Dr ramona biholar deinstitutionalising gender stereotypes by Jambar

DEINSTITUTIONALISING GENDER STEREOTYPES â&#x20AC;&#x201C; Breaking The Glass Ceiling

Dr. Ramona Biholar

Deinstitutionalising gender stereotypes – breaking the glass ceiling JAMBAR PAPER, NOVEMBER 20, 2016

1. Price Waterhouse Case Price Waterhouse v. Hopkins Case US Supreme Court / Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) 1982, Ann Hopkins, senior manager and key employee recognized for professional accomplishments was denied benefits (passed over for partnership) for failure to adhere to norms of femininity One partner informed: A.H. should walk, talk and dress more femininely “wear make-up, have her hair styled, and wear jewelry”

2. DEFINE the concept- breaking the glass ceiling 3. What are stereotypes- what is stereotyping? – benign stereotyping & malign stereotyping 4. How do they operate - Institutionalizing stereotyping > condoning discrimination: go back to Price Waterhouse and more cases (even from other areas, to show the impact on society [talk about he authoritative message of the law, judicial decisions], especially of judicial stereotyping) 5. How can stereotypes be challenged? OR deinstitutionalised a) Gender stereotyping = discrimination – the gender equality agenda focused on stereotyping (de jure; de facto; transformative) > (T&T Trafficking training; Simone Cusack) > introduce the discussion on breaking the glass ceiling by talking about quotas and the debates around the concept (Jamaica, Guyana, and Caribbean) b) State Obligations to address harmful stereotyping

CEDAW Art. 7 – political and public life Art. 8 - representation Art 11 – employment Art. 4 – temporary special measures

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Deinstitutionalising gender stereotypes – an international human rights law perspective – Dr. Ramona Biholar Faculty of Law, the University of the West Indies JAMBAR PAPER, NOVEMBER 20, 2016

1. INTRODUCTION : THE ANN HOPKINS CASE 1982, Ann Hopkins, senior manager and key employee at the accounting firm Price Waterhouse, recognized by colleagues for professional accomplishments, was denied promotion to partnership. The reason was displaying “unfeminine” attributes in the workplace. One partner informed that Hopkins “should walk, talk and dress more femininely ‘wear make-up, have her hair styled, and wear jewelry’”.1 She was also referred to by some partners as “macho” and in need of “a course at charm school”. In other words, Ann Hopkins was not proposed for partnership for failure to adhere to norms of femininity. She was reprimanded for being insufficiently feminine (as she did not wear makeup, she did not have her hair styled, she did not wear jewelry) and for being too masculine (displaying macho behavior and using profanity). Ann Hopkins sued. She alleged unlawful discrimination based on sex. The US Supreme Court held that Price Waterhouse’s decision not to promote Hopkins was based on stereotyping violating Title VII of the Civil Rights Act of 1964.2 Justice Brennan explained “[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”3 What this explanation points to is that it is unlawful for an employer to deny promotion (or benefits for that matter) to an employee because the employee fails to meet the social norms and the resultant expectations of femininity or masculinity. Justice Brennan stressed that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”4 For the purpose of this paper, in discussing the deinstitutionalization of gender stereotypingbreaking the glass ceiling, I find particularly important to consider transformative equality. I argue that in order to deinstitutionalize gender stereotyping, we need to put all our efforts into achieving transformative equality. In order to have such a conversation, the first question that emerges is what stereotypes are and more so, what is gender stereotyping?

