote women’s rights and opportunities, the article aims to showcase how law can be a catalyst for a positive change in our society.

GENDER NEUTRALITY

The first and most important goal is to comprehend the meaning of the subject matter, which is gender neutrality, before moving in to the core of the topic. Gender neutrality refers to the idea that laws, language, and other social institutions should not make distinctions between roles based on sex or gender in order to prevent discrimination. This gender- based discrimination is brought on by the false perception that certain social roles are better suited to certain genders than others. Gender neutrality emphasizes the non-discriminatory treatment of men and women in society, be it socially, legally, or economically.

‘True equality is where society views you as an individual irrespective of your gender.’[1]

The function of every human being has altered in the twenty-first century as a result of breaking down historical barriers. The concepts of gender roles established in society were dismantled by women leaving the four walls of their homes, causing the world to witness an increase in women’s empowerment and women setting an example for others in their different fields. Women like Indra Nooyi, Saina Nehwal, Mary Kom, PV Sindhu, Aishwarya Rai, and Sushma Swaraj, etc., have demonstrated that females can not only compete on a level playing field with men, but frequently outperform them. In the recent times, many nations, including India, have neglected not only the right implications of women safety laws but also the concept of gender-neutral laws. [2]

‘Gender neutrality is a neutral presentation of gender that does not distinguish between men and women. We can also use it to describe a neutral action towards all people.’[3]

In a gender-neutral society, people are not restricted by societal expectations or stereotypes associated with their assigned sex at birth. It seeks to eliminate gender-based discrimination, ensuring equal opportunities, rights, and treatment for all individuals, regardless of their gender identity. The concept of gender neutrality challenges the assumptions and norms that have historically perpetuated inequality and discrimination. It recognizes that gender is a social construct and that individuals should not be limited or constrained by predefined gender roles, expectations, or norms. India is a common-law nation with a wide variety of cultural traditions, numerous religious groups, and a long history. The Indian constitution has been seen as a crucial component for social progress since it upholds the democratic notion of equality. India maintains political freedoms that are unique among developing countries, but despite socioeconomic advancements, the region is nevertheless plagued by extreme poverty, brutality tied to religion and social class, separatism, and other societal biases.

In India, women’s rights are protected by numerous laws, and they have the right to file complaints against anyone who transgresses such laws. Men and women have the same fundamental rights; however, men’s rights are not as explicit as women’s. Gender neutrality in rape law is urgently required as only women have been deemed rape victims until this point. The majority of IPC laws pertaining to crimes against women solely refer to males as criminals.[4]

Gender neutrality is an idea that has been around for a while. In his 1976 book, ‘The History of Sexuality’, philosopher Michel Foucault introduced it for the first time in an academic context. As more and more individuals begin to understand how important it is for societal equality, it has gained momentum over recent years.[5]

Gender-neutrality has long been misunderstood, and many people mistakenly believe that it means gender equality.

‘An easy comparison to explain the difference would be:

• Gender equality: Equal numbers of men and women are hired at your company.
• Gender neutrality: Regardless of gender, your office picks the best candidate for the position.’[6]

“Possibly, one of the most important steps towards gender neutrality is to use neutral language and to avoid bias towards or against either gender.”[7] Gender-neutral language avoids using nouns or pronouns connected with any one gender, which is important in building safe places. We are seeing a progressive normalization of gender-neutral pronouns as more people come to identify as transgender, nonbinary, intersex, and gender-queer. Using gender-neutral vocabulary, such as ‘people’ rather than ‘men or women’, makes it simpler for non-binary individuals to feel accepted in society.

WHY GENDER NEUTRALITY IS IMPORTANT?

