Gender discrimination and the law of outrage

Dr. Ruwantissa Abeyratne

SEXUAL DIFFERENCES: Simply put, gender discrimination is discrimination based on gender. This is considered a form of prejudice and is now illegal in most countries. There are cultural and historical overtones of gender discrimination against women which could be attributable to the entrenched culture of differentiation, spanning several centuries.

Socially, sexual differences have been used to justify societies in which one sex or the other has been restricted to significantly inferior and secondary roles. While there are non-physical differences between men and women, there is little agreement as to what those differences are.

The closest to understanding gender differences has been feminist theory which aims to understand the nature of inequality and focuses on gender politics, power relations and sexuality.

While generally providing a critique of social relations, much of feminist theory also focuses on analyzing gender inequality and the promotion of women's rights, interests, and issues.

Article 7 of the United Nations Charter states that all are equal before the law and are entitled without any discrimination, to equal protection of the law. Article 23 (2) of the Charter provides that everyone has a right, without discrimination, to equal pay for equal work. based on this reasoning, gender discrimination is any action that grants or denies opportunities, privileges, or rewards to a person just on the basis of their sex.

Discrimination based on gender is often based on the gender stereotypes promoted by a particular society. For instance, it is reported that in the United States media, men are often depicted as physically stronger than women, while women are depicted as being physically weaker, more emotional and more sensitive than men.

Conclusions reached by the United Nations on women's' studies reveal that women often experience a "glass ceiling" and that there are very few, if any, societies in which women enjoy the same opportunities as men.

The term 'glass ceiling' describes the process by which women are barred from promotion by means of an invisible barrier. In the United States, the Glass Ceiling Commission has stated that between 95 and 97 per cent of senior managers in the country's biggest corporations are men.

The United Nations also records that in all societies, in varying degrees, women and girls are subjected to physical, sexual and psychological abuse that cuts across income, class and culture, creating serious obstacles to their right to participate fully in society.

The UN report of the Fourth World Conference in Beijing, September 1995 concluded that violence against women is a serious factor which force women to a position of subjugation and subordination compared with men.

There is an extended dimension to gender discrimination where women are discriminated upon both on a gender and a racial basis. called intersectional discrimination, it represents a far more insidious dimension than plain gender discrimination across the globe.

Pragna Patel, in an au fait presentation to the Beijing Conference observes, "intersectional discrimination has only recently been recognised, at least in international forums as a serious obstacle to the achievement of equality for many marginalised women.

Historically, at the international and national levels, racism or racial discrimination on the one hand and gender discrimination on the other, have always proceeded in official thinking and policy along mutually exclusive lines.

However, the notion of intersectional discrimination has now been acknowledged in a series of UN conferences on women".

Ms. Patel's recommendations for the United Nations are that there is an urgent need to mainstream an intersectional analysis into the investigation of all forms of discrimination, by all the various UN constituent bodies.

The law of outrage

Torts, or "delicts" as they are called in Sri Lanka, are civil wrongs involving a breach of a duty of care owed by one person to another. At the outset of a new millennium, jurists are recognizing a new tort called "the tort of outrage" which is performed by a person on another in flagrant violation of an entrenched right.

Among torts of outrage are violation of patients rights, violation of the rights of elders in homes, tobacco injuries and gender discriminatory violations against women. One of the violations against women is the online stalking by males.

Gender harassment in the office environment is not an uncommon global phenomenon, and has pervaded through various jurisdictions around the world.

Legislation to promote gender equality is generally complex and varied, with a wide divergence between different countries. The principal legislation in the UK is found in the Equal Pay Act of 1970 (which provides for equal pay for comparable work) and the Sex Discrimination Act of 1975, which makes discrimination against women or men (including discrimination on the grounds of marital status) illegal in the working situation.

The United Nations records various instances across the world where women have transcended their traditional role and found a meaningful role in life. Of these, two examples can be cited. In Niger, Marie Ekaney, mother of five and presenter at the local community radio station, enjoys her new status as a star.

She knows her work is benefiting other women in the Saharan village of Ingall, Niger. Until she volunteered as an on-air presenter, Marie's daily routine was the same as that of any other Touareg mother. But when the station was launched, she didn't hesitate to break with tradition.

"I wanted to help develop my village," she explains. "My sister and mother-in-law look after the children while I prepare my presentation". Leela, a girl in India, loves going to school. In the classroom, she is the first one to raise her hand. She dreams of becoming a teacher.

She sometimes gives lessons to children from her neighbourhood who do not go to school. "I like to teach little kids...I teach them A, B, C, D." At school, uniforms help the girls see past surface differences. Everyone, Hindu or Muslim, rich or poor, is equal.

(The writer is Chairman, Appeals Board and Coordinator, Air Transport at the International Civil Aviation Organization)