GENDER

EQUALITY

RELEVANCE OF GENDER and sex IN LAW MAKING

By – Sangram Singh
HAMDARD INSTITUTE OF LEGAL STUDIES & RESEARCH (HILSR), JAMIA HAMDARD
The word ‘gender’ does not point outs any ‘particular sex’ or ‘women’. Gender is a set of
socially and culturally welcomed ideas (e.g. role, character, general behavior, social
lifestyle, etcetera) that individuals learnt from their community or society about what it
means to be male or female and concerns how these ideas affect power relations between
women & men at all stages of society, and how those power relations results in inequality
(specially in opportunities) for some. Because it’s the women who is exploited that’s why
efforts to redress the balance have more often targeted upon them. However, it was our
serious mistake to only focus on women exclusively, rather than on the social relationship
between men & women.1 The curse of gender inequality is present everywhere and requires
strong changes from both men & women for the betterment of society, and cannot be
achieved without the full involvement of ‘every individual’ (both men & women).
Therefore, to cure this problem of gender inequality and to achieve the goal of complete
gender equality certain laws and policies should be made by the state for the exploited
gender i.e. majorly women. One of the main reason which I believe that “why only women
is taken into consideration when we talk about gender inequality” is that in our past it was
only women who was majorly abused, either we take example of ‘Sati System’ in India or
we talk about pointless virginity test of Zulu’s in South Africa. As we have discussed
already that state have to make certain laws to heal this problem. Now the question arises
upto which extent these laws & policies are to be tilted in favor of women in order to
achieve the goal of gender equality without exploiting the rights of men and how this target
should be achieved? After analyzing various policy making guides of several countries and
various reports of UN I have reached this point that while making these policies & laws we
have to look over on certain important factors like equal participation, equal access and
control over society’s opportunities over state resources & natural resources of a country,
equal human rights, equal quality of life in order to attain complete gender equality. But
the proportion of inclination of these factors towards women in order to attain gender equality
must vary country to country and depend upon the comparison of historical background of the
situation of women in that particular country with reference to the present situation of women
in that country & gender proportion.

1
GENDER MAINSTREAMING GUIDELINES IN NATIONAL POLICY FORMULATION AND IMPLIMENTATION by National
Committee for the Advancement of Women in Vietnam Hanoi, 2008

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As we know that sex is biological concept while gender indicates characteristics positions &
roles of women & men in all social relationships so while making any policy, policy makers
must have to consider on these two terms in order to achieve the target of gender equality.
Talking from the scenario of gender, policy makers must have to examine the historical
background of the situation of women in that particular area with reference to the present
situation of women in that area, because the history of areas or more precisely we say
history of countries, differs from each other which also makes difference in the situation of
gender from one country to another ( by saying history I am referring to the period which
is only 100 – 150 years back ) and these proportion of inclination of policies & laws towards
women must vary country to country and gender proportion of that country should also be
taken into consideration while making the policy. The above mentioned concept can be
illustrated by the variation in percentage of women’s quota in parliaments of different
countries differs from country to country in order to attain gender equality in that country.
40 Countries, including Nepal 33%, Pakistan 17.5%, Bangladesh 13%, Sweden 50% etc2
have various percentage of women’s reservation in parliament and these variations in
percentage depends upon the above discussed concept of achieving gender equality with
reference to ‘gender’. As we see that the reservation to women in parliament of Pakistan is
greater than the reservation of women in the parliament of Bangladesh so we conclude that
condition of women of Pakistan is poorer than the condition of women in Bangladesh or
due to the difference in gender proportion in these countries. If these proportions of
inclination (in the above mentioned example the proportion of inclination is percentage of
women reservation in parliament) do not vary country to country there are chances that
the concept of gender equality might be abused. Here I do not claim that the scenario of
historical background of the situation of women in that particular country with reference
to the present situation of women in that country & gender proportion of that country are
the only factors that should be taken into consideration. But we cannot ignore these major
factors when we are tacking ‘gender’ as consideration in policy making.

Now let us examine other aspect of policy making i.e. ‘sex’. As we know that sex is biological
concept so policies should be made accordingly and in this I want to give a suggestion that the proportion of

2
Tushar A. Katira, available at: https://www.quora.com/What-countries-other-than-India-have-a-womens-
reservation-policy

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inclination towards women while taking sex as consideration in policy making should be synonymous
throughout the countries. To illustrate this thought I would like to give the reference of report
prepared by International Labour Organization (ILO) which talks about maternity leave
in different countries, like Austria gives 16 weeks maternity leave while Afghanistan gives
maternity leave of 90 days. Although the economic condition of Austria is far better than
Austria but in my opinion while taking sex as consideration for policy making we can
ignore to economic conditions of country and shift to the genuine theory of communitarian
(since sex is a biological concept by this I am not saying that women is inferior to men) in
order to attain the goal of global gender equality concept so if we talk about maternity
leave policy it should be uniform throughout the countries in the world and should be
balanced in such a way that it should not hamper the economy of a particular country (
generally low economy country).

CONCLUSION:-

 While making any policy or law state have to take both ‘gender’ & ‘sex’ in
consideration in order to attain the concept of gender equality.
 When gender is taken into consideration the proportion of inclination towards
women in order to attain gender equality must vary country to country and depend
upon the comparison of historical background of the situation of women in that
particular country with reference to the present situation of women in that country
& gender proportion.
 Whereas when sex is taken into consideration these proportion should be uniform
throughout the countries. While making policies and taking sex into consideration
we need to make policies in such a way that it would be uniform throughout the
countries without hampering the economy of a low economic state.