Sex as a protected characteristic: a barrister’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 fourth article in a series for the El Caribe news paper in the Dominican Republic.

The last line of the press release that Amnesty International sent to journalists around the world last week stated: “Dominican legislators must also urgently pass a draft law currently under consideration, which is designed to address multiple forms of discrimination.” Excited, I immediately thought: “Brilliant! The Dominican Republic will finally enshrine sex as a protected characteristic in any of the many law projects tumbling around from legislature to legislature.”

But no. The media spectacle that Amnesty International performed last week is part of a number of efforts to mobilise public opinion in favour of a law project that has been making the rounds lately but which would be diametrically opposed to the establishment of sex-based rights. The Proyecto de Ley General de Igualdad y No Discriminación, a so-called equality and no discrimination law project, is in fact a sex self-identification law project which seeks to play Russian roulette with the toxic debate of the moment: gender identity. But this is all top secret, so please don’t tell anyone…

Why are international organisations like Amnesty International meddling and pressuring us to approve a sex self-ID law project when they know full well that in this country women and girls do not have sex-based rights? What is Amnesty International playing at, inciting their followers around the world to pressure our legislature to pass a law project that has never been consulted with the population and regarding a topic that has never even been discussed publicly?  Why is the Executive back of our government (who are backing the law project) and civil society supporting this?

Come to think about it, any threesome between those separate entities must raise a myriad of questions, especially since the public is being kept in the dark about what’s really going on. We must ask ourselves, why would any of those political actors be so determined to approve this law project, that they are willing to scheme in order to impose polysemic and experimental legal concepts in the Dominican Republic? Especially when we remember that there are legal rights (like sex-based rights), recognised in international conventions that we, as a country, have agreed to but haven’t established in any of our laws.

The concept of sex self-ID emanates from non-binding international documents, drafted by self-identified experts. Meanwhile, the Dominican Republic has been signing international treaties such as the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), which are indeed legally binding and that recognise women based on sex for decades. We’ve been ballsy enough to even ratify them!

In plain Dominican speak, we’re the ones who need to catch up. Therefore, where is the pressure from international organizations and civil society to ensure that our country guarantees women’s sex-based rights? What on earth are all these postmodernist ideas doing in Dominican law projects when in our country, women’s human rights haven’t even reached modernity?

But let’s not talk about unpleasant colonialist dynamics… Let us now focus our attention of the Proyecto de Ley que Crea el Sistema de Apoyo Integral para la Prevención, Sanción y Erradicación de la Violencia contra la Mujer (a violence against women law project), from senator Felix Bautista, which has thankfully shown due care to the concerns of Dominican women and girls.

If promulgated, the law project would legally define misogyny in Dominican Republic as “the conduct of hate, implicit or explicit, such as rejection, aversion and degradation against women.” It would define violence against women as “any action or omission, and any conduct, public or private, based on the unequal relations of power between men and women, which affects or denies women’s rights to a life free of violence, by degrading, marginalising, excluding, discriminating, hurting, harming or causing death. It encompasses the physical, sexual, emotional, psychological, economical or patrimonial suffering of women. This includes those committed by the State and its agents.”

The violence against women law project also establishes an ingenious legal definition of women’s empowerment by declaring it as “the process of social, political and economic strengthening of women, which seeks to potentialise their capabilities in a way that encourages political, social and cultural change in their life situation.”

Once we have approved the Violence Against Women Law Project, the baseball field is set for the Dominican Republic to hit an international home run and enshrine ourselves in history books as the first country in the Latin American region to recognise sex as a protected characteristic. This is a legal conceptualisation of women’s rights which has granted countries such as the UK the distinction of having one of the most advanced Equality Acts in the world. There is no reason whatsoever why women and girls in the Dominican Republic cannot have similar legal protections.

To learn more about the concept of protected characteristics, I recently interviewed British barrister Julian Norman, who specialises both in women’s rights and immigration law. The barrister is part of Woman’s Place UK, a political campaign to protect, strengthen and expand women’s rights in the United Kingdom.

Dr Norman, you are a proudly feminist barrister. Could you tell us how you became interested in women’s rights? “I’ve always been a feminist. My mother used to take me to the Silver Moon women’s bookshop as a child, and I went to an all-girls school where women’s independence was a watchword. It was a surprise to me on reaching adulthood that not everybody thought that way”, she states.

