Snapshots of law, gender and sexuality news from the past couple of weeks.
‘Equal Recognition’ campaign launched in Edinburgh; hope for a ‘third gender’ within the UK?
Oriana Frame, Durham University.
On the 1st of November 2014, the Equal Recognition campaign was launched in Edinburgh. The campaign, pioneered by The Scottish Transgender Alliance alongside the Equality Network, has vocalised the notion that Scotland, along with the rest of the United Kingdom, is falling behind countries such as India, Denmark, Bangladesh and Germany who have already legally recognised a ‘third’ non-binary gender.
Intersex people are born with bodies which cannot be classified as either male or female in the way that society usually does, and as such, often identify themselves as having a non-binary gender identity that is neither male nor female. It seems bizarre that in a modern society that can diagnose such a physical reality, there is no parallel of this recognition within the law. In highlighting this absence, the campaign has drawn attention to some of the social implications of the current inequality. For example, there has been acknowledgment of the resulting pressures not just on the individual, but also on parents who are forced to classify their new born as either ‘male’ or ‘female’. In the face of this decision, parents are often pushed towards pursuing ‘correctional’ genital surgeries for their child. The Scottish Transgender Alliance have argued that such surgeries can have long-standing physical and mental implications as well as exposing the child to the potential injustice of having to live by a decision made at a time when they were unable to consent to it. The discussion of such issues mirrors the debate already had in an increasing amount of countries, around the world.
The campaign focusses not simply on the rights of intersex people but also trans people’s right to self-determination. Four, clear calls have been articulated:
- ‘For the Scottish Government to engage with intersex people, to understand their concerns and recognise their right to bodily autonomy and social equality’.
- ‘Remove the offensive psychiatric assessment requirement from legal gender recognition’
- ‘Introduce legal recognition for people who do not identify as men or women’
- ‘Reduce the age at which people can change their birth certificates.’
It is argued that a legal acceptance of a third gender, alongside the rest of these priorities, will relieve some of the social pressures on trans and intersex people and subsequently allow them the freedom to legally identify with the gender of their choice.
In light of what Scotland achieved in pioneering the original discussions about same-sex marriage laws within the UK, it will be interesting to see where this campaign leads. There is hope that it will not only find success in Scotland, but also act as a potential catalyst for wider reform.
China – Silencing Women’s Rights Activists
Noor Ghaly, University of Manchester
The United Nations (UN) Committee for the Elimination of Discrimination Against Women , as part of the findings of its 59th session has accused the People’s Republic of China of attempting to “silence activists from reporting to a United Nations women’s rights panel, and preventing others from heading to Geneva to testify”.
The Committee is a treaty based UN committee, one of ten international human rights treaty bodies, which was created to oversee the implementation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). CEDAW was adopted in 1979 with the specific purpose of promoting women’s rights and to regularly review the compliance of member nations. Membership to the committee skyrocketed to over a hundred nation-states within a decade of its creation.
Article 3 of CEDAW best describes the obligations imposed by the Convention; member nations are urged to take “all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men”.
In their 59th session, the Committee reviewed the progress of Brunei Darussalam, Belgium, China, Hong Kong, Ghana, Guinea, Poland, Solomon Islands, Macau and the Republic of Venezuela. The body of 23 all-women independent experts, including Chinese representative Ms. Xiaoqiao Zou, concluded in a 15 page document that China was guilty of an array of violations of its obligations under the Convention. Significantly, criticisms extend to concerns that the government imposed travel restrictions on Chinese women hoping to give evidence in Switzerland about Chinese human rights violations, and further claims that state agents had been attempting to silence the women involved.
The Committee has urged China to “take steps to ensure that in the future no travel restrictions are placed on individuals/human rights defenders,” and also to fight other practices like forced abortions and “infanticide of girls”. Other violations include allegations of violence and abuse against women who stand for election as independent candidates.
Modern Slavery Bill
Catherine Ravenscroft, Durham University
The Modern Slavery Bill has this week been put through its third reading in the Houses of Parliament, bringing it ever closer to fruition. However, it has not been without its criticism particularly concerning the inclusion, and subsequent rejection, of the ‘Swedish Model’ of prostitution regulation. This amendment would have made the buying of sex illegal across the UK where, since October, it is only currently illegal in Northern Ireland.
