This article has been authored by Surabhi Mehta, a second year law student at Xavier Law School, St. Xavier’s University, Kolkata.
Institutions in our society are often seen as preserving and perpetuating the concept of who is a man and who is a woman, deliberately giving rise to what is referred to as ‘gender roles’. The society has conceptualized men as being the favorable gender, or rather the dominant, stronger, and powerful, and women, being submissive, inferior, and weaker section of the society. For this patriarchal driven society, men and women are the only two natural genders and anything diverting from this is not normal and deemed to be unnatural. Our society have inculcated in our roots that only two default gender exists which has therefore resulted in a biased mindset and made us far behind in adopting an inclusive environment for all. The society maybe fails to understand that this is not right and instead of being inclusive, the society entails guidelines or rather, benchmarks of being a man or woman which gets imposed on a person by birth. This not only makes the queer community feel excluded, but also creates pre-assigned expectations that are associated with the gender of a person. Firstly, the very concept of assigning the gender of a new born child itself is ambiguous. How can one be so sure that a male born child will grow up to be comfortable identifying as a male? This standardization is very harmful both for the individual and also for the society at large in the long term. If an individual does not comply with the determined expectations of the society, he/she/they will feel excluded and will be ridiculed for behaving differently, or rather for being queer (different). Secondly, where is the reasonableness of such distinctions? Why do we need such kind of distinctions regulate the role and choices of an individual?
Who is a woman: A feminist perspective of the societal construct.
“Do I wear pink because I am a woman, or am I a woman because I wear pink?”
I begin my understanding with the above mentioned line. What is gender and what is the difference between gender and sex? The very basic misconception with the use of the term ‘gender’ is that it is interchangeably used with ‘sex’. Although, this is not the right way. “Gender” is the term we use to refer to how a person feels about himself as a boy/man or feels about herself as a girl/woman. Gender identity, used to describe the traditional social roles for males and females, is the term for how a person self-identifies in terms of being a boy/man or girl/woman. ‘Gender Identity’ is how someone feels on the inside, the extent to which one identifies as being either masculine or feminine and ‘Gender Expression’ describes how someone chooses to present their gender to the world. 'Sex', on the other hand relates to the biological distinction assigned at birth. Sex is defined by genitals, including internal sex organs, chromosomes and hormones. It refers to physical or physiological differences between males and females, including both primary sex characteristics (the reproductive system) and secondary characteristics such as height and muscularity. However, even sex cannot be a complete biological concept as there have been debates that raise the concept that even sex of a person is a social and variable process. Hence, a mere reading of these will again raise a question that where is the distinction between a man and a woman. Gender relates to the concepts of masculinity and femininity. But where lays the definition of being masculine or feminine?
A feminist reading of the same will question the very basis of this distinction. The society has framed these concepts of masculinity and femininity by relating valour and pride with signs of the former and relating meekness and humility with signs of the latter. A deeper introspection on these concepts will then make us realise how they are weird and subjective terms and gives rise to social distinctions associated with being male or female leading to the birth of pre-determined gender roles.
When we introspect the society from feminist lens, the concept of gender is again raised in question when we understand that a male born who prefers to be identified as a woman is called a transwoman and not merely a woman. Similarly, a female born who prefers to be identified as a man will be called a transman and not a man. The entire conception leaves us in visualising an imaginary line, the two ends of them being man and woman and anything in between is not normal and conforming to the societal standards. Instead of going deeper into gender being a social construct, let us now divert to the point that why do we have such distinction in the society? Why should a mere social construct, say gender, even be a question of relevance? The question however remains unanswered because firstly, there is no nexus of differentiation and secondly, the society has their own pre-assigned gender roles which are nothing but a gift of patriarchy and entails male dominance over the so called inferior and weaker group, i.e. woman.
Before moving further into the theme, let us go back to the line the discussion started from. A deeper understanding will take us towards gender roles. There are various sources of the origin of gender roles. These pre-assigned gender roles leave no room for any individual desires, be it sexual or otherwise, and compel an individual to stick to them and not appreciate any diversion from the society’s pre determined understanding and expectations. This patriarchy driven society is determining what colour and type of dresses should a child wear, what toys should the child play with, what career choices should be taken or avoided, what behaviour should the child adopt, and many more decisions, just as the child is born. Such a society fails to understand that these choices are individual and choices and not something which should be imposed determining on the organs the child is born with. All this further leads to gender gaps in work pay, job security, recognition, family responsibility, etc.
Now, coming back to who a woman is, we realise that these gender roles have an assigned understanding of the conception of a perfect woman and the society governs such perception. An ideal female is portrayed as warm, emotional, kind, polite, sensitive, friendly and gentle. These gender expectations and stereotypes have often given rise to gender discrimination. The society has constructed these attributes as the benchmark and discourages any behaviour that goes against such ideas. We have seen this type of concept of considering women as nurturers and providers of emotional care taking even by the court in the very popular case of Air India V. Nergesh Meerza, where it very confidently justifies the marriage retirement provision of the air hostess. The court observed:
“Apart from improving the health of the employee, it helps a good in the promotion and boosting up of our family planning programme. Secondly, if a woman marries near about the age of 20 to 23 years, she becomes fully mature and there is every chance of such a marriage proving a success, all things being equal”
The responsibility of a woman as brought out by the court in its justification is mainly protection of the institution of marriage by balancing family and home. Taking care of the family and children are a woman's lookout and men can continue their careers. ‘Family planning’ is a woman's responsibility merely and men are not opposed to any such restrictions or the same standards that relate to ‘family planning’ as clearly brought out by the Supreme Court. As a girl starts growing she is normally exposed to a set of rules that defined appropriate feminine behaviour in the society and this gives rise to gender norms and gender discrimination. The court uses these stereotypes and justifies the holding of the marriage prohibition. Hence, we see that how patriarchy has spread its ambit and how these concepts of gender discrimination are hindering the development of the nation.