Some Equality Acts around the world do not include a set of protected characteristics, like the UK one does. What are these protected characteristics and why do they matter?

“The protected characteristics in the UK are (in alphabetical order, as in the Equality Act 2010) age, disability, gender reassignment, marriage / civil partnership, pregnancy / maternity, race, religion or belief, sex and sexual orientation.  It is against the law for a public body, service provider or employer to harass, victimise, or discriminate against someone due to one of these characteristics (although discrimination may be lawful in some circumstances if it is a proportionate means of achieving a legitimate aim)”…

You mean for example places like women’s refuges for women who’ve suffered male violence, sex segregation in sports and prisons, all-women shortlists and so forth, right? “Correct”, clarifies the lawyer.

Now, you are a barrister who specializes in equality matters. What do you think would be the difference between establishing the legal recognition of women, as a category of their own, as opposed to a legal framework which did not make that distinction?

“If women are not recognised as a legal category they have no mechanism by which to redress inequality, and this allows inequality to persist.  Measures may be taken which happen to benefit women (although as we know, globally, where these measures depend upon men’s goodwill, they happen at glacial pace) but women find it difficult if not impossible to compel such change if they are not recognised as a legal group.

One example of this is in refugee law in the UK.  The Refugee Convention recognises an individual as a refugee if they fear persecution by reason of “race, religion, nationality, political opinion or membership of a particular social group.”  Self-evidently women may fall within any of the first four groups.  However, persecution of women for being women is not expressly covered.  This changed with the House of Lords case of Shah & Islam where it was accepted that divorced women in Pakistan may constitute a “particular social group,” (“PSG”) but it continues to be a matter of some legal dispute.

In Fornah in 2005 it was accepted that women who had not (yet) undergone FGM in Sierra Leone may constitute a PSG, in in ex p. Hoxha that women who had experienced sexual violence in Albania may constitute a PSG.  The difficulty is that in each instance one has to reinvent the wheel, persuading the court that on the facts of this woman’s case, women in her circumstances, in her country, constitute a PSG, hunting a “unifying characteristic” for the circumstances without addressing the glaringly obvious fact that the unifying characteristic is her sex. If women are not recognised as a distinct category, then neither can the issues affecting them as an economic, social and political class be distinguished”, argues the barrister concluding her analysis.

In your legal opinion, what is the difference between having women’s rights based on ‘gender’ as opposed to women’s rights based on ‘sex’?

“I would use the distinction made by Baker J. in Elan-Cane [2018] EWHC 1530 (Admin); “sex is now more properly understood to refer to an individual’s physical characteristics, including chromosomal, gonadal and genital features, whereas gender is used to refer to the individual’s self-perception.

It is of course extremely important that self-perception is recognised within Article 8 (right to private and family life) and that those who are gender variant are properly – not just adequately – protected. We must be wary of falling into the fallacy of believing we can protect by sex or by gender; we can and must do both.  Those who are of the female sex need not assume a feminine gender projection in order to be afforded rights; likewise, those of the male sex who assume a feminine gender must not lose rights by doing so.

Rights based on ‘gender’ assume a shared or unifying characteristic of self-perception. One of the problems is that where “women” as a class pertains to those who self-perceive as sharing a feminine gender, it presupposes that women (whatever sex they were born) identify with a feminine gender.  Gender is understood by many female people, who reject it, to be a means of oppression. Where women are expected to dress and behave in a particular way, that way is often oppressive, and a mechanism of protection of the status quo. Women must not be expected to identify with their own oppression in order to achieve rights.

Where women as a class include both females and males, the oppression attaching to reproductive rights vanishes.  Abortion, contraception, human rights in childbirth, the motherhood pay gap, the ‘second shift,’ unpaid caring responsibilities: if these are no longer attached to women as a sex class, then they are simply issues which might affect “some” women, as unpredictably as a broken leg might affect “some” women, and therefore need no distinct protection.

Where inequality persists, and women continue disproportionately to experience male violence, women continue to need separate or single-sex services to protect their safety, privacy and dignity.  This cannot be covered by self-perception, because all three are a matter of external perception.  If a woman who has experienced serious male sexual violence encounters a person of the male sex in her changing room or rape crisis centre, her trauma response is not informed by that person’s self-perception.  We cannot abolish separation by sex in these circumstances before we abolish male violence; that would be to put the cart before the horse”, concludes the barrister.

