Gender And The Law In The Commonwealth Caribbean

In particular, Eudine Barriteau mentions that, ‘gender relations encode and often mask unequal power relations between women and men and between women and the state. In other words, often what is understood as, “that is how Caribbean man stay”, or “is a woman what you expect?” is really a way of reducing the power dynamics of gender to ascribed roles. This ideology, which penetrates the social hierarchy of gender, poses the valid question of whether a person’s sex is virtually related to that person’s presence and role in society. In order to grasp a firm understanding of this ideology, it is important to identify and highlight the relationship between the genders as well as the relationship between gender and the commonwealth Caribbean state itself.

The Dynamic between the Genders

According to Tracy Robinson, “we hear so much about women being compromised, but there is hardly a man who would ever admit that he has been forced into situations he would have liked to escape. ”[footnoteRef: 3] Agreeably, this social dynamic between men and women is deeply embedded with the Commonwealth Caribbean society. For instance, if a man experienced unwanted sexual advances from a woman, he would be labeled “gay” and/or “unmanly” as it is out of the societal norm of the sexually liberated ‘man’. However, similarly to the train of thought expressed by Barriteau who specifically states, “that is how Caribbean man stay”, or “is a woman what you expect?”, once the genders fall within the scope of what is expected and what has been ascribed, then there is social acceptance by both genders. There seems to be a subconscious stereotyping committed by both genders and until the social construct, which associates certain roles and obligations as well as status with a particular gender has been dismantled, then the inequality faced by one gender over the other will continue to exist.

How the state of Jamaica views Gender

The Convention on the Elimination of all Forms of Discrimination Against Women[footnoteRef: 4] (CEDAW) has been ratified by a number of Commonwealth Caribbean states. Noteworthy is Article 5 (a), which provides that, “State 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. ”

Therefore there is a strong presence of equality between the sexes that has been recognised. However, does this equality between the sexes realistically extend to equality between the genders? Barriteau discusses the common misconception people have when defining sex and gender. Therefore, although there have been provisions put in place which speak to rejection of discrimination as it relates to the sexes (biological), has this been understood to cover gender (social)? The Sexual Offences Act of Jamaica[footnoteRef: 5] perfectly highlights this societal misconception.

Section 3 specifically states that, “a man commits the offence of rape if he has sexual intercourse with a woman – [5: 2009] (a) Without the woman’s consent; and(b) Knowing that the woman does not consent to sexual intercourse or recklessly not caring whether the woman consent’s or not. For a country that has ratified CEDAW, the Sexual Offences Act has been evidently driven in the direction that protects women and not men. Can a man not be raped? Is it so entrenched in our social psyche that we make an outright elimination of the male gender to be afforded protection against rape? Is this connected to the idea that the woman is the weaker sex and thus the weaker gender and subsequent to this, requires a higher degree of protection? According to Ramona Biholar, “the obligation to address prevailing gender relations and gender-based stereotypes calls for an alteration of those patters of human relations, laws or structures that form or cause discrimination. ”[footnoteRef: 6] Biholar goes even further to mention General Recommendation No. 25, which states “the position of women will not be improved as long as the underlying causes discrimination against women, and of their inequality, are not effectively address. ”However, the reference to the General Recommendation No. 25 may be dangerous as in Jamaica, the position of women is not limited to the discrimination against women, but may also be related to the discrimination against men. The portrayal of women being the “weaker” of the two presents itself through discrimination against men in the Sexual Offences Act; in other words, not affording men the same protection because maybe men aren’t in need of such protection.

How other states view Gender

Previously mentioned was the Sexual Offences Act of Jamaica, which provides protection for women against rape and does not afford the same to men. However, in Barbados, rape is defined as an offence committed by “any person who has sexual intercourse with another person without the consent of the other person. ”[footnoteRef: 8] This law is extremely gender neutral and expands the definition of rape to include both male and female. However, does this gender neutrality within the law represent gender equality within society? According to Tracy Robinson, “the representation of men and women as desexed, ungendered bodies – just people with different body parts, as implied by the Barbados Sexual Offences Act – is pure packaging. ”[footnoteRef: 9] She refers to Catharine MacKinnon, who argues, “Rape equates female with being violable and female sexuality with forcible intrusion in a way that defines and stigmatizes the female sex as gender. ”

