Gender bias and judicial officers

Diary of a mothering worker

DR GABRIELLE JAMELA HOSEIN

WITH ITS latest publication, “Justice through a Gender Lens,” the Judicial Education Institute (JEI) has signalled its intention to resist gendered biases, stereotyping and discrimination in our courts. This is because these can result in decisions, and their consequences, that are ultimately unfair, dehumanising and unconstitutional.

Stereotypes may be directed at women, men and transgender people, ultimately denying them equality and justice. For example, men – like women – are meant to naturally fulfil the role of nurturer. Yet, gender stereotypes that associate manhood with being only a provider may lead to court decisions regarding custody that don’t reflect men’s equal responsibility and role as caregivers. This could lead to feelings of rejection among fathers, and to the development of men’s groups organised around their anger.

In another example, sex workers may find it more difficult to prove they have been raped because victims are often required to be respectable and above moral reproach to be believed or not held responsible. However, like other women workers, they do not give up rights to consent and freedom from violence, even in transactional sex encounters.

This position alone goes against common stereotypes about which women are truly undeserving of male sexual assault, and which women can be violated with greater impunity. Here, sexual stereotypes create a biased system to which different women cannot equally turn for justice.

Gender biases of all kinds exist in our courts. In a Caribbean judicial officers survey in 2015, 53 per cent of judicial officers surveyed believed women should be given custody of children and 41 per cent thought that a man’s primary role is to provide financial support for his family.

This is fascinating because it reproduces women’s unequal responsibility for child care and all the planning, time management, emotional and mental labour, daily and nightly exhaustion, and career sacrifice involved. It also wrongly assumes that women have not historically also carried the burden of financial support for families across the Caribbean.

The myth of the male breadwinner is illustrated every time men fail to provide regular and sufficient maintenance support to meet children’s needs, which is a widespread social phenomenon and familiar to judicial officers themselves.

In a Trinidad and Tobago survey of judicial officers, 44 per cent of those surveyed believed homosexuality was against “God’s laws” while 52 per cent thought that attitudes regarding appropriate roles of men and women influence judicial officers’ decisions.

Yet, both our local courts and the Caribbean Court of Justice are upholding rights to a legal system in which personal or religious beliefs cannot prevent access to impartiality, respect and dignity for all. In the JEI publication, this includes referring to transgender people as they themselves identify.

It also includes enabling litigants to access courts even when they are dressed in ways that do not fit stereotypes regarding how a person of their sex ought to dress. After all, the nail in the coffin for this country surely cannot be people’s choice of clothes.

The TT Council of Evangelical Churches may maintain that God created only two genders, but this is a specifically biblical position, in a multi-religious society which occupies First Peoples’ land, and in a world in which many other cultures hold different and equally valid beliefs regarding gender.

In both Indian and African religions, there are gods and goddesses that combine male and female qualities, characteristics and identities. In our modern country are also people for whom secular decision-making protects from patriarchal and theocratic authoritarianism, and the self-righteousness of its violence and violation.

The global conventions and treaties to which we are signatory, and even our 1976 republican Constitution, create state obligation to recognise the human rights of every individual and to prevent discrimination on the basis of sexual and gender orientation, not just race, creed or religion.

This isn’t about a current push to normalise LBGTQIA behaviour in the country. It’s about strengthening tolerance and inclusion, extending trust in our institutions, and enacting due protection from prejudices that harm.

It’s heartening to see the judiciary deal a severe moral blow to gender bias and the vulnerabilities it produces. Righteousness exalts a nation when state institutions, whose sole purpose is to ensure justice, show that they hold this expectation in good faith.

It will be interesting to see if and how the Gender Equality Protocol for Judicial Officers plays out in the real life of the courts. For now, a whole guideline exists to enable judges and others to recognise something very simple. Each of us wants the right to live safely and equally as we choose.

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