Sex as a protected characteristic: an activist’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.

Our previous article looked at the law project on violence against women titled ‘Proyecto de Ley que crea el Sistema de Apoyo Integral para la Prevención, Sanción y Erradicación de la Violencia contra las Mujeres’. The bill recently passed its second reading in the Senate of the Dominican Republic and aims to cement into law a set of definitions which are incredibly important, both in terms of sex and in terms of the meaning of what is a woman.

“But, why do we need to legally define what a woman is?”, you may ask yourself. This question invites us all to pay closer attention to the topics that some governments are trying to hide, autocratically, within our laws. The version of the aforementioned Bill now describes a woman as “a person of the female sex”. What do you think about this definition? Let’s remember that no public policy belongs to just one particular collective, because they are all relevant to the whole population. Therefore, your opinion is indispensable. Yeah, yours.

Why does this matter? Because it is based on this set of definitions that we can begin to guarantee sex-based rights, which in turn will function as a shield to protect the rights of women and girls in the Dominican Republic. But don’t listen to me! Let’s hear from women who already have not only the definitions but whose sex-based rights are already in law. For example, British women who have an Equality Act (2010) which treats sex as a protected characteristic.

In this article we’ll hear from Kiri Tunks, and educator, activist and co-founder of the political campaign group Woman’s Place UK, which aims to protect and strengthen the rights of women in the UK.

Recognising sex as a protected characteristic means understanding women to be political subjects and as a class. But what does it mean to say that women are a class?

“In the UK ‘class’ has particular connotations that relate to the economic, political and social status of everyone. However, it is the case that when you are talking about poverty or access to political/economic structures, that women are always the hardest hit or least represented; Black and disabled women more so”, argues Tunks.

“So ‘class’ obstacles generally impact on women more than men but all women, whatever their ‘class’ also face systematic oppression because of their sex which challenging class inequality on its own doesn’t address”, she states. For example, the educator continues “male abuse and violence is experienced by women from all social classes. And the ‘class struggle’ has let women down: too often it has ignored, negated or complicated the fight for women’s rights.”

When asked what difference would it make if women’s rights were based on gender rather than sex, Tunks replies: “It is only by challenging sexism and misogyny that we can successfully challenge the constraints of gender. Tackling gender inequality masks the specific sex-based oppression that women face. It is gender that says because women give birth to children that they are naturally more caring and should therefore stay at home. That’s the danger of gender-based rights. We would end up enshrining socially oppressive constructs of gender in to law.”

This whole thing of talking about sex in public policy is a bit weird, isn’t it? Could you give us a concrete example of what it means to talk about sex rather than gender in law? Tunks explains: “It’s quite simple. Sex is a material biological fact. Gender is a social construct which limits us all. Many of the issues that women face relate to their biological and material reality. This is not to reduce women to their biology but to recognise, for example, that our society punishes the sex which gestates and births children. Every year in the UK, 54,000 women lose their jobs due to pregnancy or maternity discrimination. That is such a waste of potential. It doesn’t have to be this way. Humanity requires children for its survival, so society needs to organise itself better to ensure that women are not penalised for producing them.”

I see that the law in the United Kingdom recognises sex as an axis of oppression. Could you tell us a little bit about that, please? “The list of the ways in which women are oppressed is pretty long but to identify a few areas of concern: violence and abuse; the pay gap; pregnancy and maternity discrimination; sexual harassment in school, at work, in public; lack of agency or representation at decision making levels,” Tunks explains. “Recognising ‘sex’ as an axis of oppression signals a society that intends to do something about it; that has laid down a gauntlet of expectation; that empowers women to challenge the oppression they face.”

But the trade union leader is clear to point out that this is only the first step and there is still a long way to go. “The law as it stands is a good start but the structures are so sexist that it isn’t enough. At the moment, we can say it is illegal to discriminate against women but the law hasn’t erased this in fact. So nearly 50 years after the Equal Pay Act, women still face a pay gap and it is one that has started to grow again under the austerity politics of this government,” Tunks remarked.
At a global level, I see that many Equality Acts do not include the concept of “protected characteristics” like UK law does. What are they and why are they important? Tunks responds that the concept of “protected characteristics” signals a recognition that “society is unfair and unequal and needs to change to meet the needs and rights of everyone”. She explains: “They are an attempt to even the playing field and to give those people who are demonstrably disadvantaged the tools and the legitimacy to challenge their inequality. They also place obligations on business, employers and service providers to tackle inequality too.”

Finally, I asked Tunks, what would you say to people who argue that acknowledging women as a sex class is merely a semantical matter and that we should focus on “more important issues” issues like violence against women? The response is categorical: “Violence against women is a sex-based issue. It is tied up with a number of other sex-based constraints that make women subject to the demands and desires of men. The idea that sex-based oppression is a theoretical idea is insulting to the millions of women and girls around the world who are subjugated daily in myriad ways because of the material reality of their sex. Women are always expected to tend to the needs of others first before they tend to their own oppression. Where has it got us? A society streamed with inequality and violence. That’s not a society that is good for any of us. The liberation of women will free us all.”

I hope that this article has been as illuminating for readers as the interview was for me. In our next article, we will explore an academic’s perspective from Kathleen Stock, Professor of Philosophy at the University of Sussex.

This article was originally published for the Dominican newspaper El Caribe on February 16th, 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