The Challenges

Despite gender-based law reforms aimed both at fulfilling international standards and ensuring the relevance of the law to the needs of all Sri Lankan citizens, there are still pieces of legislation and legal practices as noted by UN Development Programme,27 _{which are}

gender inequitable or unequal in practice or which result in gender inequity or inequality. This is primarily because of the contradictory and unresolved understanding of the relationship between the commonalities and differences between men and women.

As can be reiterated once again with reference to the Sri Lankan cases, utilizing only gender equality as a legal concept can lead to unforeseen problems. On the other hand, using only gender equity has not been successful either. Yet as clearly stated in the concluding observations of the CEDAW Committee,28 _{the concept of gender ‘equality’ and ‘equity’ must}

not be used synonymously or interchangeably. Nonetheless, can the two concepts be used concurrently?

Today, the United Nations, while subscribing to the concept of gender equality, is also simultaneously bringing in the notion of social equality (especially in the Sustainable Development Goals). There are other models also articulated by UN related agencies such as women’s empowerment, an equity focus, social equity, etc. This conveys that gender equality alone (whether substantive or otherwise) has become inadequate in discussing gender justice. Furthermore, feminist scholars focusing on diversity29 _{have long espoused the combination of}

what are considered to be gender neutral and gender differentiated approaches. Nevertheless, there are a number of challenges in applying the concepts of gender equity and gender equality jointly.

Within the Sri Lankan context, the first challenge is to nuance the concept of gender to include the marginalized LGBTQI identities based on a twofold understanding of sex differences and gender differences, and correspondingly, the ways in which the biological and the socially-constructed can also be amalgamated in today’s context. The second challenge is to acknowledge that some differences are inherent differences and therefore not comparable, such as those implied by pregnancy. In other words, it has long been argued that the state of pregnancy is not a physical event that men and women hold in common; nor is it a disability or an illness.30 _{Despite the rationales of substantive equality, the concept does not adequately}

capture the distinction of this phenomenon—even though individual experiences might differ. The concept of equity therefore is integral to understanding biological differences, and to establishing female norms.

The third challenge is to recognize that groups of men, women, or other sex and gender identities, though categorized as such, are not always socially or biologically similar 27 _{Cheema, Hasna (2010). “Diversity within Family Laws May Undermine Women’s Rights in Sri}

Lanka,” in Benchmarking National Legislation for Gender Equality - Findings from Five Asian Countries, Human Development Report Unit UNDP Asia-Pacific Regional Centre, Bangkok.

28 _{UN (2007). “Concluding Comments of the Committee on the Elimination of All Forms of} Discrimination Against Women, Report of Vanuatu.” Available at: http://www.un.org/womenwatch/ daw/cedaw/cedaw25years/content/english/CONCLUDING_COMMENTS/Vanuatu/Vanuatu- CO-3.pdf

29 _{See, for ex.,: Lister, R (1997). Citizenship: Feminist Perspectives. Macmillan: London.; Scott, J. (1997).} “Deconstructing Equality-Versus-Difference; Or the Users of Poststructuralist Theory for Feminism,” in Meyers, D. Feminist Social Thought: A reader. Routledge: New York.

30 _{Eisenstien, Zillah, R (1988). The Female Body and the Law, University of California Press, Berkeley, Los} Angeles, London.

or homogenous. There are disparities, inequities, hierarchies, capacities, privileges and vulnerabilities within the individuals comprising these identity groups. While lawmakers may choose to emphasize a collective or group identity, an individual may interpolate or subscribe to multiple, intersecting identities (as pointed out by Kimberle Crenshaw)31 _{or have}

identities imposed on him or her—based on biology, social delineations, specific histories and the operation of socialization, of ideologies and structures of power. It is vital then that there is acknowledgement of identities as layered and intersecting, contextual and time-bound; that they lead to substantially different life experiences. It must thus be noted, that any legal categorization should be seen as socially-constructed and strategic, given that life experiences cannot be homogeneously siloed and isolated into sexes, groups, fields, sectors and activities.

Having stated that, the fourth challenge is to ensure that the concept of gender equity is not allowed to become subservient to other socio-cultural differences and intersections. Foremost to this argument is the need to conceptualize societies, cultures and gender as socially-constructed and not as a priori, inflexible, static states. The fifth challenge in using the concepts of gender equity and equality concurrently in the law is in engaging with the notions of similarities and differences simultaneously, on the basis that both similarities and differences can exist in an entity at the one and same time. No doubt, this is against the Aristotelian principle of non-contradiction. However, it has become evident that legal epistemology based on neither classical, nor modernist, nor Positivist frameworks have been able to address some of the complexities of people’s lived experiences. Therefore, post-modern perspectives may be advantageous in conceptualizing both gender equity and gender equality if there is to be both de jure and de facto gender justice.

In conclusion then, the goal of gender justice can be achieved by balancing gender equity and gender equality. This means allowing the gaps in one concept to be fulfilled by the other. ensuring that the disadvantages of one are rectified by the other; and guaranteeing that the limitations/productive potential of one are balanced by the other.

31 _{Crenshaw, Kimberle (1991). “Mapping the Margins: Intersectionality, Identity Politics, and Violence} against Women of Color,” Stanford Law Review, 43(6). 1241-1299.