The History of Unequal Gender Relations

Gerda Lerner delves into the history of unequal gender relations in order to establish the foundation on which society today has been built. She discovers that patriarchy is the most significant contributor when speaking about gender and gender roles within society. In her article, she provides the answer to patriarchy offered by traditional male scholars when she states, “women have not produced important advances in thought because of their biologically determined preoccupation with nurturance and emotion, which led to their essential ‘inferiority’…”She goes further to share the view of feminist thinkers, which is that, “patriarchy as a system is historical…If patriarchy were ‘natural’, that is, based on biological determinism, then to change it would mean to change nature. ” The feminist view is definitely more logical as patriarchy is derived from gender and not sex. In other words, for patriarchy to even exist, there ought to be social dominance of the male gender over the female gender as a result of, inter alia: economic, religious and political factors, which are all social aspects as opposed to biological aspects. However, patriarchy has penetrated the realm of biology as it is used to control women’s sexuality and procreativity.

Finley alludes to the idea of law being patriarchal. According to Finley, “Men have shaped it, they have defined it, they have interpreted it and given it meaning consistent with their understandings of the world and of people "other" than them. As the men of law have defined law in their own image, law has excluded or marginalized the voices and meanings of these “others”. This is evident in the area of tort law where the principle of reasonable “man” applies. It is assumed that the way a man thinks would be the correct standard. It is heavily relied upon in cases Negligence cases. According to Lerner, “women’s sexual subordination was institutionalized in the earliest law codes and enforced by the full power of the state. ”This is evident in society today as, for instance, laws against abortion is an inadvertent means of control over the female gender; taking away the woman’s choice to either continue or put a stop to her own pregnancy. However, this form of control does not exist when it comes to the male gender. As Biholar has stated, “the obligation to address prevailing gender relations and gender-based stereotypes calls for an alteration of those patters of human relations, laws or structures that form or cause discrimination. ”

According to Findley, “The claim that law is patriarchal does not mean that women have not been addressed or comprehended by law. Women have obviously been the subjects or contemplated targets of many laws. But it is men's understanding of women, women's nature, women's capacities, and women's experiences-women refracted through the male eye-rather than women's own definitions that has informed law. ” Therefore, the juxtaposition of both articles shows that history has continued to repeat itself and the only way out of this patriarchal and discriminatory mindset may be premised in Utopia due to the fact that society has essentially been crafted from a male perspective and as rightfully stated by Gerda Lerner, “people cannot conceive of something they have not themselves experienced or at least that other have before them experienced.

The Way Forward

In exploring the conversation further, how are we to proceed, or try to proceed, when thinking about the presence of women and their role in society? Finley states that “Law will continue to reflect and shape prevailing social and individual understandings of problems, and thus will continue to play a role in silencing and discrediting women. ”[footnoteRef: 18] In order to alleviate this, Findley states that “We must pursue trying to bring more of women's experiences, perspectives, and voices into law in order to empower women and help legitimate these experiences. ”Gerda Lerner references Joan Kelly’s 1979 article which states, “…Woman’s place is not a separate sphere or domain of existence but a position within social existence generally… This position complements Lerner’s position, which is, “we are adding the female vision to the male and that process is transforming… when we wee with one eye, our vision is limited in range and devoid of depth. When we add to the single vision of the other eye, our range of vision becomes wider, but we still lack depth. It is only when both eyes see together that we accomplish full range of vision and accurate depth perception. ” What is so eye opening about this metaphor is that it aligns perfectly with Ramona Biholar’s article that also focuses on transformation, and therefore, maybe the aim to dismantle this linear mindset, which incorporates patriarchy and inequality, is not so far-fetched. As nicely put by Gerda Lerner, “we will never know unless we begin. The process itself is the way…”

Conclusion

In conclusion, it has been established that the societal misconception as it concerns the definition of both gender and sex continues to exist, especially within the commonwealth Caribbean context. However, the articles referred to help to shed light on the fact that unequal gender relations are built in the very core of our societal structure, which has nothing to do with biology. Therefore, with this being the case, as it would be nearly impossible to dismantle aspects of biology, it is quite possible to dismantle the social aspects, which contribute towards the inequality between the genders – particularly, that subsequent to the biological differences between the sexes, the male gender reigns superior when compared to the female gender.