It's stereotypical!

In a 2019 contribution to the Annual Review of Political Science, scholars Allison P  Harris and Maya Sen delve into the intricate realm of bias and judging. They assert that the law seldom offers a definitive, objectively correct answer, resulting in a predictable variance in judges’ decisions due to their individual backgrounds and ideologies. Judges’ backgrounds, encompassing factors such as race, gender, ethnicity, and religion, profoundly influence their decision-making processes. Over numerous decades, studies have consistently shown that judges with diverse characteristics — people of colour, women, religious minorities, parents, and older judges — approach certain cases with distinct perspectives compared to those who have not lived through similar experiences.

Many positives

In the context of recognising the substantial impact of personal backgrounds on judicial decision-making, the Supreme Court of India’s much-lauded ‘Handbook on Combating Gender Stereotypes’ holds relevance. Published in August 2023, this handbook aims to guide judges and the legal community in identifying, comprehending, and addressing stereotypes pertaining to women. The publication includes a comprehensive glossary of terms that perpetuate gender biases, along with recommendations for alternative words and phrases suitable for drafting legal pleadings, orders, and judgements.

Making a distinction

The handbook effectively highlights and offers accessible alternatives for incorrect stereotypical language that has been historically used to define women and their behaviours. For instance, terms like “prostitute” are replaced with “sex worker” “ravished” with “sexually harassed/assaulted or raped,” and “spinster” with “unmarried woman”. Offensive terms like “slut” and “whore” and “seductress” are entirely removed and replaced with a neutral reference to women.

The handbook also provides a clear explanation of the distinction between “sex” and “gender” fundamental concepts that, despite being well-understood by experts in the field of gender studies and social sciences, continue to challenge and confuse most others.

Furthermore, the handbook addresses stereotypes linked to women’s behaviours, with the intention of guiding judges in rendering fair and equitable decisions. While this document marks a commendable initial stride in addressing gender stereotypes, it falls short in acknowledging a significant aspect that feminists have highlighted for decades — namely, that “doing gender” extends beyond the experiences of women and encompasses the diverse gender-conscious positions of men too. Sociologist Linn Egeberg Holmgren and Gender studies expert, Jeff Hearn, writing for the Journal of Gender Studies in 2009, underscore the historical oversight in perceiving much of men’s actions as devoid of gender implications, gender equality considerations, or contributions to altering gender dynamics. They contend that fostering further discourse between analyses of men/masculinities and the multidimensionality of feminisms is essential, along with empirical studies delving into men’s varying feminist perspectives to enrich theoretical feminist models across diverse social contexts. In their Handbook of Studies on Men and Masculinities (2005), Michael S Kimmel, Jeff R Hearn, and Robert W Connell align with this perspective, highlighting that gender research has predominantly centered on women and has primarily been advanced by women. The impetus for the development of gender studies has primarily originated from contemporary feminism, with women at the forefront of making gender discernible in both scholarly discourse and public dialogues. Hence, delving into the dynamics of gender must also bring other genders, especially masculinities into focus and raise questions about the positionality of men in shaping and challenging prevailing gender norms and inequalities. A nuanced exploration of this nature is indispensable for accurately comprehending gender complexities and for devising solutions to the very issues that this handbook aims to address. Without understanding masculinity’s role in addressing gender-related challenges and fostering a more equitable society, our understanding of the full spectrum of gender issues remains incomplete.

A need for dedicated categories

Hence, the primary objective of this handbook — “combating gender stereotypes,” should ideally encompass stereotypes about all genders — male, female, transgender, and others. However, while it does acknowledge two semantic stereotypes concerning transgender individuals and cross-dressers on page 8, it lumps these stereotypes together with those related to women. This approach falls short of providing them with a distinct category, such as one for the third gender or, ideally, an LGBTQ+ category. Establishing such dedicated categories could effectively address the wide range of gender and sexual stereotypes targeted at the LGBTQ+ community, offering a more comprehensive and precise approach.

Adrienne Rich’s essay, which is now four decades old, yet remains relevant today, eloquently captured the essence of this omission. In her widely read 1980 essay, ‘Compulsory Heterosexuality and Lesbian Existence,’ she states that heterosexuality has been both forcibly and subliminally imposed on women, yet women have resisted it, often at the cost of physical torture, imprisonment, psychosurgery, social ostracism, and extreme poverty. The essay argues that this imposition confines women within prescribed roles, limiting their ability to transcend societal norms, and even ‘drains the energy’ of closeted lesbians, causing them to be ‘psychologically trapped’ in leading a double life. Rich’s insights into the effects of forced heterosexuality and the limitations it places on women’s agency and self-expression remain impactful and resonate to this day. The absence of this comprehensive yet straightforward discussion about forced heterosexism in the handbook is unfortunate. It is a point that remains pertinent for judges to acknowledge and understand, especially in the context of addressing gender stereotypes and promoting equitable judicial decision-making.

Let’s challenge ingrained biases

In practice, the handbook merely scratches the surface in challenging the stereotypical norms associated with womanhood in India. Considering the rapid progression of LGBTQ+ rights litigation in recent years, coupled with a series of progressive Supreme Court and High Court judgements recognising unprecedented rights for LGBTQ+ people — such as the call for equal legal rights for “atypical families” (in Deepika Singh vs Central Administrative Tribunal, 2022), the inclusion of sexual orientation and gender identity as protected characteristics under Articles 14, 15, 19, and 21 of the Indian Constitution (in Navtej Singh Johar vs Union of India, 2018 and National Legal Services Authority vs Union of India, 2014), and the impending verdict by the Supreme Court on the legal recognition of same-sex marriage in India (in Supriyo vs Union of India) — The Supreme Court must take a decisive stance in reshaping societal norms and challenging deeply ingrained biases via constitutionally compliant means. If same-sex marriage becomes legal, it would challenge existing stereotypes and biases in Indian society. However, it might also give rise to new stereotypes. For example, the recognition of same-sex relationships could bring attention to the issue of gay rape, in which men are victims of sexual assault by other men. Currently, both the current and proposed versions of the Indian Penal Code do not acknowledge such cases. These changes might also influence maintenance matters, which, like our rape laws, are also gendered under both the current and proposed Code of Criminal Procedure. These emerging realities should ideally encourage the courts to reassess their gender-related stereotypes and stimulate the creation of a “Handbook 2.0” An updated version is much needed, as it would provide a more comprehensive, nuanced, and diverse perspective on gender inequities and stereotypes.

(The author is a Communications Manager at Nyaaya, the Vidhi Centre for Legal Policy and can be reached at [e-mail])