Sex as a protected characteristic: an academic’s perspective

Raquel Rosario Sanchez is a writer and researcher. She specialises in ending male violence against women and girls and is currently pursuing a PhD with the Centre for Gender and Violence Research at the University of Bristol.

This is her third article in a series for the El Caribe news paper in the Dominican Republic.

Where were we? Let’s continue talking about a truly transnational topic: sex and gender. From Argentina to New Zealand, up to Scotland and down to Tasmania, this is the hottest topic at the moment. Questions as seemingly basic as “what is a woman?” and “who has the power to define us?” are generating one of the most toxic battles within international politics. I reckon women are human beings, in our own right, and with this in mind, I will continue to push this case until we get biological sex to be considered a protected characteristic in the Dominican Republic.

But there is still some way to go before we get there. First, the violence against women bill known as the “Proyecto de Ley que Crea el Sistema de Apoyo Integral para la Prevención, Sanción y Erradicación de la Violencia Contra la Mujer” needs to get though the Dominican Republic’s lower house of parliament.

Our last article in this series explained that this piece of legislation sets out a number of fundamental definitions into Dominican law, including the legal definitions of ‘woman’ and ‘sex.’ Interestingly, the bill also defines ‘gender’ as “a set of social, cultural, political, sociological, legal, and economic characteristics assigned to people in a differentiated manner, according to their sex.” It also asserts that ‘sexism’ is “any discrimination against women which affects human relations and encompasses any and all aspects of daily life, both public and private, shaping feelings, concepts, aptitudes and actions.” What do you think about these definitions?

It turns out that talking about sex in the context of the law is nothing new. In fact, the Convention for the Elimination of All Forms of Discrimination Against Women, the famous CEDAW that feminists are always going on and on about, talks exclusively about “sex discrimination” and, oddly enough, the Spanish version doesn’t mention the word “gender” once.

Article 1 of CEDAW, a cornerstone of the struggle for legal and social recognition of women, establishes: “For the purposes of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

We are talking about a Convention that the Dominican Republic signed on the 17^th of July 1980 and ratified on the 2^nd of September 1982. That’s before I was even born! Which begs the question, what on earth happened between the 1980’s, when it was straightforward to talk about “sex discrimination”, and 2019, when women are essentially being forced to only speak of “gender”?

Today, merely talking about biological sex marks women out as heretics in left wing circles. Recently, the police in England investigated several women who spoke out about sex-based oppression. Two weeks ago, in Argentina, a woman named Ana was physically assaulted by a male at a gathering to plan International Women’s Day, while “her feminist sisters” fanned the flames of an unbearably toxic climate by yelling “Kick her out! Kick her out!” at this young woman, while she asked them to respect freedom of speech.

It appears that the only sex that women are allowed to talk about is the fun kind that men like, not the sex that refers to life or death issues like medical research into our bodies, which present sex-based symptoms and respond to treatment in a sex-differentiated manner. Biological sex is the new blasphemy and those of us who dare to speak about it are the same old witches of olden times.

Let the record show that I will never recant my heresy on this topic.

To be clear, my insistence on talking about sex isn’t capricious. On the contrary, it is driven by a desire to level these very pretty conventions that we sign during photo ops at fancy press conferences, with the actual rights that women and girls have in our country. Until we have these definitions written in law, there will always be a discrepancy and we will remain in a legal limbo.

Historically, we find ourselves at a time when it is dangerous for us to dither when it comes to this debate, because we risk losing so much more than what we have to gain, being swept away by misinformation, personal interests, or reckless foolishness. At a time of global uncertainty, we must guarantee that the rights of women and girls in the Dominican Republic are anchored to something tangible: our material reality. Therefore, aside from those definitions, we ought to push even further and advocate for sex to be considered a protected characteristic, which will function as a protective shield. Afterwards, we can continue to build on top of that basis.

In order to dig a bit deeper into this issue, I interviewed the academic Kathleen Stock, Professor of Philosophy at the University of Sussex, and women’s rights activist. Dr. Stock has been dismantling all this sex and gender clutter, while also advocating on behalf of Woman’s Place UK, a political campaign which seeks to protect and strengthen women’s rights in the UK.