Cook and Cusack, p.19 Price Waterhouse v. Hopkins, 490 U.S. 228, Supreme Court (1989), at 256-258. 3 Ibid., at 250. 4 Ibid., at 251. 2

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2. GENDER STEREOTYPING Stereotyping is implicit to our lives. It arises commonly and not all ideas, which underpin it, are essentially hostile. We assume, generalize, categorize, ascribe and label on a daily basis. In an attempt to cope with the abundant and often times unexpected or unfamiliar information, situations and people inundating us on a daily basis and to make that more understandable, predictable and manageable, we tend to refer to an ingrained toolkit of generalizations, categories, ascriptions and labels. Stereotyping may be either benign, with no harsh consequences, or malign, leading to harmful consequences.5 The concepts of stereotypes and gender are indispensable to understanding how gender stereotyping operates and how it can be challenged. Stereotypes are so deeply seated in the cognitive processes of individuals, that they unconsciously construct perceptions and attitudes that operate undetected.6 They can be defined as those “rough-and-ready things”7 covering generalized beliefs of “personal traits, physical characteristics and appearances, behaviour and roles, occupations, and assumptions of sexual orientation”.8 Stereotypes script identities and create in this way prescriptive and/or normative frameworks of how members of a particular group ought to be, act, and behave irrespective of individual features, abilities, qualities and circumstances.9 Gender, as opposed to sex, denotes the social and cultural construction of different sexes. That indicates that individuals/women and men are produced and reproduced categories within a system of personal and socio-cultural relations of a certain historical, ideological, political, economic, legal and cultural context. Gender thus forms identities and dictates arrangements of power, status and access to resources between and among women and men within the particular context of countries and regions.10 Individuals are labelled, feminine and masculine identities are fixated, and functions and responsibilities on a binary framework of women and men are ascribed according to biological differences of sex. Sex roles indicate functions attached to ascriptions of femininity and masculinity. Gender stereotyping mirrors the social and cultural construction of gender identities. It reproduces and expresses the expectations of how women and men should behave and should live their lives through beliefs, attitudes, practices, customs, and relations.11 Gender stereotyping captures these consequent manifestations of identity constructions.

K. A., 2000, ‘Stereotypes and Shaping of Identity’, California Law Review, 88, (1), 41-54; also, Cook and Cusack, 2010; 6

Cook and Cusack, 2010, p. 11; Appiah, K. A., 2001, “The State and the Shaping of Identity”, the Tanner Lectures of Human Values, delivered at Clare Hall, Cambridge on April 30 and May 1, 2001, p.242; 8 Cook and Cusack, 2010, p. 20; 9 Cook and Cusack, 2010, p. 18; 10 Barriteau 1998, ‘Theorizing Gender Systems and the Project of Modernity in the Twentieth-Century Caribbean’, Feminist Review 59, 186-210, p. 191; 11 See Barriteau 1998, p. 191; Cook and Cusack, 2010, p. 13; Of particular interest for the discussion on the constructions of gender is also the work of Scott, J.W., 1986, ‘Gender: A useful category of historical analysis’, The American Historical Review, 91 (5), 1053-1075, p. 1070; 7

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To the extent that gender stereotyping puts the individual in detrimental positions, it allows a framework for exclusion and discrimination.12 By detrimental positions I mean assumptions of gender identities and roles that prevail over personal contexts, characteristics, capabilities, needs and wishes, so that they restrict the capacity of individuals to make choices, take autonomous decisions and hold control over their own identities and lives. Thus, confining individuals’ actual interests, needs and functions to encoded expectations strips them of agency and power which runs against the core human rights principles: human dignity and liberty.13 To this extent gender stereotyping is exclusionary and discriminatory. It perpetuates ideas of inferiority or superiority of sexes, reproduce asymmetric relations of power between women and men, and encourages prejudices and resultant sexist attitudes. Usually, women are the ones on the forefront of discrimination stemming from gender stereotyping. They constitute the obvious vulnerable group in the arrangements of gender. However, this gender system, as it stands now, operates in concealed ways that obscures some of its victims. It creates unobvious vulnerability easy to remain invisible. The dysfunctional gender arrangements of patriarchy render both women and men vulnerable. Acknowledging the detrimental effects that gender stereotyping and the ascription of roles have on men should not be ignored. In this paper, however, I focus on social and cultural constructions of gender that are detrimental to women and deny them full enjoyment of rights and freedoms. This choice does not disregard the negative effects that social and cultural gender constructions can have on men. International human rights law places emphasis on the discrimination perpetuated by gender stereotyping and point out that it a form of gender-based discrimination. This entails that State obligations arise: States have an obligation to modify socio-cultural patterns of behaviour at the basis of gender stereotyping and individuals have the rights to be free from discriminatory gender stereotyping. That is why I would like to focus the discussion in this paper on the unique provision in international human rights law- that is Article 5 (a) CEDAW and the concept of transformative equality.

