Problems with the conception of “gender” and “gender-equality”

“Gender” is a relatively new term, the origins of which lie in some psychological and sociological theories. It has its special place in the second and third wave of feminist concepts. It should be emphasised that this term carries a strong ideological charge. Despite numerous doubts and objections against the idea of sex understood as gender in literature, this concept was included in the official current of discussions in international institutions. It is particularly strongly present in documents of non-binding nature, and this is despite the lack of widespread support of the countries for this concept. Lack of clear definition and application limitations of this category, as well as progressive substitution of the classic concept of "sex” with “gender”, raise significant doubts.

In the literature it is indicated that „gender” is a socially constructed definition of women and men. It is the social design of a biological sex, determined by the conception of tasks, functions and roles attributed to women and men in society and in public and private life. It is also commonly emphasised that the idea of “gender” includes unequal power relations. For the proponents of this concept, the existing gender roles and differences between women and men result from oppression, the victims of which women have become throughout history. As we can read in a report of a group of experts of the Council of Europe on gender mainstreaming, „ Gender is not only a socially constructed definition of women and men, it is a socially constructed definition of the relationship between the sexes. This construction contains an unequal power relationship with male domination and female subordination in most spheres of life”[1].

The idea of gender has, therefore, its origins in constructionism and Marxism. First of all, it defines sex as a social construct, ignoring its biological dimension. Secondly, it uses dialectical concepts, particularly visible in the doctrine of Marxism. The difference lies in the shift of the centre of gravity from class struggle to the “eternal” struggle between sexes, which can only be ended by elimination of sex differences. It should be emphasised that the concept of gender constitutes a natural consequence of the individualistic doctrine, according to which a person can be truly free only when liberated from all the imposed social norms. Pursuant to the feminist doctrine, one of these social norms is the idea of sex and roles related to it, as well as unequal relations in terms of reproduction are to be one of main reasons of structural discrimination against women, which has taken place for centuries.

The construct of gender was used on a larger scale for the first time during the World Conference on Women in 1985 in Nairobi. It occurred several times in the document concluding the Conference (Forward Looking Strategies)[2], although it was not yet used interchangeably with the concept of sex. The text repeatedly mentions the structural nature of discrimination against women, as well as claims that physiological differences between women and men should not justify the existence of different female and male roles. Already at the beginning, in the introduction regarding the historical background of women's issues, the authors indicate that inequalities between sexes are of structural nature, and, therefore, deep social and economic changes are necessary to fight them[3]. Term gender-based discrimination itself appears in section 6. Defining equality, the authors of the document indicate that “for women in particular, equality means the realization of rights that have been denied as a result of cultural, institutional, behaviourial and attitudinal discrimination[4][5]. Section 21 of the document, referring very clearly to feminist theories, indicates that change in current unequal conditions and structures still defining woman as “playing supporting role” is necessary. Thus, the authors directly point out that femininity is a social construct, and they situate the problem of discrimination against women not in the sphere of combating pathology, but they associate it with the necessity of remodelling society as a whole.  Femininity as such does not exist, we can only talk about the definition of woman created by society, and this definition itself is of oppressive nature.

 However, the most crucial for promotion of the concept of gender and feminist ideology was World Conference on Women held in 1995 in Beijing. The debate around the final document concluding the conference - Platform for Action[6] - was full of controversy - and it was the definition of gender that raised numerous doubts among the deliberating states. In this regard, at the insistence of a large group of UN Member States, the President of the Conference clearly pointed out that “word gender was used in usual, generally accepted sense, in which it occurs in UN documents”, having in mind non-binding declarations enclosed in the early 1990s to the final documents of the UN conferences. In the above-mentioned position it was emphasised as well that “it was not intended to give the term a new meaning that would differ from the commonly accepted one. In the perspective of these numerous controversies, the definition of gender was supposed to be specified in art. 7 section 3 of the Rome Statute of the International Criminal Court, where it was determined that term gender refers to male and female sex taking into account social context. Attempts are currently made to abolish this definition and open the concept of gender to a much broader spectrum of designations (i.a. as a result of deliberations on a new treaty regarding prosecution of crimes against humanity prepared by the International Law Commission, as well as through the definition of gender included in the Istanbul Convention).

Significant light on the tendencies regarding the interpretation of the gender concept is shed by General Recommendations of CEDAW no. 28 of 2010. In this recommendation, the committee monitoring the implementation of the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter: CEDAW) of 1979, without the relevant international law authorisation, rules (section 5 of General Recommendation CEDAW no. 28/2010) that the term sex present in the CEDAW should also be given the meaning of gender. At the same time, definition of gender included in this recommendation one more time manifests its nature as semantic category strongly marked by politics and ideology. In the perspective of this definition, the term gender refers to socially constructed identities, attributes and roles for women and men and society’s social and cultural meaning for these biological differences resulting in hierarchical relationships between women and men and in the distribution of power and rights favouring men and disadvantaging women.^[7].

