Author: Reyhan Ramazanova
June 27, 2023
We stereotype when we think that people have or should have specific characteristics and roles in accordance with the particular social group that they are members of. For example, if we think that women are and should be caregivers regardless of an individual woman’s desires and preferences, it is a gender stereotype and also a harmful one. It is harmful because it does not consider what an individual woman wants and prefers. Also, it can lead to the denial of the human rights of women. As indicated by the Committee on the Economic, Social and Cultural Rights, based on stereotypical assumptions, women may be refused a job because they could become pregnant, or they can be assigned to the low-level jobs on the basis that they would not spend as much time on their work as men do since they are or should be caregivers. Stereotypical assumption that women should be responsible for child-caring also makes it difficult for women to grow their skills and obtain education to compete in the labor market because they are assumed to spend their time on childcare as the main caregiver. Yet men are not encouraged to take a role in this responsibility because they are stereotypically assumed to be a main breadwinner. As a result, we observe a lower participation of women in the labor market than that of men, and the main reason is child-rearing (see the brief of the International Labour Organization). While gender stereotypes are one of the root causes of gender inequalities, they may not seem so at first, and therefore may not be considered in examination of equality and non-discrimination clauses.
To what extent are gender stereotypes taken into account by judicial bodies in examination of equality and non-discrimination clauses?
One of the potential answers is, it depends on the approach to equality and non-discrimination. We observe formal and substantive equality approaches to the right to equality and non-discrimination in judicial opinions.
From a women's rights perspective, formal equality requires treating men and women the same; it means that women have the same rights as men. This approach prohibits different treatment based on protected characteristics which have been listed on almost each non-discrimination clause. For example, Article 26 of the International Covenant on Civil and Political Rights prohibits any discrimination based on, for instance, race, sex, colour, religion and other status. A similar clause is also enshrined in Article 14 of the European Convention on Human Rights. When examining whether the right to equality and non-discrimination is violated this approach requires a comparator to analyze whether women have been treated differently, and this comparator is mainly male. A problem arises when there is not a male comparator with a similar situation as a female. As evidenced, in the case of Hendrika S. Vos v The Netherlands, Vos claimed that the replacement of her disability pension with the lower widow’s pension after the death of her ex-husband was a breach of the non-discrimination clause of the International Covenant on Civil and Political Rights. The Human Rights Committee found no violation of the non-discrimination clause because the relevant rule in the Netherlands was generally in favor of women, due to the fact that in most cases the benefits payable to married women under the General Widows and Orphans Act were more than that of under the General Disablement Benefits Act. Vos’s situation was unusual in comparison with others' because she was working and had a disability. Also, because the widower's pension was not available for men it was not possible to compare Vos’s situation with men to find a discrimination against Vos.
Another example is the case of Dr. Annette Plaunt v. Exeter University where the Employment Tribunal of England sought to answer whether Dr. Annette Plaunt was treated worse than her comparator when analyzing a sex discrimination case. Dr. Plaunt, who has an Eastern European Jewish heritage, was working at Exeter University as a physicist. According to the university, she was terminated from her job because she allegedly was shouting at students and colleagues, however, she claimed she has a loud voice. Dr. Plaunt countered that a man with a loud voice would not have been treated the same as her. The Tribunal found no sex discrimination stating that “there is no reason to think that a man against whom such complaints were made, who had the same way of speaking and interacting with others would have been treated differently.” A substantive equality approach would require the Tribunal to analyze whether the stereotypes against women (such as women should not be aggressive, and therefore, their voice should not be loud) and the intersectionality of Dr. Plaunt (being a woman and having Jewish heritage) affected the treatment of her rather than looking for a comparator man to see whether he would have been treated differently in the same situation.
Another problem of formal approach to the right to equality and non-discrimination is that looking for a comparator can lead to such thinking that, if there is not a comparator to compare a woman’s situation with a man’s, it means there is no discrimination against a woman. Looking at whether a woman is subjected to different treatment at the moment in comparison with others, and mainly with a male comparator, prevents those using a formal approach to not consider the background situation that the woman lives in as well as the existing inequalities they experience, including those that are the results of harmful gender stereotypes. What is important to consider is the discriminative impact of the situation on a woman, rather than comparing a woman’s situation with others’. As Rebecca J. Cook and Simone Cusack say, “How she was treated matters more than whether she was treated differently than a man.”