At a time when youngsters are still developing, introducing concepts like gender equality in the classroom will instill the idea that all genders are equal and should not be subject to discrimination. Gender neutrality promotes the principle of equality by ensuring that individuals are treated fairly and without discrimination based on their gender identity or expression. It challenges the traditional binary understanding of gender and strives for a society where all genders are recognized and respected equally. Gender neutrality challenges and dismantles harmful stereotypes and societal norms associated with specific genders. It recognizes that individuals should not be confined or limited by expectations imposed upon them due to their gender. By promoting gender neutrality, society can create space for individuals to freely express themselves, pursue their interests, and fulfill their potential without being constrained by gender roles. It guarantees that future generations would lead India towards a liberal and progressive path, ultimately bringing about a positive social transformation in the society with regard to gender equality.

When we discuss gender equality, we not only open up discussions about women receiving the same chances and respect as men, but we also highlight the equality of the LGBTQIA+ population.[8]

Gender neutrality is a practice that enables you to go beyond the gender barrier and conduct yourself the way you like. “It motivates individuals to exercise their genuine right to freedom of expression.”[9] While there should be economic and social changes done to make society more gender-inclusive, there should also be personal changes made to be gendered-inclusive for everyone. Language and behaviours that are gender-neutral encourage inclusivity and help people feel more at ease and accepted. As a result, identities can engage freely in all facets of society without worrying about being marginalized or the target of stereotypes.

Stereotypes and traditional gender roles can restrict people’s potential and increase disparities between genders. These preconceived notions can be dismantled by creating a gender-neutral environment, which expands opportunities for everyone. It promotes respect for each person’s gender identity and accepts the variety of gender expressions when language and practises are gender neutral. [10]

Gender neutrality addresses and challenges gender-based discrimination in various spheres of life, including education, employment, healthcare, and public services. By adopting gender-neutral policies and practices, we can strive towards a more equitable society where everyone has an equal chance to succeed.

ROLE OF LAW IN ADDRESSING GENDER NEUTRALITY

Regardless of caste, gender, creed, or religion, every human has the right to be treated with dignity and equality. Therefore, gender-neutral rights are crucial for every nation because they guarantee that all of its residents will be treated fairly and with dignity. All genders are treated equally in the eyes of the law under gender-neutral laws, which either clearly state each gender in that particular law or eventually make the language of the law gender neutral.

For instance, a child is defined by the POCSO Act, 2012, as “any person below the age of eighteen years,”[11] without mentioning a specific gender because the word “any” implies equality for all genders. The concept of gender neutrality refers to the idea that laws, terminology, and other social institutions should not assign people to certain positions based on their sex or gender.[12]

Constitutional Provisions-

• “Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
• Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.
• Article 16: Equality of opportunity in matters of public employment.
• Article 21 guarantees the right to life and personal liberty to every person, which includes the right to life, free from any form of violence or discrimination.
• Article 39-A Equal justice and free legal aid

It says that the state shall secure that the operation of legal system promotes justice, on a basis of equal opportunity, and shell, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic and other disabilities.”[13]

LACK OF GENDER NEUTRALITY IN INDIAN LAWS

• Section 375 and 376 of the IPC: Many sexual crimes, including rape, stalking, voyeurism, and sexual harassment, shows predominance of a man. Only a woman can file a First Information Report (FIR) for these provisions.
• “According to Section 375 of the IPC, you have to be a man to officially rape, and a woman to officially get raped. The section does not recognize men as rape victims.”[14]
• There is no law to safeguard a man’s modesty, although Section 354 of the IPC deals with assault with the aim of violating a woman’s modesty.
• According to Section 498A of the IPC, if a husband or a husband’s relative treats his wife cruelly, they may be subjected to a prison term of three years as well as a fine. Although it does happen and is possible, it is surprising that there is no law in India that specifies any punishment if women commit an act of cruelty towards males.
• For an LGBTQ+ individual, violence and mistreatment are a part of everyday existence. Even though these communities are typically targeted by the legal system, laws must evolve in order to account for gender fluidity and the wide range of people who may exist that do not correspond to the established gender frameworks.[15]