Now, coming to another concept, that is heteronormativity, or, as it should be referred to, ‘toxic-normativity’, the purpose of taking up this concept is to understand how not only does it act as a hindrance to feminist movement towards rights of queer community but also, how this strengthens the norm of gender roles, by acting both as one of the sources as well as effect of the same. Heteronormativity can be understood as the belief that heterosexuality, predicated on the gender binary, is the default, preferred, or normal mode of sexual orientation.[i] It assumes and determines that sexual and marital relations are most fitting and preferred between people of opposite sex. A heteronormative view, therefore, involves an alignment of biological sex, sexuality, gender identity, and gender roles. Now, understanding the role of a woman from a heteronormative point of view, we understand how, in a toxic society, woman’s sexuality is considered as mere a possession of her family, and after her marriage, the only relevance of her sexuality is for procurement of children. This is again, very much relevant in the laws of our nation, that has historically served to protect male interests, and given way to male dominance not only over women’s sexuality but also stigmatizing any deviance from heterosexuality and any family founded by those not conforming to the male-female binary is disturbing to this, ‘hetero patriarchy’.A list of penal provisions can be interpreted as enclosing female sexuality within marriage and forbidding all sexual expressions that go against patriarchy.
Before the decriminalization of Section 497 of the Indian Penal Code, 1860, an interpretation of the adultery laws showed that women, or rather, wives are mere property of their husbands, and are subordinate possession of men. An understanding of the section will derive us to the conclusion that a woman, a commodity of a man, can enter into an adulterous relationship on her husband’s consent. The Supreme Court in 2018 scrapped down the provision of adultery.
The rape laws of our country, where there are several identified problems, two of which we shall discuss. Firstly, the conception of how the gender of a person determines if they can be a victim or a perpetrator, and secondly, the non-recognition of marital rape. These gender biased laws not only treats woman as mere victims instead of empowering them but also, creates unfair presumption then men can only be perpetrators and hence cannot be a victim to a sexual offence. All these penal provisions just suggest that these sexual offences were created more to protect male ownership over their wives, than to protect the bodily integrity of women.
Another important question which needs to be answered is whether a woman gives up her right to consent with the seventh vow of her marriage? However, the answer lies in the affirmative. Marital rape is again nothing but a gift of patriarchy which imposes sexual norms and regulates the sexual rights of woman, taking away all forms of sexual autonomy.
Another important and persistent concept that needs to be acknowledged is the concept of intersectionality, i.e., overlapping of systems of discrimination. When gender inequality is coupled with other forms of inequalities based on caste, class, race or ethnicity, forms of disability, age, location, marital status gender identity and sexual orientation of the individual, education level, health status, etc, we find that the individual faces more hardships and these often lead to specific forms of discrimination and disadvantage for them.
The Vision Ahead.
There are various ways a woman can be empowered. Here, I am going to enlist a few measures which people are not yet aware off.
A strong step towards woman empowerment can be awareness about raising a child gender neutral. This will not only contribute in diminishing gender roles and leading to woman empowerment but instead, will lead to the empowerment of the entire society and nation as a whole.
Another noticeable step can be using gender neutral pronouns. The use of ‘he’ and ‘she’ as pronouns gives way to gender discrimination. ‘He’ and ‘She’ are two extreme binaries that don’t leave room for other gender identities and give an impression that man and woman are the two default genders which people identify with. However, in reality these are not the only two gender people identify with. This concept of gender binary can also be analysed as a source for gender specific pronouns, or, this can also be a cause of why our society has gender specific pronouns. With growing awareness and acceptance of the other genders, it is time our society is in dire need of gender friendly pronouns, that is, usage of gender inclusive language. Adopting a gender-neutral language will not only make us more inclusive but also make us one step closer in avoiding discrimination on the basis of gender. For example, while referring to a job interview form, if a person writes Miss/Mr./Mrs. before their name, there are high changes that they might be discriminated and judged on the basis of their gender, whereas, this might not be the case if language doesn’t require these.
Many languages around the world have sensed the need of neutrality and Swedish thus became the first language to have a gender neutral pronoun added by an authoritative institution. The Netherlands allows gender neutral pronouns in its passports. India’s first gender-neutral graduation certificate was granted by NALSAR University of Law, Hyderabad to one of its students, issuing a certificate with the honorific Mx., instead of the commonly used Mr. and Ms.
Law reforms against sexual violence should be acknowledged. The objective behind the provisions should be well analysed and focus on individual rights, rather than making women properties of their husbands. In this regard, I would like to conclude with the following line-