3. DECONSTRUCTING ARTICLE 5 (A) CEDAW Pursuant to Article 5 (a), “States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;”14 K. A., 2000, ‘Stereotypes and Shaping of Identity’, California Law Review, 88, (1), 41-54; also, Cook and Cusack, 2010; See UDHR, 1948, Article 1; 14 Article 5 CEDAW comprises two complementary provisions that reflect a mirror construction of the concepts of nondiscrimination and equality. Article 5 (b) stipulates: “To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.” See CEDAW, 1979, 12

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This provision acknowledges that sexual differences can be constructed on the basis of domination-subordination structures. The formulation suggests that meanings of hierarchical nature are given to biological sex differences, which can lead to an asymmetry of power between women and men.15 The formulation in the article “stereotyped roles for men and women” refers to the social and cultural construction of gender identities within the gender relations. Stereotyped roles reveal the expectations, which operate at individual level, in societal structures and in State institutions. They are indicators of what it means to be a woman or a man; in other words, what is or should be the role and/or the behaviour for women and men in the private and in the public sphere. Women and men are ascribed in this way to specific social and cultural boundaries within the binary gender hierarchy.16 It leads to the understanding of gender roles as inherited identities, socially and culturally constructed on asymmetrical ideas “of the inferiority or the superiority of either of the sexes”, as Article 5 (a) clearly states. Consequently, they result in unequal relations of power. These specific boundaries usually demarcate a position of control for men while women are ascribed to an inherent inferior position which excludes them from public power, confines them to domestic tasks and to nurturing roles, and deprives them of control over their own sexuality and overall over their own lives.17 For example, a common division of roles asserting appropriate attributions along sex differences is that of the woman having a natural, predestined role of mother/caregiver and homemaker, whereas the man is conceived as head of the household, engaged in breadwinner tasks outside the home. He is the one in control of women’s sexuality and in charge of safeguarding and upholding this natural order, patriarchal in essence. 18 This restricts women from full participation in public life.

Article 5; In Holtmaat’s words, the two parts of Article 5 “are two sides of the same coin”. Article 5 (a) endorses the negative statement of non-discrimination. As a counterpart, Article 5 (b) endorses the positive approach to ensuring equality. Also Holtmaat, 2012, p. 142 and pp.152-152, for a discussion on Article 5 (b); The relationship between the two paragraphs of Article 5 is discussed at length also in Holtmaat and Naber, 2011, pp. 28-29; 15 See the definition of gender referred to in CEDAW GR 25, 2004, para. 7, note 2; 16 Barriteau, 1998, p. 191; 17 See UN General Assembly, 2006, ‘In-depth study on all forms of violence against women’, Report of the Secretary-General, para. 70; 18 For an in-depth discussion on patriarchy as a historical system of structures and practices grounded on the idea of superiority and inferiority of sexes, with women on the inferior position, see Bhasin, 1993; Tafari-Ama’s work on the sexual politics in Jamaica’s “bellow poverty line” communities is also of significance. See Tafari-Ama, I., 2008, Blood Bullets and Bodies. Sexual Politics Below Jamaica’s Poverty Line, Maastricht: Shaker Publishing BV;