I asked her a few questions, starting with how she first became interested in women’s human rights. She replied: “I’ve always been interested in women’s rights, being a woman, and seeing how women are treated in comparison to men, but I became active politically when I realised that women were in danger of losing sex-based rights and protections in the UK.”

Later on, I asked Professor Stock, what does it means to say that women are “a class”? She ponders my question before responding: “Though obviously the material circumstances of women differ across the globe, they share a common burden of inequality in comparison to their male peers. There are problems that all women face, as such: greater exposure to risk of sexual violence; sexism throughout society; sexual objectification; a set of damaging gendered stereotypes which holds them back.”

As a champion for human rights, what difference do you perceives there to be between the legal recognition of women as a distinct category and the possibility of a legal framework without this distinction? The philosopher explains: “Women need legal protections, as such: to minimise the risk of sexual violence; to make sure they aren’t penalised financially for child-bearing; to protect them from sexual objectification and harassment, for instance. They also need special resources to mitigate the effects of sex-based inequality (for instance, all woman political shortlists; special scholarships). None of this can happen without legal recognition of women as a distinct category.”

Right now, the bone of contention within feminism is sex. The biological one, obviously. I ask Professor Stock what she, as an academic, believes would be the difference between having women’s rights based on ‘gender’ as opposed to ‘sex’? She reasons: “If ‘gender’ just means a polite word for ‘sex’ – then the answer is ‘none’. But if ‘gender’ is understood as including male transwomen as ‘women’, and share protections and resources with females, then this exposes females to risk. This is because males are now in the spaces designed to protect females from males. It also introduces more competition for limited female resources; where males are likely to have an unfair advantage due to sexism.”

On a global level, I have noticed that many Equality Acts do not have a set of protected characteristics, like the one in the United Kingdom does. I ask Professor Stock what are these protected characteristics and why are they so important? “They are important as a recognition that society is unequal and that some groups are more likely to suffer discrimination and inequality than others”, she explains.

Sure, but I’m interested to know what alternative she could envision that could protect the rights of women and girls in law if sex weren’t considered a protected characteristic. The Philosophy Professor states quite bluntly: “none”. There is no other alternative.

But what about people who say that this is all a distraction, that we’re quibbling over semantics, and we should focus our efforts on “more pressing issues” like violence against women? What would she say to those people? “Semantics are important!” she exclaims. “If we don’t have the words and meanings to describe female human beings, we can’t recognise sex-based violence against them, or sex-based discrimination, and we can’t build in sex-based protections into law and policy to protect women and girls from these things. We can’t do research on female experience either,” she explains. “You can’t focus on violence against women unless you can protect them in law, as such; and this can only happen if you protect women as a sex class.”

Now, if the Equality Act (2010) considers sex to be a protected characteristic in the United Kingdom, why is it that women are facing so many problems and having such a hard time just meeting to discuss the topic of sex and gender? I ask Professor Stock, what do we make of the misogyny, the sexism, and the toxic nature of this debate if women’s rights are already protected in the law? “UK Equality law has unfortunately been made unclear by defining ‘gender reassignment’ as ‘changing sex’” she argues. “This is a ‘legal fiction’ and has no basis in reality – you can’t literally change sex. But because the legal terminology is unclear, people are unsure what the limits of sex-based protections are. Misogyny and sexism are still present in any case, because the law can only go so far in eliminating sexist attitudes towards females – social attitudes also have to shift.”

Alright then. This whole thing looks pretty complicated and to be honest, I dropped out of Law School halfway through, so I’m not really qualified to analyse complex legal disagreements. But you know what? How about next time we bring a lawyer to help us with a legal perspective? We will be hearing from Julian Norman, an immigration and human rights barrister, who is also a defender of the rights of women and girls. Be right back!

This article was originally published for the Dominican newspaper El Caribe on February 28th, 2019.  You can read the original here.

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Read all the interviews in the El Caribe series on sex and gender identity here