The new face of gender equality
Welcome to some innovative and refreshing action in favour of gender equality recently! A few days ago, Malaysia’s highest court, the Federal Court, passed a judgement in favour of a Hindu woman whose husband had changed his religion to Islam, without her knowledge, and whose husband then changed the religion of the children to Islam, without the mother’s consent. The court underlined that consent on the part of both parents was needed to change the religion of the children.
The case in Malaysia is significant for at least two reasons. Firstly, it was a civil court in the form of the Federal Court which confirmed that civil jurisdiction prevails over religious jurisdiction; the matter at hand was/is one to be decided by the civil court rather than the religious court. Second, the case vindicated women’s rights in family matters on the basis of gender equality. It was inspired by a gendersensitive understanding of the Federal Constitution itself as well as the fact that Malaysia (like all Asean countries) is a member of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
Recent developments in the human rights field provide further momentum to spread the issue of equality from the angle of non-discrimination and non-violence. The findings of a new UN assessment, issued recently by the secretary-general, invite stronger action to tackle the following anomalies:
About one in five women in a marriage or union reported violence committed by their partner against them;
In the sample taken, one in three women underwent early marriage before the age of 18;
In some 30 countries where female genital mutilation was taking place, about 35% of women/girls were subjected to the procedure.
The CEDAW underlines the need to overcome discrimination both in law and in fact. The Sustainable Development Goals (SDGs) 2015-2030 strengthen the agenda by setting key targets for gender equality linked with women’s rights. Goal 5 advocates an end to violence, such as in the form of female genital mutilation, and discrimination, such as in the form of early marriage. For the first time, several countries like Thailand are now adopting indicators to collect information on sensitive matters, such as female genital mutilation.
In another part of the world, the Inter-American Court of Human Rights, a regional human rights court, recently ordered Costa Rica to recognise same sex marriage, the judgement itself having binding force on all countries which are members of the Inter-American Convention on Human Rights, covering primarily the Central and South American region.
The Inter-American court case is perhaps even more progressive than the current state of international law on the matter, since the latter is not altogether clear on whether states are obliged to recognise same sex marriage. However, the principle of non-discrimination now covers not only a binary approach based on the male-female dichotomy but also gender diversity, particularly linked with sexual orientation and gender identity. The former (sexual orientation) implies that one’s sexual inclination can be heterosexual (between male and female) or homosexual (between persons of the same sex), while the latter (gender identity) invites respect for how a person self-identifies in relation to the person’s gender which might be different from the biological sex assigned at birth.
With regard to sexual orientation and gender identity, the UN now monitors closely the global situation concerning violence and discrimination based on sexual orientation and gender identity. The spirit of the SDGs should also open doors to leave no one behind.
Yet, globally the situation is compounded by the fact that some 70 countries (many of which are from the Asian region) still criminalise same sex relations, leading to the death penalty in some eight countries and territories. On the issue of gender identity, many Asian nations lag behind since they don’t enable transgender persons to change their identity (for example, in passports) , even when these persons have been through gender re-affirming surgery. Thailand is still waiting for a gender identity law to overcome this discrepancy.
Finally, gender equality now opens the door to the issue of gender expression and sex characteristics. Building upon various principles adopted by international experts a decade ago in the Indonesian town called Yogyakarta to underline human rights protection linked with sexual orientation and gender identity, known as the “Yogyakarta Principles”, a group of international experts came together in the latter part of 2017 to adopt a document known the “Yogyakarta Plus Ten” principles, calling for attention also to protect people in relation to gender expression and sex characteristics. The former is linked with respect for persons who wish to imitate the dress or appearance of another gender, namely “cross-dressing”. This should not be stigmatised or criminalised. Thailand’s 2015 Gender Equality Act offers protection against discrimination, also based on such gender expression, and complements this new international development.
Parallel to this, the question of “sex characteristics”, a long neglected issue, is becoming more visible. This concerns the plight of intersex persons born with atypical biological features or characteristics, such as male and female organs found together in the same body. Medical modification procedures or surgery should not be imposed on people in this situation (often from a young age) to alter those characteristics, without their consent, since this may cause much trauma and harm subsequently. Interestingly, the Thai situation is that it is now possible to change identification documents for intersex persons to reflect their gender, subject to the condition that they have to undergo surgery to choose their self-identified gender.
In the countries which lead the way for an open approach to these matters, such as Malta and Argentina, there is no requirement of forced sterilisation or surgery, and the human condition is respected in the natural state of being, epitomising the humane message of “diversity in humanity, and humanity in diversity”.