GENDER OR SEX; THE BRAWL BETWEEN LEGAL AND SOCIAL WITH SPECIAL EMPHASIS ON SCOPE OF GENDER IN INDIAN SCENARIO BY- KASHISH KHANNA
GENDER OR
SEX; THE BRAWL BETWEEN LEGAL AND SOCIAL WITH SPECIAL EMPHASIS ON SCOPE OF
GENDER IN INDIAN SCENARIO
AUTHORED BY-
KASHISH KHANNA
I. Abstract
With the coming up of AI increasing
trends of homogenization and adoption of the western culture, the debate of
what prevails over the other; gender or sex, or what is more legitimate has
gathered global attention. Some researchers are of the opinion that masculine
and feminine roles are not biologically fixed but socially constructed, calling
them genders. Whereas, on the other hand, the orthodox opinion is that you are
either born as a male or a female and that is what you are expected to be and
act like as in an ideal society, calling it sex. Even in the Indian law,
article 15(1) and 16(2) where the two (male and female) were talked about, the
word ‘sex’ has been used. Thus, according to the legal scholars sex is more
legitimate than gender and in the opinion of the sociologists gender is the
real identity of a person. These articles are meant for the purpose of
protecting the two sexes from discrimination. Various other countries also
refrained from using the term ‘gender’ in their laws as multiple connotations
can be derived from it. It is important to understand that there are more than
two genders; male, female, non-binary, pangender, genderqueer, neutral gender
etc. This debate besides being a topic of discussion has hugely impacted gender
justice, especially in India. According to the Indian Penal Code a transgender,
if sexually abused can use all the provisions made for women. But why? They are
different genders all together. Are we as a society doing enough for them?
According to a survey about 6 in 10 countries have not gone far enough when it
comes to the question of gender justice.[1] Furthermore, gender justice doesn’t just comprise making
laws for all, but also involves factors like respect, equal pay for equal work,
identification and equal access to resources also. And this process can only
start after legal recognition. How to go about this process? Should one of
the two; gender and sex be chosen? Shall both be taken into account creating a
balanced society? What are the probable solutions to end this debate once and
forever? The answer to all these questions shall be given in the research
paper.
Keywords: homogenization, gender, sex, gender
justice, scholars, connotations, socially constructed, pangender, IPC.
II. Introduction
As already discussed, some
researchers are of the opinion that masculine and feminine roles are not
biologically fixed but socially constructed, calling them genders. Whereas, on
the other hand, the orthodox opinion is that you are either born as a male or a
female and that is what you are expected to be and act like as in an ideal
society, calling it sex.
According to Canadian Institute of
Health Research, In both people and animals, the term "sex" refers to
a collection of biological characteristics. Physiological characteristics, such
as chromosomes, gene expression, hormone levels and functions, and
reproductive/sexual anatomy are largely involved. Although sex is often
classified as either female or male, there are differences in the biological
characteristics that make up sex and how those characteristics are exhibited.
The socially created roles, actions, expressions, and identities of girls,
women, boys, men, and persons of all genders are referred to as gender. It
affects how individuals behave and interact, how they see themselves and other
people, and how power and resources are distributed in society. Gender identity
occurs on a continuum and may evolve over time; it is not limited to a binary
(girl/woman, boy/man). The roles that people and groups take on, the
expectations that are put on them, how they interact with others, and the
nuanced ways that gender is institutionalized in society all contribute to the
wide range of how people and groups interpret, feel, and express gender.[2]
Gender identity is one of the most
fundamental aspects of life which refers to a person’s intrinsic sense of being
a male or a female. Sometimes, their innate perception of themselves may not be
in conformity with their sex. Such people are transgenders.
S. 2 (k) of Transgender Persons
(Protection of Rights Act), 2019, reads- “‘transgender
person’ means a person whose gender does not match with the gender
assigned to that person at birth and includes trans-man or trans-woman
(whether or not such person has undergone Sex Reassignment Surgery or
hormone therapy or laser therapy or such other therapy), person with
intersex variations, genderqueer and person having such socio-cultural
identities as kinner, hijra, aravani and jogta.”
As per the judgement in the landmark
case, Navtej Singh Johar VS Union of India[3],
LGBT people in India are entitled to all constitutional rights, including the
liberties protected by the Indian Constitution. The judgement also made note
that the LGBTQ (lesbian, Gay, Bisexual, Transgender, Queer) community is
entitled to equal citizenship and protection under law, without discrimination.
