Claudette JosephBy Claudette Joseph

In an article published 10th October 2016, I made 2 observations about the Gender Equality Chapter of the Rights & Freedoms Bill. They are:

(1) that the definition of “Gender” as being: “the range of characteristics pertaining to, and differentiating between male and female.” is sufficiently wide to embrace other genders in its interpretation; (2) that this all embracing meaning of “gender” together with the other provisions of the Bill and those of the existing Constitution quite possibly open the door for LGBT persons to assert Constitutional rights based on sexual orientation.

For these observations, I have been heavily criticised. I am not presenting a position on whether or not the LGBT community should enjoy equal Constitutional rights. Indeed, it will be untenable to suggest that all persons should not be protected by the Constitution.

The concern is that the voting public must be given full and frank disclosure of all the possible implications of the Bill so that when they vote, they make an educated, informed decision.

It is a fact that the modern, globally accepted definition of gender is no longer confined to the male/female binary. Yet, the proponents of the Bill insist that the Gender Equality chapter is only concerned with the expansion of women’s rights, and equality between men and women. An honest scrutiny reveals otherwise.

This broad definition of “gender” in the Bill is perhaps not accidental. The question of making special Constitutional provision for members of the LGBT community was considered by CRAC during its deliberations.

On 15th October 2014, CRAC held a consultation at the Trade Centre.

It invited spokespersons from the LGBT community to make a presentation. Mr. Richie Maitland and Ms. Malaika Lowe of Groundation Grenada, a self-described “social action collective” whose mission, among other things, is to “provide active safe spaces to incubate new modes of resistance”, made a passionate plea for the LGBT community to be recognised and provided for in a reformed Constitution.

In its second report to the Cabinet dated 22nd November 2014, at paragraph 17.0, CRAC recommended to Cabinet that Parliament should pass laws to provide for protection against discrimination at workplaces based on sexual orientation.

The Bill at sections 18M and 18Q respectively, proposes to insert provisions in the Constitution that recognise that Grenada has signed on to certain international treaties relating to human rights and gender equality and encourage Parliament to take steps to incorporate these into domestic law. If passed, in interpreting the Constitution, the court will give appropriate consideration to these sections and to the treaties to which Grenada is a party.

Before the provisions on Gender Equality were included in the draft Bill, Mrs. Anande Trotman-Joseph, on a consultancy with the support of UN Women, submitted a report to the Ministry of Legal Affairs. In that report, it was noted at paragraph 5.0, that in the consultations leading to the preparation of the report, “some sensitivity (was) expressed by representatives of the Pentecostal Assemblies of the West Indies (PAWI), about the impacts of the adoption of gender equality, opening the floodgates for advocacy for trans-genders and sexual orientation protection from discrimination to be included in the Constitution”.

In an attempt to allay those fears, “Gender” in that report was expressed to be referring to the binary male/female context and further, not related to transgender or sexual orientation. A specific definition of “gender” that would have adequately reflected the male/female binary intent was recommended.

The suggested definition, borrowed from the Constitution of Guyana, was as follows:
“In this section, gender means male and female, therefore, women and men have equal rights and the same legal status in all spheres of political, economic and social life. All forms of discrimination against women based on their sex are illegal.”

For some unknown reason, that definition was not used in the Bill.

Instead the drafters opted for the expansive, all-embracing definition, apparently ignoring the fears expressed by PAWI.

The word “characteristics” in the definition refers to the features or attributes differentiating between male and female. Implicit in that meaning is the fact that a natural born male can have female characteristics and vice-versa. These characteristics can be expressed in behaviour such as dress, or acquired by medical intervention such as sex reassignment surgery, injecting hormones or some other form.

Any person who by these means, identifies as a gender different from their sex, will be entitled, to equal protection of the law (i.e., to decide their gender) as provided for by the proposed amendment in section 10 of the Bill; and quite properly so.

While sex is biological, gender is a social and cultural construct.

Sex refers to one’s biological category at birth. In its traditional meaning, gender refers to the social and cultural experience of being a woman or a man and the socially assigned roles and values associated with being man or woman. In this traditional, feminist meaning, gender is directly linked to biological sex. This is the binary definition of gender that the promoters of the Rights & Freedoms Bill insist, that the definition of “gender” in the Bill is limited to.