The rejection, while unexpected by its proposer Fiona Mactaggart, may be welcomed by those who campaign for greater support for Britain’s sex workers. In Northern Ireland, the criminalisation encountered criticism from inside and outside of the Assembly. Justice Minister David Frost argued that the change would drive the sex industry underground and put sex workers at greater risk. This, as International Prostitutes Collective argues, is because sex workers already feel shunned by police and further criminalisation of their trade would only add to a growing feeling that they are not taken seriously when reporting abuse.
This is where the proposed amendment has continuing importance. Although now rejected, it nevertheless highlights a deeper criticism of the Modern Slavery Bill, which is its failure to give adequate support to the victims of the types of activity it seeks to criminalise. The fact that the Bill is centred on law enforcement, and not the victim has been described by Parosha Chandran, a human rights barrister and UN expert on trafficking, as a “fatal flaw”. It is not hard to see why. Prosecutions will not be bought by those who feel they are not adequately understood and cared for by the system. Thus, until it proposes substantial victim protection, the Bill will not reach the full extent of its potential.
“this is what feminism looks like” Sweatshop Allegations
Ellen Jepson, Durham University
The Fawcett Society, the UK’s leading charity for women’s rights and equality, has recently redesigned their iconic “this is what feminism looks like” t-shirt in collaboration with Elle and produced by Whistles. The t-shirt has been endorsed by various celebrities and politicians including Ed Miliband and Nick Clegg.
Yet, allegations made at the beginning of this month from The Daily Mail claim that the Fawcett Society merchandise was produced in a Mauritius sweatshop. The Daily Mail reported that the commissioned factory, owned by Compagnie Mauricienne de Textile (CMT), pay their female factory workers 62p an hour to produce the £45 shirts. This works out as a wage which is a quarter of the countries average and below the minimum poverty income level set by the Indian Ocean country’s National Empowerment Federation. Furthermore, The Daily Mail condemned the living conditions of the female workers who it contends sleep sixteen to one room.
The Fawcett Society were quick to respond to the allegations and director, Eva Neitzert, released a statement saying that Whistles had assured the Society that the garments would be produced ethically and in the UK. When the Society discovered that the shirts had in fact been made in Mauritius, Whistles guaranteed them that there were no ethical or social doubts around the production. The Society promised to investigate the claims and stated that should concrete evidence confirm the allegations then the range would be withdrawn and part of the profits donated to an ethical trading campaign.
Days later, Neitzert released a further statement refuting The Daily Mail’s claims. An audit into CMT, carried out in October 2014, by an independent not-for-profit organisation did not expose any ethical concerns. In fact, there was evidence that the workers were paid above the official minimum wage, the standard working week was 45 hours and workers were paid for overtime, there was opportunity for workers to join a union and employees were offered training and development. The Society is continuing investigations by working with an international union body to guarantee the authenticity of the evidence.
A Spanner in the works of US marriage equality?
Nikita Beresford-Jurowscy, Newcastle University
In Volume 31 of Inherently Brief, Jesse Bachir reported on the US Supreme Court’s decision not to review the rulings of several lower federal courts – all of which had found that same-sex marriage bans were unconstitutional. This should have sent a clear signal to the remaining state and federal circuit courts, many of which are currently hearing similar challenges, that the law is moving in the direction of marriage equality.
The trend toward marriage equality across the United States was halted with De Boer v Snyder, a decision of the Sixth Circuit court of appeals which, in a 2:1 majority judgment, overturned lower court decisions in favour of same-sex marriage in four states: Kentucky, Michigan, Ohio and Tennessee. This circuit split may be positive in the long run: the Supreme Court will almost certainly be engaged and be required to give an authoritative ruling to resolve the diverging precedents, which will promote more certain (and hopefully more equal) laws nationwide.
More troubling is the reasoning used by the majority in De Boer. Judge Sutton treats the issue as one of states’ rights, and sidesteps the minority issues by appealing to the virtues of democracy – his implication being that judges are acting illegitimately in overturning same-sex marriage bans. In a powerful dissent, Judge Martha Craig Daughtrey rejects this philosophical approach for failing to adequately address the legal question raised by the equal protection clause of the Fourteenth Amendment. A particularly critical passage reads: “If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”
It is hoped that the US Supreme Court will hear an appeal from this case soon, and take the same bold approach as Judge Daughtrey in ensuring equal protection for all same-sex couples, and end the patchwork of protection currently in place.
