Gender Stereotyping: A Judicial Approach
Gender- stereotype in simple words refers to the generalized view or the preconceptions of the role which should be taken by the Men and women. This ridiculous concept has been evolved through ages, placing men and Women as separate categories and assigning them different characteristics which were imposed by the masculine and feminine systems. However, the optimistic approach taken by the judiciary in various countries, are interpreted more pragmatically. The judicial system of different countries, like any other aspect, has been adopting the concepts among them and thus making a precedent that is abided later by each citizen of that country.
Gender Stereotypes can be of the group assumptions or the inference from an Individual, or both. Women are incapable of making rational decisions, Unmarried women should not need access to contraception, women are more capable caregivers than men are some sorts of group Assumptions. Inference from the individual arises in the circumstances where it is assumed that A woman should not be trusted to make responsible decisions about her health but should be overseen by her husband, doctor or another authority figure, An unmarried woman seeking access to contraception is promiscuous, Custodial rights should be awarded preferentially to women, etc.
Evaluating Judicial Stance on Gender Stereotyping
In the case of India, the Principles of the gender stereotyping have been taken from the American Jurisprudence, while deciding the case Anuj Garg and Ors .v. Hotel Association of India and Ors.
It was mentioned by the Supreme Court that sex-based classifications could not be saved under Article 15(1) if their only justification was to invoke stereotypes about women’s sexual or social roles in the community. This philosophical approach is adopted by the Supreme Court from the American Jurisprudence.
Gender stereotyping is quite normal in every society, but it becomes detrimental when there is a violation of Individual and fundamental freedom along with Human Rights. This is where the judicial stereotyping comes into the play. to the practice of judges ascribing to an individual specific attribute, characteristics, or roles by reason only of her or his membership in a particular social group (e.g. women). It is used, also, to refer to the practice of judges perpetuating harmful stereotypes by not challenging stereotyping, for example by lower courts or parties to legal proceedings.
The courts and the human rights bodies have observed that the adolescent has been stereotyped that they are immature and irresponsible and cannot make responsible and informed decisions and therefore must be protected from engaging in sexual activity. In this context, the judicial bodies have taken the decisions that the adolescent as the individual can make their own decisions and condemned the parental consent or notification requirements.
Among the colossus of Gender stereotyping prevailing all over the country, another important concern is regarding Abortion. sadly, in many countries, abortion law has been enveloped based on social stigma about abortion. Many religions, as well as the culture, considers abortion as the sin, so initially, the law regarding adoption was introduced favouring it. The gender stereotyping element regarding this was the "Women going for Abortion is a sinner". but as time passes, the thinking nature of the people, as well as the judiciary, has also changed. Many had considered that the denial of the right to abortion is also the denial of her rights to freedom from cruel, human and degrading treatment, privacy and non-discrimination on grounds of socio-economic status ( Mellet.v. Ireland). so eventually, Laws criminalizing abortion in all or many circumstances also fuel other harmful gender stereotypes, associating any woman who seeks or has received abortion services, or is suspected of having obtained an abortion, with criminal activity and stigmatizing them as “bad girls”(Espinoza González .v. Peru).
Another Concern which rises here is the gender stereotypes which is arisen against the transgender category. The people generalize them as abnormal and advises them that they need correction or a gender change.. This can be said to be sort of harmful gender stereotypes, who view this behaviour as deviant, and in need of “normalization” because it contravenes heteronormative gender binaries and norms of procreation. This can be categorized as a sort of interference by individual stereotypes, where it is inferred that they are against the so-called " natural order" of nature, and are subsequently forced to undergo some hormonal treatments or gender-affirming surgeries that result in sterilization, to get their gender legally recognized. Indian judiciary has recently condemned this kind of gender stereotypes, through partially decriminalizing Section 377 of the Indian Penal code, which criminalized the acts which are " against the order of nature. Already by this time, various other Courts and international human rights bodies and experts have condemned these requirements and recognized that they violate the human rights of transgender people.
The world's approach to gender stereotyping could be transformed mainly through Judicial Impact. Although the society plays a crucial role in changing the concept, various precedents would be a determining factor to the changing ideologies of society. We cannot put a full stop to Gender-stereotyping, but can certainly make a change- A crucial change.
ABOUT THE AUTHOR
Swathi. Ashok. Nair is currently pursuing Law at the School of Legal Studies, CUSAT, Kerala.
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