Similarly, these rights are also reserved for the other members of the LGBTQ
Community.
III. The
LGBTQ Community: Major Reason Behind the Debate.
·
Legally
accepted: The rights of the LGBTQ community in India and in various other
countries have been recognized by various laws and judgements. Several
countries, including India, have formally recognized third sex and homosexuals
as equal citizens after a protracted campaign that included several protests
and demonstrations in various areas of the world. By referring to them as
"We the people of India," the Preamble to the Indian Constitution
recognizes all of its citizens without discrimination. It ensures political,
economic, and social fairness.
·
Socially
not yet accepted: According to a report of the Bar Council of India,
99% of the people are not ready for the change that the LGBTQ community
demands. But what prevails over the other- constitutional morality or social
morality? There are two basic reasons why social morality is important. First,
social morality has aided in the evolution of civilization. The culture of
humans has always included concern for others. Everything from politics to
nonprofit organizations have undergone upheaval. Second, by realising that others
experience similar emotions to our own, this discipline teaches us how to be
more empathic. This idea has gradually strayed from its original intent. Its
core consists on showing empathy and taking note of how others feel about one
another. But right now, this idea is being employed to terrorise minority
groups' very existence. There is no definition of "Constitutional
morality" in the Constitution. As a result, the Judges have given it
various interpretations. Indirectly, the idea has been codified in the
Constitution itself in the Preamble, Fundamental Duties, Part IV, Directive
Principles of State Policy, and Part III, Fundamental Rights (Articles 12-35,
36-51, and 51).[4]
V. The
Feminist Debate
Pseudo feminism also called fake
feminism is the negative form of feminism. It refers to behaviour or claims
that give the impression that they support feminist ideals but are not truly
motivated by a commitment to gender equality. Instead of really wanting to
advance gender equality, these actions or words could be made for personal
benefit, to look politically right, or to win social acceptance. Pseudo
feminism may be found in a wide range of settings and circumstances, including
as the workplace, the media, and political debate. The use of feminist
terminology or symbolism without genuinely supporting or promoting women's
rights is one instance of fake feminism. This idea roughly represents “women
over men”. As per Neo Feminism, women don’t have to act like men to be treated
equal to them.
WAVES OF FEMINISM:
Different waves of feminism demanded
different rights. The wave newer to the previous saw it as incomplete. These
were:
First Wave: The first wave in the late 19th century was the first
genuine political movement in the Western world, not the first manifestation of
feminist principles. Mary Wollstonecraft's groundbreaking Vindication of the
Rights of Woman was published in 1792. Around 200 ladies gathered at a chapel
in 1848. They created 12 resolutions requesting particular rights, such the
ability to vote. Early feminists also made reproductive rights a key concern.
Congress eventually ratified the 19th amendment, granting women the right to
vote, in 1920 as a result of years of feminist campaigning. Nearly 30 years had
passed since New Zealand became the first nation to grant women the right to
vote. The main objective of first-wave feminism was to make society acknowledge
that women are people, not objects. First-wave feminism's founders were
abolitionists, but their main concern was the rights of white women. For years
to come, feminism would be haunted by this omission.[5]
Second Wave: The 1960s and 1970s saw the rise of
second-wave feminism. It questioned what women's place in society ought to be
and built on first-wave feminism. Activists concentrated on the structures that
held back women, drawing inspiration from the Civil Rights movement and
anti-Vietnam War demonstrations. This required a closer examination of the
causes of women's oppression. Traditional roles for men and women in the home
were questioned. More groundwork was done for queer theory. The Equal Pay Act
of 1963, Roe v. Wade in 1973, and other Supreme Court rulings were among the
significant successes of this period. Feminism split into three main subgroups:
mainstream/liberal, radical, and cultural. The primary goals of mainstream
feminism were institutional reforms, which included eradicating gender
inequality and providing women access to areas traditionally controlled by
males. Radical feminism argued that because society is intrinsically patriarchal,
only a complete transformation can lead to liberty. It contested the notion
that males and females are essentially the same. Similar thinking was held by
cultural feminism, which asserted that women possess a "female
essence" that is unique from males.[6]
Third Wave: Going into the 1990s, women had
more authority and rights as a result of second-wave feminism's institutional
successes. The ability to consider other facets of their identity allowed them
to embrace independence and revolt. Reclaiming was the theme of the time. The
Guerilla Girls, riot girls, and Eve Ensler's The Vagina Monologues are
significant cultural touchstones. Many women were more open in how they spoke,
behaved, and dressed about their sexuality. Second-wave feminists, many of whom
had opposed conventional femininity, occasionally found this perplexing. There
were several ideas and little movements at this time, but there was only one
"rule": there weren't any rules. A woman should make her own life
decisions.[7]
IV.