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The verbs used in this article “[t]o modify …with the view to achieving elimination” indicate that States have an obligation under Article 5 (a) to take a transformation stance in order to eliminate gender-based discrimination, i.e.: to modify social and cultural patterns of conduct that embrace and cultivate discriminatory gender relations; and, to achieving elimination of prejudices, customary and practices based on stereotyped ideas and ascription of roles that are discriminatory to either women or men. To modify social and cultural behaviour with the view to achieve elimination of gender-based discrimination is a challenging and broad obligation for States. Originally, the drafters of the Convention intended to use the verb to educate public opinion. In the final text of the Article this was replaced with the verb to modify.19 In Holtmaat’s view, this replacement gives strength to the provision, since to modify behaviour imposes a “very compelling and difficult” obligation on States.20 To educate public opinion would give a clear and specific instruction to States from the text of the Article itself. Instead, the formulation to modify social and cultural patterns of conduct of men and women broadens the provision. It captures the dynamics within a society, namely the process of “active making of culture, society and institutions … grounded … in specific places and moment[s].”21 In this way, Article 5 (a) alludes to the constructed, fluid and thus changing nature of culture and gender, and makes the challenge of the hegemonic gender status quo more forceful and far-reaching.22 In a number of Concluding Observations, the CEDAW Committee accentuates the idea of culture as dynamic and susceptible to change when it addresses this Article. The Committee recommends to State parties “to view culture and tradition as dynamic aspects of the country’s life and social fabric and therefore as subject to change.”23 Similarly, the

Rehof, 1993, p. 81-82; Holtmaat, 2012, p. 152; This view is opposed to Rehof’s position who concludes in his analysis of the Travaux Préparatoires of CEDAW that the use of the formulation “modify social and cultural patterns of conduct of men and women” in the final text of Article 5 (a) makes the provision weaker; Rehof, 1993, P. 84; 21 Merry, 2003, p. 23; 22 The idea of culture as a dynamic and flexible structure that is subject to change is brought into discussion in Chapter 3, which focuses on the actors of social and cultural transformation. The concept of gender as a process of constructing identities and determining roles and relations between and among women and men according to social and cultural norms is introduced in Chapter 1. 23 CEDAW CO Tuvalu, 2009, para. 28; CEDAW CO Timor Leste, 2009, para. 28; CEDAW CO Cook Islands, 2007, para. 23; 20

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CEDAW Committee makes clear in its General Recommendation No. 28 that gender is a social and cultural construction that can be challenged and transformed.24

4. TRANSFORMATIVE EQUALITY The text of Article 5 (a) indicates that States parties have an international human rights obligation to modify social and cultural patterns of conduct based on discriminatory gender stereotyping. The emphasis is, thus, on the perspective that Governments as the representatives of States parties must undertake a number of measures in order to comply with their obligations under the international human rights treaties to which they are committed and thus challenge/deinstitutionalize discriminatory gender stereotyping. Essential to CEDAW are the general principles of law of non-discrimination and equality. These principles mirror each other and imply complementary rights and obligations: they afford to individuals rights to be free from discrimination and to be treated on a basis of equality between women and men. Correspondingly, they place on States the obligation to combat discrimination and guarantee equality.25 Accordingly, States parties are obliged to: 1) “ensure that there is no direct or indirect discrimination against women in … laws and that women are protected against discrimination” committed by State or non-State actors, in the public or in the private spheres; 2) to “improve the de facto position of women through concrete and effective policies and programmes;” 3) to “address prevailing gender relations and the persistence of gender-based stereotypes that affect women not only through individual acts by individuals but also in law, legal and societal structures and institutions”.26

See the introduction of this section for the definition of gender as provided by the CEDAW Committee in GR 28, 2010, para. 5; See Bayefsky, 1990, p. 5; While non-discrimination has a negative implication as in the need to eliminate any categorizations, conducts, practices which lead to distinction, exclusion or restriction; equality represents the positive side, pointing to the need to take positive steps towards such distinction, exclusion, or restriction. For a general discussion on the principles of nondiscrimination and equality, see Byrnes, 2012, pp. 51-70; Fredman, S., 2003, ‘Beyond the Dichotomy of Formal and Substantive Equality: Towards a New Definition of Equal Rights’ in Boerefijn, I. et al (ed.), Temporary Special Measures: Accelerating de facto Equality of Women under Article 4 (1) UN CEDAW Convention, Antwerp: Intersentia; Fredman, S., 2002, Discrimination Law, Oxford: Oxford University Press; Bayefsky, A.F., 1990, ‘The principle of Equality or Non-discrimination in International Law’, Human Rights Quarterly 11; 26 CEDAW GR 25, 2004, para. 7; 25