The ideal situation would be to have a single, gender-neutral legislation that prohibits sexual assault. “All Indian citizens have equal status under the Constitution. Therefore, all gender identities, including men, women, and the transgender community, need to be protected by the laws against sexual violence, including rape, stalking, assault, and sexual harassment.”[16] In addition to being crucial for achieving equality in society, gender neutral rights also give all people a sense of security. When applied correctly, gender neutrality promotes social harmony and destroys the sense of superiority that frequently motivates criminal behaviour. To ensure that males are also safeguarded, the privilege granted to women needs to be modified. A system where women are safeguarded and men are not harassed with false accusations is urgently needed.

PROMOTION OF WOMEN’S RIGHTS

The promotion of women’s rights is a vital aspect of achieving gender equality and fostering a just and inclusive society. By recognizing and safeguarding women’s rights, we empower women to participate fully in all spheres of life, break down barriers, and contribute to social, economic, and political progress. Throughout history, women have faced discrimination, inequality, and marginalization. However, the tireless efforts of women’s rights activists and advocates have resulted in significant progress. The women’s rights movement has paved the way for legal reforms, social change, and increased awareness about the importance of gender equality. Despite these advancements, numerous challenges persist, making it imperative to continue promoting women’s rights and striving for equal opportunities and treatment.

Women’s status and living conditions were extremely poor in the ancient era. Women were not even recognized as human beings in the perspective of males; equality aside, they were merely objects used to do everyday tasks. Widespread illiteracy, seclusion in cramped, gloomy spaces in the name of purdah, forced child marriage, indeterminate widowhood, stringent fidelity and opposition to widows remarrying, polygamy, female infanticide, sati, violence, and forced child marriage were all issues that affected women.

But over time, the way the world saw and thought about women changed a little. Pandit Jawaharlal Nehru, the first president of modern independent India, once stated, “You can tell the condition of a nation by looking at the status of its women.” The 20th century saw the beginning of the struggle for women’s rights and gender equality in India. Leaders with Western education, such Mahatma Gandhi and others, were the ones who first declared that women and men are absolutely equal in every way. Because of Gandhi’s influence, millions of women—educated and illiterate, housewives and widows, students and elderly—participated in India’s liberation movement during the country’s war for independence.[17]

Promoting women’s rights requires the establishment and enforcement of robust legal frameworks. Laws that protect against gender-based discrimination, ensure equal access to education, employment, and healthcare, and prohibit violence and harassment are critical. By enacting and enforcing such laws, societies can provide women with legal protection and empower them to exercise their rights. Also, legal measures promoting women’s economic empowerment, including equal pay, parental leave, and childcare provisions, contribute to breaking the cycle of gender inequality. The promotion of women’s rights is not only a matter of justice but also a pathway to achieving a more equitable and inclusive society. By ensuring legal protection, empowering women economically and politically, addressing violence, and promoting education and awareness, we pave the way for a brighter future where women’s rights are fully recognized and respected.

IMPORTANCE OF PROMOTION OF WOMEN’S RIGHTS

The promotion of women’s rights is of paramount importance in our quest for a just and equitable society. By actively advocating for and safeguarding women’s rights, we can address gender disparities, challenge discrimination, and create an environment where women have equal opportunities to thrive and contribute to social, economic, and political progress. Women’s rights are human rights, and upholding them is a fundamental principle of justice and fairness. Gender equality ensures that all individuals, regardless of their gender, have equal access to opportunities, resources, and decision-making power. By promoting women’s rights, we challenge the social, cultural, and legal norms that perpetuate gender-based discrimination and reinforce harmful stereotypes. This not only benefits women but also contributes to the well-being and progress of entire societies. Promoting women’s rights is crucial in combating gender-based violence. Violence against women, including domestic violence, sexual assault, and harassment, is a pervasive human rights violation. By advocating for laws, policies, and support services that protect survivors, we create a safer and more equitable society.