Finally, the direction of the interpretation of the concept of gender, and which at the same time indicated its ideological nature, is determined by the Convention of the Council of Europe on preventing and combating violence against women and domestic violence of 2011 (hereinafter: CAHVIO Convention). Already in the Preamble to the Convention it is indicated that “violence against women is a manifestation of historically unequal power relations between women and men, which have led to domination over, and discrimination against, women by men and to the prevention of the full advancement of women”. At the same time the Preamble proclaims “the structural nature of violence against women as gender-based violence”, admitting that it “is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men”. Therefore, the Convention assumes that the cultural way of expressing femininity in social life (the existence of gender differences between women and men) expresses the idea of women's inferiority and constitutes the cause of violence. For this reason, the Convention includes an obligation for States-Parties (Art. 12 section 1 of the Convention) to change the existing social and cultural patterns of behaviour of women and men. It is, thus, a commitment to carry out by the state social engineering (measure necessary to promote changes in social and cultural patterns of behaviours of women and men in order to eradicate prejudices, customs, traditions and other practices) under the dictation of ideological assumptions expressed by the Convention. CAHVIO Convention perceives violence against women as a phenomenon conditioned by the category of gender or genre, reflected in principle in the Polish translation of the Convention as “płeć społeczno-kulturowa” [socio-cultural sex]. Therefore, violence against women was specified in Art. 3 section a of the Convention as gender-based violence, the category that in Art. 3 section d was defined as “violence that is directed against a woman because she is a woman or that affects women disproportionately”. Pursuant to the idea of gender-based violence, being a woman (and more precisely being “feminine”, i.e. in the perspective of the definition in Art. 3 section c, undertaking socially constructed roles of actions, behaviours or attributes that a given society deems appropriate for women) is to be a factor generating violence.

In the opinion of Ordo Iuris Institute, using the term "gender” as specified in the Istanbul Convention and in the meaning postulated by the recommendations of i.a. CEDAW should not take place.

Firstly, this concept does not find designation in the real world. Because social gender roles do not exist in isolation from biological sex, what would be suggested by the idea of gender.  Modern scientific achievements, especially genetic ones, are the ones in favour of the biological source of human sexuality[8]. Therefore, the development of science makes us not only stick to the current definition of sex as a characteristic of a human being since birth, but event extend it as determined from the moment of conception itself. Any disorders related with sexual complementarity disorders, from a scientific and medical point of view, taking into account well-being of people affected by them, should not be the subject of social affirmation, which may contribute to the aggravation of the disorder, and ultimately to greater suffering of people affected by them[9].

Secondly, this concept indicates that social and cultural roles of man and woman are only the result of culture, and, therefore, they can be changed together with (as practice shows) a top-down, cultural revolution forced by state bodies. Confronted with the reality, this assumption crushes. Because social roles of women and men do not differ in cultures all over the world, they are homogeneous regardless of geographical location, religion, ethnicity or language[10]. The very fact of the occurrence of differences in manner of dressing, make-up, sound of names etc. between the same sexes in different cultures is obvious, widely known and described first by travellers, and then by specialised cultural anthropologists. Society and culture attribute to sexes certain specified models of behaviour; this phenomenon, however, is not a top-down construct - it is spontaneous, bottom-up, and based on biological sources of human sexuality.

Thirdly, the concept of “gender” is so unknown to the Polish culture that Polish language lacks its equivalent and English form or descriptive equivalent “płeć społeczno-kulturowa” (socio-cultural sex) is used in Poland.

                To sum up, it should be stated that using term “gender” reducing human sexuality only to cultural categories, in the perspective of tradition and new scientific achievements raises serious doubts. The use of this term in non-scientific categories is strongly ideological, it has the nature of postulative change in social roles, which may result in the weakening of family, and together with the weakening of this basic social entity - in the weakening of the entire society. The term that should be used in Polish and international law is “sex”.

                Considering the above, it should be stated that also the construct “gender equality” is incorrect, and it does not apply either in Polish Constitution or in any other Polish legislative act.

Pursuant to the general constitutional principle, in accordance with Art. 32 section 1 and 2 of the Constitution of the Republic of Poland of 2 April 1997, all persons shall be equal before the law and no one shall be discriminated against in political, social or economic life for any reason whatsoever. Moreover, however, the Constitution of the Republic of Poland details the above-mentioned principle by including the principle of equality between women and men: “Men and women shall have equal rights in family, political, social and economic life in the Republic of Poland” (Art. 33 section 1). The above means that “both groups should be treated the same when they are in identical or similar situations, and they should be treated differently when they are in a different situations”[11]. It is worth noting that the main objective criterion used by the Polish Constitutional Tribunal in assessing whether in a given legal situation a woman and a man are “similar entities”, is the criterion of biological differences[12].

Legislator may exceptionally introduce different provisions for women and men; this difference, however, must be justified by constitution. As indicated in the doctrine of constitutional law, first of all these are the provisions of the Constitution ordering to provide special protection to women (mothers) (i.a. art. 68 section 3 or art. 71 section 2). In such case, however, statutory solutions expressing privileging based on the criterion of sex will be subject to the assessment in the light of the principle of proportionality. Because they are justified only if the departure from the principle of equality is necessary to provide special protection[13].

In the opinion of the Ordo Iuris Institute, the equality between men and women is not in conflict with the acceptance of biological, social and psychological diversity of women and men. Equality between women and men involves, among others, guaranteeing both sexes the same development conditions, giving them the opportunity to choose different life paths without valuing them. Whereas, the determinant of equality between women and men cannot be the fact of occupying specific positions and exercising specific professions, or assuming specific social roles to the same extent by both women and men. As it has already been mentioned, women and men can have different interests and predispositions, which may be the main reason for undertaking by them specific activities, and not discrimination of a given sex.

Authors:

Karolina Pawłowska

Magdalena Olek

Filip Furman