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This threefold interpretation of the non-discrimination objective in CEDAW is mirrored by a threefold interpretation of the principle of equality.27 Three types of State obligations correspond to this interpretation, as follows: 1. The obligation to ensure non-discriminatory laws and women’s protection from discrimination indicates the recognition of full equality between women and men before the law, in both public and in private sphere, by public authorities as well as by private individuals, and represents the principle of de jure or formal equality.28 The complementary obligation here is to provide women with the right to equal treatment before and in the law. 2. The obligation to improve the de facto situation of women corresponds to the principle of de facto or substantive equality.29 Given the various differences between women and men (which range from biological to socially and culturally constructed differences), the guarantee of identical treatment to women and men is not sufficient to achieve de facto equality for women. The analogous obligation is to give women an “equal start” in order to ensure equality of results - “the logical corollary of de facto or substantive equality”, in the words of the Committee in General Recommendation No. 2530. These results, according to this General Recommendation, “may be quantitative and or qualitative in nature” and includes, inter alia, women enjoying freedom from violence.31 3. The obligation to address prevailing gender relations and gender-based stereotypes calls for alteration of those patterns of human relations, laws or structures that form or cause discrimination. Accordingly, this third understanding of the principle of non-discrimination and its underlying requirements reflect the principle of transformative equality or equality as transformation.32 The principle of transformative equality embodies a change stance. Equality is achieved only when social structures and power relations that perpetuate subordination are 27

Holtmaat and Naber, 2011, p.25; Byrnes, 2012, p.53; The principle of de jure or formal equality refers to equality as an inherent trait of every human being, meaning that all human beings are alike and should be treated identically. They “are born free and equal in dignity and rights.” UDHR, 1948, Article 1; 29 If de jure equality stresses the similarities between human beings, the principle of de facto or substantive equality draws attention to the differences between individuals. The different contextual positioning of individuals, i.e. geographical, racial, ethnical, social, economic, etc. should not impede their enjoyment of full equality. 30 CEDAW GR 25, 2004, para. 8; 31 Ibid., para. 9; 32 See Fredman, 2003, p. 115; 28

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modified.33 As CEDAW General Recommendation No. 25 affirms, “The lives of women and men must be considered in a contextual way, and measures adopted towards a real transformation of opportunities, institutions and systems so that they are no longer grounded in historically determined male paradigms of power and life patterns.”34 A full realization of the goals of nondiscrimination and equality in the Convention requires a structural change. General Recommendation No. 25 states: “The position of women will not be improved as long as the underlying causes of discrimination against women, and of their inequality, are not effectively addressed.”35 Transformative equality challenges social and institutional structures and requires the removal of the causes of entrenched forms of discrimination36. This implies a processoriented endeavour that focuses on social and cultural transformation. The text and the objective of the Convention embody the idea of social and cultural transformation. CEDAW affirms in the Preamble: “a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women.”37 Transformative equality is expressed in Article 5 of the Convention. So far, I focused on the complementary, underlying obligations of States parties to CEDAW to eliminate discrimination against women and ensure equality between women and men. As aforementioned, these obligations are mirrored by rights. Such obligations are imposed on States with the complementary purpose to guarantee women’s human rights and fundamental freedoms.38 Consequently, State obligations under CEDAW to protect women from discrimination and ensure equality between women and men are paralleled by women’s rights to be free from discrimination and to be treated on an equal basis with men. According to the threefold understanding of equality, women are entitled to formal equality and thus, have a right to be treated equally with men before and in the law. Women are also entitled to substantive equality and thus, have a right to equal opportunities. Furthermore, women are entitled to