Moreover, some groups of women experience prejudice that goes beyond simple gender bias because of things like their age, ethnicity, handicap, or socioeconomic status. An in-depth understanding of the social structures and power connections that frame not only laws and politics but also the economy, social dynamics, and family and community life is necessary in order to effectively protect women’s human rights. Dismantling harmful gender stereotypes is necessary so that women are no longer be perceived in terms of what they “should” do and instead be recognized as unique individuals with their own needs and desires.

ROLE OF LAW IN PROMOTING WOMEN’S RIGHTS

The Indian Constitution not only guarantees women’s equality but also gives the State the authority to take positive discriminatory measures in their favour in order to neutralize the accumulated socioeconomic, educational, and political disadvantages that women suffer.

Fundamental Rights, among others, Article 14 ensure equality before the law and equal protection of law; Article 15 prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth, and Article 16 guarantee equality of opportunity to all citizens in matters relating to public employment.

Constitutional Privileges:

• “Equality before law for women (Article 14)
• The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them (Article 15 (i))
• The State to make any special provision in favour of women and children (Article 15 (3))
• Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State (Article 16)
• The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood (Article 39(a)); and equal pay for equal work for both men and women (Article 39(d))
• The State to make provision for securing just and humane conditions of work and for maternity relief (Article 42)
• To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women (Article 51(A) (e))
• Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat (Article 243 D (3))
• Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women (Article 243 D (4))
• Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality (Article 243 T (3))
• Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide (Article 243 T (4))”[18]

Legal Provisions:

As part of its efforts to respect the Constitution’s mandate, the State has passed a number of laws that guarantee equal rights, combat social discrimination, various forms of violence, and atrocities, and offer support services, particularly to working women. Women may be victims of any crime, including murder, robbery, and infidelity, but crimes that are expressly targeted against women are known as ‘Crimes against Women’. These can be broadly divided into two groups.[19]

1. “The Crimes Identified Under the Indian Penal Code (IPC)
2. Rape (Sec. 376 IPC)
3. Kidnapping & Abduction for different purposes (Sec. 363-373)
4. Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)
5. Torture, both mental and physical (Sec. 498-A IPC)
6. Molestation (Sec. 354 IPC)
7. Sexual Harassment (Sec. 509 IPC)
8. Importation of girls (up to 21 years of age)”[20]

• The Crimes identified under the Special Laws (SLL)

Not all laws are gender-specific, but those that significantly affect women have had their provisions reviewed and amended on a regular basis to keep up with changing needs. Several laws specifically designed to protect women and their interests include the following:

• The Employees State Insurance Act, 1948
• The Plantation Labour Act, 1951
• The Family Courts Act, 1954
• The Special Marriage Act, 1954
• The Hindu Marriage Act, 1955
• The Hindu Succession Act, 1956 with amendment in 2005
• Immoral Traffic (Prevention) Act, 1956
• The Maternity Benefit Act, 1961 (Amended in 1995)
• Dowry Prohibition Act, 1961
• The Medical Termination of Pregnancy Act, 1971
• The Contract Labour (Regulation and Abolition) Act, 1976
• The Equal Remuneration Act, 1976
• The Prohibition of Child Marriage Act, 2006
• The Criminal Law (Amendment) Act, 1983
• The Factories (Amendment) Act, 1986
• Indecent Representation of Women (Prohibition) Act, 1986
• Commission of Sati (Prevention) Act, 1987
• The Protection of Women from Domestic Violence Act, 2005

• Special Initiatives for Women
• “National Commission for Women: In January 1992, the Government set-up this statutory body with a specific mandate to study and monitor all matters relating to the constitutional and legal safeguards provided for women, review the existing legislation to suggest amendments wherever necessary, etc.
• Reservation for Women in Local Self -Government: The 73rd Constitutional Amendment Acts passed in 1992 by Parliament ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas.
• The National Plan of Action for the Girl Child (1991-2000): The plan of Action is to ensure survival, protection and development of the girl child with the ultimate objective of building up a better future for the girl child.
• National Policy for the Empowerment of Women, 2001: The Department of Women & Child Development in the Ministry of Human Resource Development has prepared a National Policy for the Empowerment of Women in the year 2001. The goal of this policy is to bring about the advancement, development and empowerment of women.”[21]