Orthodoxy vs Gen Z: Another Reason Behind the Debate.
Different opinions and ideologies
exist among different generations. Several studies showed that the generation
gap is causing relationship problems between adults and youngsters. The Sex or
Gender Brawl strikes a debate between the orthodox generations and the Genz’s
too.
A book has been written on the same
issue, according to which:-
In the orthodoxy of today,
discussions on sex and gender have heated up during the previous generation.
Arguments around feminism, sexual orientation, the sacrament of marriage,
conceptions of family, adoption of children, and treatment of transgender
people have all emerged since the debate over women's ordination began. Gender
essentialism, the theory that male and female are ontologically fixed and
incommensurate categories with separate sets of traits and abilities for each
sex, shapes first reactions to each of these issues. Gender roles are then
defined by these categories in the household, the church, and society. The book
Gender Essentialism and Orthodoxy presents an immediate criticism of gender
essentialism as it exists in the "Paris School" of Russian Migrant
Theologians and their successors-influenced stream of the modern Orthodox
Church. The Book Gender Essentialism and Orthodoxy present an immediate
criticism of gender essentialism as it exists in the "Paris School"
of Russian Migrant Theologians and their successors-influenced stream of the
modern Orthodox Church. It employs an interdisciplinary method to engage
patristic discussions of sex and gender, personalist theological anthropology,
gender and queer theory, and contemporary biological understandings of human
sexual diversity. Gender Essentialism and Orthodoxy, which reject a rigid gender
binary in favour of more flexible options, unexpectedly show places of
connection while appearing to be independent discourses. In the study's
conclusion, the theological ramifications of the findings are discussed with
regard to the ordination of women to the priesthood, same-sex relationships and
sacramental conceptions of marriage, family definitions, and pastoral care for
parishioners who identify as intersex, transgender, or nonbinary.[8]
V. Indian
Scenario
Women
Since ancient times, women have played
a significant role in Indian culture and society. However, there has long been
discussion and worry about the status of women in India. India's initiatives to empower women have
made numerous great strides in recent years. In order to improve the health,
education, and economic possibilities for women, the government has put in
place a number of programmes and initiatives. Women are now making up a larger
proportion of the workforce and are holding prominent roles in a variety of
industries, including politics, business, and entertainment.[9]
Rights of the women are protected by various case laws and statutes in India.
Very recently, The Women Reservation Bill has received “Presidential
Assent.” It has now become a law. It aims to provide 1/3rd
reservation of seats for females or women candidates in the Lok Sabha. In
India, despite of continuous efforts in the field of Safety, women are
threatened by various acts via feticides, domestic violence, trafficking,
honour killings, etc.
Men
Readers must be wondering the use of
the term “men” in the list of endangered genders. How is that possible? Is that
true enough that to in a patriarchal society like India? Yes, it is. The misuse
of the rights given to women against men as led to this scenario. Fake dowry
and domestic violence cases have led mine in this situation.
LGBTQ Community
The LGBTQIA+ community in India
suffers from gender and identity-based persecution, and finding safe places to
live is a painful battle for its members. Because of their identities,
landlords and brokers publicly refuse to rent them out spaces, rooms, or flats,
alleging potential "disturbance" in their neighbourhoods. There have
been a number of online projects to address difficulties with identity-based
discrimination. For instance, Nirat Bhatnagar launched the online platform
Belongg in 2019 shortly after the general elections in reaction to the shifting
socio-political landscape. Along with concentrating on giving disadvantaged
populations with education, employment opportunities, and healthcare, Belongg
also manages a housing initiative that matches renters who have experienced
prejudice with home owners who are prepared to publicly give space. In a
similar vein, Mumbai-based Spanish instructor Sachin Jain started the internet
network known as Gay Housing Assistance Resource (GHAR). When Jain launched an
email group in 1998 in an effort to host the online community, the concept for
GHAR was born. Later, in 2001, the group relocated to Yahoo Groups, and in 2012
it took on its current format as a Facebook group. Currently, GHAR has 19,000
Facebook users. In the network, landlords who are ready to rent out their
properties to members of disadvantaged groups connect with renters who might
otherwise face unjust treatment.