But, if sex is a protected characteristic in the UK, then why is it that British women are having such a difficult time organising meetings to discuss their rights? Unfortunately, in the sex and gender debate, political violence against women has become thoroughly normalised.

It is unimaginable that in the Dominican Republic women would ever need to hire security, if they want to gather to discuss any law project because they have received bomb threats, considered legitimate by the police, yet this is something that has happened to Woman’s Place UK several times. How do we make sense of that? 

The human rights barrister reflects and provides us with an answer from different angles: “There is so much to answer here! The first one is that the Equality Act only preserves sex exemptions in restricted circumstances. So, although sex is a protected characteristic, which means that a person cannot be harassed, victimised or discriminated against by the state, a service provider or an employer due to their sex, to hold actual single sex meetings you have to justify it. And of course, many people think that there is no justification for single sex spaces because we live in a sexist society.

The second is that when the proposals for reform of the GRA were introduced, some of the LGBT organisations including Stonewall proposed removing those sex exemptions.  Campaigning against women’s single sex exemptions is now synonymous with progressive LGBT causes – even though those speaking out against it are often lesbians.  Politicians and those with influence often don’t want to get involved because they are afraid of upsetting either women (and being called sexist) or trans people (and being called transphobes) so they say nothing at all when women’s events are attacked.

The third is that misogyny is just so normalised.  As a society we are fairly attuned to what is unacceptable speech in terms of racism, homophobia, ableism etc, but calling women sluts, hos, bitches, commenting on our bodies, and so on, is regarded as normal. Even many women think it is normal. The law can protect sex as a characteristic, but society needs to catch up and recognise misogyny as hatred rather than banter.

The fourth, and I say this without enthusiasm, because it pits against one another groups which are both kept down by patriarchy, is that there is a fundamental tension between those who regard gender as a positive tool of self-expression for the individual, and those who regard gender as a tool of oppression to women as a class.  This is unlikely to be resolved through the law.  The cause of the first group is easily appropriated by those who seek to perpetuate the oppression of women as a class by insisting that gender is liberating”, argues the lawyer.

What would you say to people who argue that this is all a storm in a teacup? Some people would say that this issue is merely a semantical one. Wouldn’t you say that “there are more important problems” that we should focus on, such as violence against women?

“No. The two are indivisible: how do you focus on violence against women if you have no definition of women?” questions with severity the barrister. “You wouldn’t try to do it without a definition of violence. Would it be mere semantics to ignore the definition of a refugee when looking at precarious housing situations facing refugees? Or to ignore the definition of disability when looking at employment barriers to disabled people?  It cannot be sensibly done.

You cannot address sexism without addressing sex.  Female people as a class experience distinct economic and social factors which male people as a class do not, and that leads to an inequality which privileges male people.  That there are other axes of oppression does not eliminate or excuse oppression by sex”, states the women’s human rights expert.

Having reached this point, I would like to conclude this series by thanking wholeheartedly the three British women who have helped us all understand sex as protected characteristic: the activist Kiri Tunks, the academic Kathleen Stock and the barrister Julian Norman. Equally, I would like to thank the political campaign Woman’s Place UK, which has become a conglomerate of women who are experts in the sex and gender debate from a range of perspectives, and who have graciously offered their knowledge, experiences and service to any local organisations and universities in the Dominican Republic, who may be interested in deepening our understanding of such a massively important issue for the rights of women and girls in our country.

The only thing standing between the recognition of sex as an axis of oppression, and the establishment of sex as a protected characteristic in the Dominican Republic is a lack of political will, the capricious interests of international organisations and some members of local civil society. But let us be absolutely clear: Dominican women and girls will obtain our legal recognition, as political subjects on our own right, either now or in twenty years.

We either fight to gain those human rights for women now and learn from the experiences and grave mistakes of countries such as the UK, or we allow the political class to become hellbent on forcing vulnerable women to pay the price of us screwing this issue up on our own. Whichever of either alternative, I would suggest you all buckle up: the battle for women’s sex-based rights in the Dominican Republic has just begun.

This article was originally published for the Dominican newspaper El Caribe on April 3rd, 2019.  You can read the original here.

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@Julian_Norman1

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