UK Parliament votes to ban gender-selective abortion
Sarah Thin, Durham University
On 4 November, the House of Commons voted 181:1 in favour of the Abortion (Sex-Selection) Bill 2014-15, which is expected to have its second reading in January 2015. The Bill, proposed by Fiona Bruce MP (Chair of the All Party Parliamentary Pro-Life Group) and supported by a cross-party group of 11 female MPs, aims to clarify the law relating to gender-selective abortion in the UK.
Such measures are considered necessary to combat worrying numbers of women in minority ethnic communities in the UK, particularly SE Asian, being pressured into aborting female foetuses for cultural reasons. The government has claimed that the practice is illegal under current law, although the British Medical Association has said that it may be justified on grounds of mental health of the mother. The Bill proposes, inter alia, to make it illegal for a doctor to perform an abortion for reason of gender alone.
The huge majority of people would agree that a woman being pressured by her community to abort her female baby is wrong. It is an invasion of her bodily integrity; it is the manifestation of the belief that females are worth less than their male counterparts. It is, however, highly questionable whether this law is the way forward.
For starters, it is unclear if it could ever be effectively enforced. Secondly, we should be very wary of forcing the process underground. While this gender-bias exists, there will always be demand for sex-selective abortions. Across the water in Northern Ireland we hear horrific stories of attempted backstreet abortions, pills bought off the internet, women throwing themselves down stairs, drinking toxic substance – this is not the way to protect vulnerable women.
Some see the new law as an underhand way to keep abortion-restriction legislation on the agenda; an ‘anti-choice bill from an anti-choice MP’. It does seem that this is ultimately an issue of choice: do we, as a society, have the right to remove from a woman the choice whether or not to have an abortion because we think she might do it for reasons with which we disagree? While it is true that no decision backed by community and family pressure is entirely free, removing the power to choose altogether is no solution to this problem.
The only real solution must be cultural and societal change. This has been noted in South Korea and India, among others. As Sarah Ditum writes, ‘if you believe strongly that girls have as much right to be born as boys, then you should also believe that women have the right to decide what happens within the bounds of their own bodies’. Defending women’s right to choose must be key in bringing about the kind of change we want to see.
Equal Pay Day – Women’s Pay Inequality Persists in the UK
Andrea Campos-Vigoroux, University of Manchester
The Equal Pay Act 1970 was enacted following the Dagenham Strikes and heavy lobbying from female workers who sought to receive the same wages as their male counterparts for the same work. However, despite equal pay legislation introduced no less than forty-four years ago, the 4th November 2014 – Equal Pay Day – marked the day of the year where women in full-time employment effectively begin to work for free in relation to men. Currently, women in full-time employment are, on average, earning £5,200 less than men per year, with this number increasing for the first time in five years in 2013.
So why do women continue to earn so much less than their male counterparts and why has the gap widened?
One of the main contributing factors is the “motherhood penalty”. A recent study published by University of Oxford showed that even though the contribution of men to household labour has increased over the past 50 years, women continue to carry out two-thirds of unpaid work in the home. These responsibilities, along with an out-dated labour market, which provides little flexibility in working hours, mean that women are more likely to undertake part-time employment after having children. While part-time employment allows for more working flexibility, such roles offer limited scope for career progression and offer less access to training than full-time jobs. Furthermore, half of women who undertake part-time employment after having a child move into low-skilled jobs, causing a large number of women to earn far less than their market value.
In addition to this, out-dated, entrenched gender norms continue to exist in the job market, with an ONS 2013 survey showing that women make up 82 per cent of those working in ‘caring, leisure and other service industries’, which tend to pay less. Conversely, men continue to dominate higher paid jobs, including the engineering and technology industries. Such imbalances can be targeted if schools took greater efforts to encourage girls to study STEM subjects at university and pursue jobs in such fields. However, studies have shown that teachers continue to reinforce gender stereotypes when advising students on subject choices. Until these issues are addressed, girls will continue to be inadvertently deterred from pursuing careers in higher paying industries and such occupational segregation will continue to be entrenched.
Moreover, women are not only underrepresented in higher-paying industries, they are also underrepresented in senior and managerial roles. Currently, women only make up 25 per cent of Chief Executives and Senior Officials in the UK. While the “motherhood penalty” has a role to play in this, men in positions of power exhibiting an unconscious bias – which leads women to be overlooked when they are recruiting and promoting – can also explain this gender gap.
Unless extra measures are taken to tackle this, we are condemning future generations of women to financial discrimination by virtue of their gender. As we can see, the Equal Pay Act 1970 has only created a crack in the glass ceiling; it’s time it was smashed.