Substantive equality is reached when women do not experience discrimination in reality. Substantive equality considers that neutral law which does not discriminate between men and women can have discriminative impacts on women because of already existing inequalities experienced by women. From a substantive equality perspective, it is not essential to compare a woman’s situation with a male comparator to find discriminatory treatment experienced by a woman based on a gender stereotype. It means that looking at the real experience of women is required to see whether they already experience any inequality and whether this leads to another discrimination in their life even if the law treats them neutrally. For example, when a woman’s job application is rejected because of a lack of relevant skills, rather than saying she does not have relevant skills, it would be better to question whether a woman had an equitable access to education to get relevant skills (e.g., maybe she did not pursue education, because of the stereotype that she should be a mother and caregiver, therefore, she does not need an education), or whether a woman had an opportunity to get a shared help in child-rearing to be able to spend some of her time to obtain the skills and knowledge that are required to get a job (e.g., maybe she did not have help because of the stereotypical assumption that childcare is her duty and it cannot or should not be shared with a man who should be the breadwinner). Without considering existing gender stereotypes and their negative impacts on women, the treatment will be seen as neutral, while it will create another inequality. This is why women's participation in the labor market is still lower than that of men despite employment laws prohibiting different treatment based on sex when hiring employees. This illustrates that neutral law which requires formal equality based on sex is not enough to achieve substantive equality and address existing inequalities experienced by women, including a gender gap in the labor market.
One of the negative results that harmful stereotypes can cause is gender-based violence, heavily experienced by women, which is a violation of the right to equality and non-discrimination. “Not criminalizing marital rape, perceiving that women are the sexual property of men” and “failing to investigate, prosecute and sentence sexual violence against women, believing that victims of sexual violence agreed to sexual acts, as they were not dressing and behaving modestly”, are examples of gender-based discrimination pertaining to harmful stereotypes. Therefore, when addressing the issue it is important to tackle the harmful stereotypes that are underlying causes of gender-based violence and gender-based discrimination. In the Cotton Field case, for example, the Inter-American Court of Human Rights examined gender-based violence in the context of gender-based stereotypes, which have been stated as reasons and results of gender-based violence. According to the decision, “the State failed to comply with its obligation to investigate – and thereby guarantee – the rights to life, personal integrity and personal liberty established in Articles 4(1), 5(1), 5(2), and 7(1) of the American Convention,” with regard to Claudia Ivette González, Laura Berenice Ramos Monárrez and Esmeralda Herrera Monreal; three murdered women whose bodies were found in the cotton field. It was stated in the decision that harmful stereotypes about women were one of the root causes of the failure of the State to protect the rights of women. When the mothers of those women reported the disappearance of their daughters to the appropriate authorities, the authorities did not comply with their obligations to investigate violations and protect the women’s rights properly, stating and basing on the stereotypical assumptions, such things as, “she is surely with her boyfriend, because girls were very flighty and threw themselves at men” and “that, if anything happened to her, it was because she was looking for it, because a good girl, a good woman, stays at home.” Here, a harmful stereotype is that a woman should be strict, should not be flighty, should not go out with a boyfriend and should stay at home. As the officials were also raised in the same society where those stereotypes exist, they followed the same stereotypes and justified their inactions based on them rather than fulfilling their legal duties to protect the human rights of all. The officials most likely would not act in the same way if a man, not woman, disappeared. Due to the existing harmful stereotype, it is not normal for a woman to be out with a boyfriend and women are considered flighty. This case shows how stereotypes affect the rule and policy that the officials and decision-makers follow, and lead to increased gender-based discrimination and violence. The situation would be different if officials acted in accordance with the rule of law, not based on stereotypes, which requires them to protect the lives of all people and to investigate violations of human rights without discrimination. Further, this case emphasizes the importance of creating awareness about the relations between stereotypes and gender-based violence in society and eliminating harmful stereotypes against women which was also expressed in the order part of the Court’s decision. In its order, the Court required the State to organize education and training programs for public officials on human rights and gender “to overcome stereotyping about the role of women in society.”
Conclusion
Harmful stereotypes can lead to gender-based discrimination and cause gender-based violence. Some of them preach subordination of women, namely that a woman should be a caregiver and should not be aggressive or a decision-maker. This leads to the lower participation of women in society including labor market and leadership positions. In addition, this affects the economic status of women in a negative way, which can lead to poverty and dependency on others. It can also lead to others making decisions about a woman without her freely given and informed consent, which can further cause gender-based violence such as forced marriage, rape and forced medical treatment.
Gender-based violence also happens when women do not act in accordance with stereotypes (e.g., when they do not want to be a mother, are assertive and want to be a leader) which are dominant in society. Existing harmful stereotypes also affect the legal and investigation system, contributing to thoughts such as that women who do not act in accordance with the dominant stereotypes are not worthy to be protected under the law (as in the case of Cotton Field). If the law enforcement agencies do not prevent the violation of law surrounding harmful stereotypes, this can lead to the increased number of gender-based violence cases against women.
The Cotton Field case illustrates how harmful gender stereotypes are one of the root causes for gender-based violence. Fighting against harmful gender stereotypes can promote gender equality and prevent gender-based violence against women. From this perspective, investigating the effects of stereotypes with regard to discrimination by courts and judges can also be useful in order to create awareness in law enforcement agencies and society, as well as to eliminate existing gender inequalities against women.
Note: Related topics have also been discussed in author Reyhan Ramazanova’s other works completed during her master’s studies at the University of Essex in England. For more information, please contact the author.
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