Even though these programmes have
been actively helping the LGBTQIA+ community, they have very narrow scopes. For
instance, out of at least 30 members of the LGBT community from various places
that Outlook talked with, only five were aware of Belongg, and just one was
aware of GHAR. Members outside of this information chain continue to struggle,
as programmes like Belong and GHAR can only serve those who are aware of their
existence. Dr. Dhiren Borisa, Assistant Professor at OP Jindal Global
University, whose doctorate research focuses on Queer Cartographies of Desires
in Delhi, tells Outlook that there are other difficulties in addition to the
issue of being outside of this information chain. According to Dr. Borisa,
"Queer people who are members of economically disadvantaged groups in
society frequently lack access to smart phones and the internet, making it
difficult for them to learn about existing campaigns and initiatives." As
a result, finding a place to live that is discrimination-free becomes difficult
for community members, especially for those who are openly LGBT or come from
socially disadvantaged groups. However, difficulties don't stop there; locating
areas for leisurely pursuits brings with it a new set of challenges.[10]
VI.
ANALYSIS
In my opinion, to the orthodox,
emergence of binary and non binary genders and their empowerment is a new
concept. Any society or community takes time to adapt to a change, not being a
critic of the orthodox opinion, I would like to shed light on the fact that all
citizens regardless of their gender are entitled to their basic rights of
identifying or associating themselves with a particular gender. As mentioned
above the scenario of the female gender has drastically improved, but we should
not forget that it also took centuries to reach where it stands today. Thus
both leftists and rightists should hold their horses and be patient and
welcoming about the new society of LGBTQ’s, though with reasonable
restrictions.
VII.
Conclusion
Diversity in any situation spreads enlightenment,
freshness and food for thought. In a liberal society it is expected that
diversity is tolerated. To ensure justice to all the citizens all citizens
should be subject to same laws, which implies that there is a need for gender
neutral laws or separate statutes governing separate genders. No two genders
should be combined together, as all genders are different. The ideology that
division of humans only exist on the basis of their sexual identity should be
given another thought. It should be insured that all citizens regardless of
their gender are given equal representation in the government so that they can
make their opinions heard by the public. UCC and gender-neutral laws ae a
possible way out for these. Also the word gender should be used in place of sex
so expand the usage of the term. This will lead to gender equality and it will
enhance the feeling of oneness living in a democratic country.
[1] John Gramlich, Things we learned
about gender issues, Pew Research Centre,
https;//www.pewresearch.org/short-reads/2017/12/28/10-things-we-learned-about-gender-issues-in-the-u-s-in-2017/
Last Accessed on 19th August, 2023-10:23 AM.
[2]Gender and Sex, CIHR, https://cihr-irsc.gc.ca/e/48642.html,
Last Visited On 20th September, 2023-9:00 AM.
[3] Navtej Singh Johar and Others VS
Union of India, [2018] 4MLJ 9 (CRL) 306.
[4]Social Morality VS Constitutional
Morality, Manupatra, https://articles.manupatra.com/article-details/Social-Morality-vs-Constitutional-Morality-with-special-reference-to-Navtej-Singh-Johar-V-Union-of-India.,
Last Visited On 22nd September, 2023- 11:00 AM.
[5] Types of Feminism, The Four Waves,
Human Rights Careers, https://www.humanrightscareers.com/issues/types-of-feminism-the-four-waves/,
Last Visited on 20th September, 2023- 10:00 AM.
[6] Supra Note 5.
[8] Gender Orthodoxy, Mit Press Book
Store, https://mitpressbookstore.mit.edu/book/9781531501525, Last Visited On 23rd
September, 2023-10:00 AM.
[9] Status of Women, Times of India, https://timesofindia.indiatimes.com/readersblog/lawpedia/status-of-women-in-india-51422/,
Last Visited On 23rd September, 2023- 10:30 AM.
[10] Are Cities Safe for LGBTQ
Communities, Outlook India, https://www.outlookindia.com/national/are-cities-safe-for-lgbtqia-community-in-india-news-213478,
Last Visited On 24th September, 2023-10:00 AM.