Ibid, p. 111; CEDAW GR 25, 2004, para. 10; 35 Ibid.; 36 According to Byrnes, transformative equality “might also be seen as a form of substantive equality with systemic and structural dimensions.” See Byrnes, 2012, p. 56; 37 CEDAW, 1979, Preamble, para. 14; 38 See also Byrnes, 2012, p. 53; 34

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transformative equality and thus, they have the right to be free from discrimination which stems from “prevailing gender relations and gender-based stereotypes”.39

5. THE DISCRIMINATORY NATURE OF GENDER STEREOTYPING: BOTH FORMS AND ROOT-CAUSES OF DISCRIMINATION Women’s diverse experiences of predestined inferiority lead to “their de-valuation and objectification”, destroy their self-respect and limit their aspirations. 40 To the extent that social and cultural patterns of conduct preserve patriarchal views which relegate women as inferior at the expense of their socio-economic development and personal advancement, such patterns of conduct are based on prejudice against women and feed into their inequality; they foster generalised judgment, which denies the assertion of women’s actual characteristics, potential and capabilities. For that reason, one can state that social and cultural patterns of conduct based on discriminatory sex roles and gender stereotyping strip women from agency and power to make and take independent decisions and hold control over their own lives as rational human beings. They lead to women’s marginalization and exclusion. Such conduct runs against the core value of human rights: dignity and worth of the human beings who “are endowed with reason and consciousness” and “are born free and equal in dignity and rights”.41 The United Nations Committee on Economic, Social and Cultural Rights affirmed the negative nature of such social and cultural patterns of conduct: “Gender-based assumptions and expectations generally place women at a disadvantage with respect to substantive enjoyment of rights, such as freedom to act and to be recognized as autonomous, fully capable adults, to participate fully in economic, social and political development, and to make decisions concerning their circumstances and conditions. Gender-based assumptions about economic, social and cultural roles preclude the sharing of responsibility between men and women in all spheres that is necessary to equality.”42 Practices that reinforce a gender stereotype will burden women if it ascribes and thus confines them to “culturally acceptable roles or behaviour, such as motherhood, or for example, when it 39

CEDAW GR 25, 2004, para. 7; Perceptions of women inherent, thus natural subordination “extends to their intellectual, spiritual, physical, sexual and emotional lives.” Salter, 2003, p.2; 41UDHR, 1948, Article 1 and Preamble; The Charter of the United Nations, 1945, Preamble; see also Holtmaat and Naber, 2009, p.35; 42 CESCR GC 16, 2005, para. 14; 40

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stigmatizes or punishes women for their failure to conform to such roles or behaviour”43 such as the case of Ann Hopkins discussed in the beginning of this paper.

6. STRUCTURAL DISCRIMINATION OR THE OPERATIONAL LEVELS OF GENDER STEREOTYPING The analysis of the concepts in Article 5 (a) renders explicit that gender stereotyping forms a systemic problem at the heart of the gender relations prevailing to this date, and common to all parts of the world. They can be considered as discriminatory against women and impeding their right to be free from discrimination. Moreover, they inevitably lead to sustaining structural gender inequality.44 As scholars explain, gender and gender constructions operate at three levels of society, such as the “individual consciousness, the symbolic order and the structure and organization of society.”45 Consequently, sex roles and gender stereotyping operate at the level of individual’s consciousness, manifest through behaviour and are further reflected in societal institutions and structures, in law and policy.46 From the mental level (individual consciousness) of the legislator, the policy-maker, the bureaucrat or the ordinary individual, gender understandings permeate through language/discourse, opinions (symbolic representations), attitudes, practices and actions, and surface through the institutions and structures that the individual creates, including legislation.47

A variety of means and structures, such as individuals’ behaviour, policy, legal and other societal institutions reflect, preserve and reaffirm sex roles and gender stereotyping, and restrict women’s full enjoyment of all their rights guaranteed under the Convention. 48 In its decision on

Cook and Cusack, 2010, p. 63.

