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By Kathambi Kinoti
Gender stereotypes disadvantage women in many ways. A book by Rebecca J. Cook and Simone Cusack examines these stereotypes from a legal perspective and argues for a transnational legal approach to dismantling them.
Over the years, women have strived for and achieved the recognition and fulfillment of their human rights to equality. Rights to vote and run for office, own and inherit property and confer citizenship on their children – among others - have more often than not been the result of hard-fought battles by individual women and women’s movements. State institutions have been less proactive.
Rebecca J. Cook and Simone Cusack argue that national laws and policies need to do more to dismantle gender stereotypes. The premise of their book Gender Stereotyping: Transnational legal perspectives, published in 2010, is that government organs must take a more analytical and systematic approach to dismantling gender stereotypes. They write that the book “is intended to provide perspectives into how wrongful stereotypes might be effectively eliminated through the transnational legal process in order to develop the meaning and application of transformative equality.”
The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) requires States Parties to eliminate gender stereotypes. Cook and Cusack advocate for greater use of CEDAW as a tool, and for the Committee formed under CEDAW to strengthen its approach to monitoring states’ compliance with their obligations to address gender stereotyping.
Exploring the Effects of Stereotyping
Cook and Cusack use the term “stereotype” to mean “a generalized view or preconception of attributes or characteristics possessed by, or the roles that are or should be performed by, members of a particular group (e.g., women, lesbians, adolescents).” Stereotypes frequently –and persistently- acquire legal status. Laws, judgements and presidential decrees that uphold gender stereotypes have the effect of stamping authority on them. The effect is that women who do not conform to the stereotypes face discrimination and violation of their legal rights. .
One persistent stereotype about women is that they are or should be caregivers. In many cases laws and policies prescribe motherhood, care giving and nurturing roles to women, even for seemingly benevolent reasons.
The Constitution of Ireland “recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved” and provides that “the State shall…endeavour to ensure that mothers are not obliged by economic necessity to engage in labour to the neglect of their duties in the home.”
In 1997 South Africa’s President remitted the prison sentences of women convicted of non-violent offences, who had children under the age of twelve. A sole caregiver father who had been convicted of a non-violent offence, and had a child who was under the age of twelve, sought to have the pardon declared unconstitutional on the grounds of sex discrimination. The President asserted that the decision to grant the pardon was based on the best interests of children and the majority decision of the Constitutional Court agreed that the decree was not discriminatory.
Often, sex stereotypes require women to be “chaste and feminine.” Social, cultural and religious norms prescribe “modesty” for women in dress, conversation and other social relations. The authors cite the example of a female employee in a prominent U.S. firm who was passed over for promotion to partner because she did not dress stereotypically “feminine,” or wear makeup, and sometimes used profanity in her language – as many men do. She successfully sued her employer for discrimination.
Stereotypes about modesty, femininity and women’s sexual roles (including their unreliability as complainants) pervade police and societal attitudes, laws and court decisions about rape. Honour killings are common to the customary law of several communities. A girl or woman may be regarded to “disgrace” herself and her family by going outside prescribed norms, particularly as regards female/male relations and thereby be subject to murder in the name of honour killings.
In several Muslim jurisdictions the testimony of a female complainant or witness needs to be corroborated by the testimony of a man. Such practises reinforce stereotypes that women are fickle, unreliable, unintelligent or capricious and make it more difficult for them to access justice.
The recent SlutWalk demonstrations across North America were organized in response to a Canadian police officer’s advice to women to avoid dressing “provocatively” as a measure to avoid rape. In Kenya, to counter the possibility that women maliciously or capriciously accuse men of rape, an otherwise progressive Sexual Offences Act, 2006 provided that if a person alleging a sexual offence is found to have wrongfully accused another person of rape, the complainant is liable to a sentence equal to that of the alleged had he or she been convicted. Although the language in the law is gender neutral, records of the parliamentary debate before the law was passed reflect an assumption that “women often lie about rape.” These assumptions practically put survivors of sexual violence on trial and place a disproportionate burden on them to prove their case.
Gender stereotypes often intersect with racial, ethnic, religious or other stereotypes. In a case from the Netherlands, a female employee of Turkish origin lodged a successful complaint to the Committee on the Elimination of Racial Discrimination against her employer for termination of her employment. She had lost her job on the basis of stereotypical assumptions about foreign women workers’ “frequent absenteeism” from work.
A transnational legal approach would encourage the translation of international human rights treaties such as CEDAW into domestic laws and foster the development of comparative legal analysis.
Laws and policies need to acknowledge that society sanctions women who do not conform to stereotypical roles, and take measures to protect them. Cook and Cusack recommend that governments, courts and other authorities take more time and care to identify stereotypes. A case presented to the Inter-American Commission on Human Rights examined the rights violations of the 1963 Civil Code of the Republic of Guatemala. The law gave married men the “power and responsibility to financially sustain the marital home, publicly represent the marital union and administer marital property.” It conferred upon married women “the right and obligation to care for children and the marital home” and to “take paid work conditional on discharging their roles as mothers and homemakers, as well as on the consent of their husbands.” The Commission identified the stereotypes contained in the law and declared it invalid, making it “impermissible to rely on gender stereotypes to define spousal roles and responsibilities within marriage.”
The authors recommend that states undertake assessments of what measures are appropriate to dismantle and eliminate stereotypes. These measures could include training judicial, administrative and parliamentary officials on stereotypes and their effects on those that are disadvantaged by them; evaluating laws and policies that reinforce stereotypes and proactively confronting and overturning social norms that promote gender stereotyping.
CEDAW provides a useful framework for dismantling gender stereotypes, but most states do not make use of it for this purpose. Cook and Cusack recommend the adoption of the framework: “respect, protect and fulfill” to get rid of stereotypes. State organs must refrain from acts or omissions that preserve or perpetuate stereotypes such as motherhood being a primary role for women. They must protect women against stereotypes that lead to detrimental practices. They must also fulfill women’s rights by taking measures to abolish gender stereotyping that prescribes, for example, that women cannot administer property and therefore should not inherit it.
Authorities are rarely proactive in identifying gender stereotypes and prescribing measures to address them. The book is a useful tool for women’s rights advocates working within and outside government. Women outside government have been posing these challenges for decades; a revolution will occur when governments take their obligations under CEDAW more seriously and work to systemically dismantle gender stereotypes.