The difficulty that the promoters of the Bill face is the fact that this traditional, feminist, binary meaning of gender is out dated. The modern meaning is well accepted by sociologists, anthropologists, psychologists and legal scholars. It lends to the notion that gender has more to do with one’s self-identity than with socially assigned roles.

Put another way, a person’s gender is how he/she identifies (male, female or neither). The binary notion is more and more being viewed as coercive. There is a saying among social scientists that: “Gender is not a binary, it is a spectrum.”

In an article titled: Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines, Nicole Laviolette, Assistant Prof. of the Faculty of Law at the University of Ottawa, addressed this issue of the shift in the meaning of gender, away from the traditional male/female binary. She made the argument that gender is linked to the hierarchical relationship between men and women and encompasses the identities, social status and roles of men and women.

Further, since feminism attempts, in part, to change women’s social roles, the broader notion of gender which includes social, political, and psychological elements, ‘provides a means to argue that the relative positions of men and women can be challenged and changed’.

Non-conformance with gender norms by the LGBT community implies a refusal to behave in ways dictated by their biological sex and social classification.

Part of the rationale behind this new meaning of gender, is that persons are not doomed to be hostage to their biological characteristics, but have a right to their self-expression and self-identity. That is why the Indian Supreme Court ruled that every person has a right to the gender of their own choosing and to have that right recognised by others.

In the case of gender discrimination, the discrimination is not as a result of the victim’s biological sex, but rather, as a result of the person’s gender identity. Thus a binary interpretation of gender as defined in the Bill cannot hold. If the definition is to be confined to the binary form, how are these people to be given equal protection before the law as is proposed by the amendment to section 13?

This modern definition of gender is what the Indian Supreme Court embraced and applied in National Legal Services Authority v the Union of India when it held that the rights of freedom of speech and expression gave trans-genders the right to expression of their self-identified gender; everyone has a right to choose their gender and to have that right recognised by others and; a person’s chosen gender is an integral part of their autonomy and self-expression.

Pope Francis, as recently as August 2016, expressed the view that this modern, individualistic meaning of gender is a threat to the family as we know it. Fr. Sean Doggett evidently forgot to mention this in his recent article published in the Catholic Focus.

Section 10 of the Bill proposes to amend section 13 of the Constitution to make provisions that: no law shall be discriminatory either in itself or in its effect, all persons shall be equal before the law and shall be entitled to equal protection of the law; and that all persons shall be treated equally and humanely by every public authority.

These proposed inclusions in the Grenada Constitution are all welcome, as they will bring our Constitution more in line with other modern constitutions. They are also already part of the Belizean, Gibraltarian, and Trinidadian Constitutions and were applied by the Courts in those countries in Orozco v the AG, Rodriguez v Minister of Housing and Suratt v the AG of T &T. Therefore it is not quite correct to suggest, as Dr. Alexis, Richie Maitland and others have, that because the courts ruled a particular way in those cases, it will rule the same way on these issues if they arise in Grenada under the CURRENT Constitution.

The fact is, our Constitution does not have those provisions. That is why it is not just the broad definition of gender in the Bill that opens the door. It is the definition, together with the other provisions of the Bill.

All genders will be protected by the Gender Equality Chapter because Constitutions are regarding as living, breathing documents that are given broad, generous and purposive interpretations, with due regard to international conventions that the State is party to. This is especially true when interpreting human rights.

The Privy Council in Reyes v The Queen [2002] expressed the view that: “the Court has no licence to read its own predilections and moral values into the Constitution, but it is required to consider the substance of the fundamental right at issue and to ensure contemporary protection of that right in light of evolving standards of decency that mark the progress of a maturing society.”

Mr. Richie Maitland agrees that indeed a broad, “expansive”, purposive interpretation is what will apply to Constitutional provisions as contained in this Bill. Yet, he insists that a limited male/female binary interpretation of gender is what will apply. These two propositions clearly are conflicting.

To insist on the binary interpretation, is incorrect and misleading.

To say that the provisions of this Bill together with what exists will not open the door to the LGBT community is equally incorrect and misleading.

(Claudette Joseph is a local attorney-at-law who is associated with Amicus Attorneys)

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