CONCLUSION

In conclusion, the role of law in addressing gender neutrality and promoting women’s rights is of paramount importance in our ongoing pursuit of gender equality and social justice. By examining the legal landscape and relevant legislation, we can appreciate the significant impact that legal frameworks have on shaping societal attitudes, dismantling discriminatory practices, and fostering an environment where women can fully exercise their rights and potential. Through legal protection against gender-based discrimination, laws provide a strong foundation for challenging and combating inequality. Laws play a crucial role in fostering gender neutrality by challenging traditional gender norms and stereotypes. By encouraging the use of gender-neutral language and practices, laws promote inclusivity and respect for diverse genders. Also, the legal framework provides a critical platform for addressing violence against women. Laws on domestic violence, sexual assault, harassment, and human trafficking not only criminalize such acts but also establish support services, access to justice, and preventive measures. It is important that we continue to advocate for robust legal frameworks, monitor their implementation, and work towards a world where every individual, regardless of their gender, can live with dignity and equality.

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[1] Gender equality v. gender neutrality, iPleaders, available at https://blog.ipleaders.in/gender-equality-v-gender-neutrality/ , last seen on 9 July 2023.

[2] Ibid

[3] Gender Neutrality Matters, United we care, available at https://www.unitedwecare.com/gender-neutrality-matters-a-look-at-the-benefits-for-everyone/, last seen on 9 July 2023.

[4] Gender Neutrality in India and it’s Analysis, India law journal, available at https://www.indialawjournal.org/gender-neutrality-in-india-and-its-analysis.php, last seen on 9 July 2023.

[5] Supra 3

[6] Supra 1

[7] Men In Sarees: Why Is Gender Neutral Fashion The Need Of Hour And How Indian Men Are Acing It, India.com , available at https://www.india.com/lifestyle/men-in-sarees-why-is-gender-neutral-fashion-the-need-of-hour-and-how-indian-men-are-acing-it-5534081/, last seen on 10 July 2023

[8] Why do we need gender neutrality, Youth Incorporated, available at https://youthincmag.com/why-we-as-a-society-must-encourage-gender-neutrality , last seen on 10 July 2023.

[9] Supra 7

[10] Why gender neutrality so important, Coco village, available at https://cocovillage.com/blogs/news/why-is-gender-neutrality-so-important , last seen on 10 July 2023.

[11] Section 2 (d) of POCSO Act, 2012

[12] Gender neutral laws, Jatin Verma, available at https://www.jatinverma.org/gender-neutral-laws, last seen on 10 July 2023.

[13] Constitution of India, 1950

[14] Supra 10

[15] Supra10

[16] Is India Ready for Gender Neutrality, Legal services India, available at https://www.legalserviceindia.com/legal/article-93-is-india-ready-for-gender-neutrality.html, last seen on 10 July 2023

[17] Is India Ready for Gender Neutrality, Legal services India, available at https://www.legalserviceindia.com/legal/article-93-is-india-ready-for-gender-neutrality.html, last seen on 10 July 2023

[18] Constitution of India, 1950

[19] Women Empowerment in India: More Needs to Be Done, Legal bites, available at https://www.legalbites.in/topics/articles/women-empowerment-in-india-more-needs-to-be-done-356501, last seen on 10 July 2023

[20] Indian Penal Code, 1860

[21]Important Constitutional and Legal Provisions for Women In India – Woman’s Rights, Legal services India, available at https://www.legalserviceindia.com/helpline/woman_rights.htm, last seen on 10 July 2023