Gender justice must begin in courtroom

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Copy of IOL court justice scales Independent Newspapers

Judicial systems worldwide are often shot through with harmful gender stereotypes, says Navi Pillay.

It is natural for a man to respond to a nagging female partner with violence. Women’s demands for equal pay with men for equal skills are not justified, because women are likely to stop working to have children. A man who kills his wife may receive a more lenient sentence if she was unfaithful.

These are judges’ comments – not from 100 years ago, but in the past 10 years. These cases were not weighed on their merits but swayed by deeply embedded notions that limit the rights and protection of women and girls. Justice was denied to the women in these cases, just as it is denied to many others every day around the world.

Despite decades of struggle for women’s right to equality, judicial systems worldwide are often shot through with harmful gender stereotypes. This can amount to a denial of a woman’s right to justice by the very legal system that is supposed to protect fundamental human rights for everyone.

Gender stereotypes – widely held beliefs about women’s and men’s supposed characteristics and proper roles – are ubiquitous and create a deep vein of prejudice that affects the lives of women and men.

Because of deeply entrenched discrimination against women, these beliefs have disproportionate consequences for women’s enjoyment of their human rights. Apparently, benign stereotypes can be harmful.

For example, the idea that “women are more nurturing than men” reinforces the notion that women should do most domestic chores. This can also lead to violations of women’s human rights when translated into laws and practices that deprive them of educational and professional opportunities.

Discrimination in the courtroom – where we seek fair and impartial administration of the law – is particularly damaging. When a law is seriously discriminatory, the search for fairness is profoundly compromised.

Think of legislation that says women may not independently choose to travel, work outside the home, or undergo certain medical procedures without permission from male relatives.

But equally concerning, and more widespread, is when judges are influenced by harmful gender stereotypes in their interpretation of the law and handing down of decisions. We often see this in cases related to gender-based violence, the family, equal work opportunities, and women’s sexual and reproductive health.

And when judges make decisions based on harmful gender stereotypes, for example taking a woman’s sexual life into account when deciding her legal rights and protection against rape or domestic violence, this is a human rights violation.

States should also take measures to eliminate wrongful gender stereotyping in all aspects of the criminal justice system, including investigation, prosecution, questioning and protection of victims and witnesses, and sentencing.

Explicit action is required to ensure that government officials, especially those working in the justice system, do not deliver decisions based on harmful stereotypes and undermine the human rights of women and girls.

If we are serious about achieving gender equality now, well into the 21st century, we must devote more energy to dismantling prejudicial presumptions about women and men. We must stop perpetuating misguided ideas of what women should or should not be, or do, based solely on the fact of being female. Instead, we must see them for who they are – unique human beings in all their diversity. This is the demand of equality, which is the foundation of human rights law.

My office will be devoting considerable attention to providing more robust guidance in this area. It is my sincere hope that work on this critical issue will begin in the place that most symbolises justice: the courtroom.

* Navi Pillay is the UN high commissioner for human rights.

** The views expressed here are not necessarily those of Independent Newspapers.

Cape Argus


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