Holtmaat explains structural gender discrimination as referring to “those forms of discrimination that are a consequence of the fact that the structure or organization of society is based on gender stereotypes which serve to sustain the existing unequal power relations between the sexes.” Holtmaat, 2004, p.90; 45 Holtmaat, R., 2004, p. 99; Sevenhuysen, S., 1998, Citizenship and the Ethics of Care. Feminist Considerations on Justice, Morality and Politics, London/New York: Routledge, pp. 79-82; Schaapman, 1995, M., Ongezien Onderscheid naar sekse. Een Analyse van de Verbogen Machtswerking van Sekse, Den Haag: Ministerie van Sociale Zaken en Werkgelegenheid, pp. 22 and 24; 46 See Gherardi, S., 1994, 'Gender We Think, the Gender We Do in Our Everyday Organizational Lives', Human Relations, 6, 591610; Gherardi brings to attention the relation between social structures and gender; For a discussion about the relation between law and gender see Smart, C., 1992, 'The Women in Legal Discourse', Social and Legal Studies 1, 29-44,; 47 See also UN General Assembly, 2006, ‘In-depth study on all forms of violence against women’, Report of the Secretary-General, para. 70; 48 See CEDAW GR 25, 2004, para. 7; CEDAW CO Luxembourg, 1997, para. 404;

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Communication No. 28/2010, R.K.B. v. Turkey, the Committee indicates that actors from all branches and levels of the government as well as privates actors can perpetuate gender stereotyping.49 Institutions, such as the family, may preserve traditions and ideologies of women’s inferiority that reinforce asymmetric sex roles and gender stereotyping. Moreover, “certain legal provisions might continue to promote inequality and traditional roles within the family.”50 Changing “a structural situation and a social and cultural phenomenon deeply rooted in the consciousness and customs of the population”, as the Committee found in the Ciudad Juárez inquiry, “requires a global and integrated response […] aimed at transforming existing socio-cultural patterns” and “eradicating the notion that gender violence is inevitable.”51 Such an integrated response would mean targeting all levels where gender and gender constructions operate. An infrastructure of appropriate measures needs to be embedded in a consciousness of the harm caused by discriminatory sex roles and gender stereotyping and a consciousness of the provision of the Article that addresses this harm. Therefore, the level of the individual is as useful unit of the study of social and cultural transformation, as is the structure and organization of the society.

7. DEINSTITUTIONALIZING

GENDER STEREOTYPING -

NAMING

THE HARM

EMBODIED BY GENDER STEREOTYPING

The invisibility and pervasiveness of the ascribed gender stereotyping make it difficult to grasp and consequently to deal with, i.e. challenging it and achieving its elimination. Such resilience makes it resistant to change or eradication, such as the case of the stereotyped assumptions of women as domestic, mothers and caregivers. For that reason, identifying and acknowledging the harm produced by asymmetric constructions of gender identities, and resulting gender stereotyping is essential. A close diagnosis of the ways gender stereotyping occurs is thus required in order to name the wrong behind them. Naming involves identifying and publicly exposing “an otherwise hidden harm, explaining its implications, and labelling it as a human rights

CEDAW Communication No. 28/2010, R.K.B. v. Turkey, para. 8.8; See also CEDAW Communication No. 18/2008, Karen Tayag Vertido vs. Philippines as an example of perpetuation of gender serotyping through the administration of justice, especially paras. 8.1-8.8; 50 CEDAW CO Mexico, 1998, para. 398; 51 Ibid., CEDAW, 2005, Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention, and Reply from the Government of Mexico, para. 287;

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concern, grievance, or possible human rights violation.”52 For example, the CEDAW Committee names the harm embedded in sex roles and gender stereotyping when it refers to “patriarchal attitudes and deep-rooted stereotypes concerning women’s roles and responsibilities that discriminate against women and perpetuate their subordination within the family and society”53 (emphasis added). The law and the legal system can be a powerful tool in the process of identifying and naming sex roles and gender stereotyping. It enables an authoritative transformation of the covert negative experience of stereotyping into a recognized wrong and thus determine its remedy.54It can point to and publicly acknowledge, as the US Supreme Court did in the Ann Hopkins case, the harm carried by gender stereotyping. And I repeat Justice Brenner statement: “[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”55 As Barriteau observed, “[t]he statements of public officials, the bureaucratic and social practices of institutions, and representations in popular culture, provide evidence of what is expected of, or appropriate for, the socially constituted beings, women and men.”56 The operation of gender at the symbolic level comes into play and needs to be acknowledged. As Mossink and Nederland point out, gender and gender expectations occur through explicit statements about the position of women and men. From this level ideas can be “distilled” about roles of and relations between and among women and men.57 Therefore, a court case, such as the one concerning Ann Hopkins, has the power to convey an authoritative message that deinstitutionalizes, in this case, the adversity of gender stereotyping and of the harm endorsed by the patriarchal nature of society.58

The law and the legislator/legal measures are, evidently, important tools to name and expose the harm, and ensure de jure equality. Consciousness/awareness of the social harm carried by d 52

Cook and Cusack, 2010, p.39; CEDAW CO Botswana, 2010, para. 23; see also CEDAW CO Jamaica, 2006, para.383; 54 Cook and Cusack, 2010, p. 46; 53

Ibid., at 250.

Barriteau, 1998, p. 191; 57 Mossink, M. and Nederland, T., 1993, Beeldvorming in beleid. Een analyse van vrowelijkheid en mannelijkheid in beleidsstukken van de rijksoverheid, Vrije Universiteit Amsterdam/Vuga Den Haag, pp.3-4, in Holtmaat, 2004, p. 95; 58 See Barriteau, 1998, p. 191;

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gender stereotyping is however of essence. Without such consciousness at both individual level and at the level of those with authority to name and expose the harm, naming, exposing, and addressing cannot be carried out. The fact that the individual, both as legislator/decision-making authority and as subjected to the harm perpetuated by sex roles and gender stereotyping, has a consciousness of these forms of discrimination, enables the fulfilment of States’ obligations under Article 5 (a). In the Ann Hopkins case, the author is aware of the gender stereotyping and the harm it had caused her. She names it and exposes her by suing for unlawful discrimination based on sex she names it and exposes it. In other words, there is great emphasis on what States are required to do in order to take action at the macro, societal level and challenge structural wrongs. However, this cannot be done without an individual consciousness of the structural and systemic harm and action at the individual level as well.

8. CONCLUDING REMARKS I would like to conclude with Halperin-Kaddari’s observation: “Unless something is named as an injury, it cannot lead to a dispute. Unless the injured person knows that her experience is recognized as an injury, she cannot proceed with ‘blaming’ and ‘claiming’. [Thus] [t]he first stage in the process, naming, requires information which is essential to mobilize the process of demanding rectification and amelioration.’59 Recognizing hidden social wrongs, naming and publicly acknowledging them is of great importance. This substantiates the endeavour to reshape gender norms and reconstruct societies. Individual consciousness/awareness is a crucial level where gender operates. It informs the other symbolic and societal structures and institutional levels. Thus, it can be argued here that consciousness of gender stereotyping and the discrimination it can carry with it is essential for deinstitutionalising gender stereotyping.

Halperin-Kaddari, R., 2004, Women in Israel: A State of Their Own, Philadelphia: University of Pennsylvania Press, p.7, in Cook and Cusack, 2010, p.38,;

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Quotas- why don’t they work? Equality – 3 tiered model + gender operates at 3 levels – in roder to braek the glass ceiling,

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