Enforcing Rights and Correcting Wrongs - Asia-Pacific Regional ...

women from getting to the institutions of justice, like the
police stations and courts, in the first place. Even when
they do find their way to these institutions, finding equal
treatment cannot be taken for granted.
While legal equality may require an even-handed
application of principles of the rule of law – supremacy of
law, equality before the law and predominance of the legal
spirit 3 – gender equality in law requires something further.
It requires uncovering gender biases and taking cumulative
historical disadvantages into account. Women and men
have different starting points and face different social,
economic, political and institutional circumstances that
shape rights, opportunities and capabilities. Sometimes
equality is assumed to be at work in laws intended to treat
everyone alike, but when examined against the backdrop
of gender-linked discrimination, inequality can become
explicit. Even with “neutral” laws in place, courts may view
women through a gender-stereotype prism, influencing
judgments.
1.3 Legal approaches for gender equality
The concept of equality is an area of much debate. Its
application to gender is based on the notion of equal value
of all human beings. Three main approaches on equality
in law 4 can be identified that are relevant for gender:
The traditional approach is about “non discrimination” that
entails equal treatment of all. It is based on the ‘sameness’
principle. Typically, it ignores gender differences between
men and women and does not aim to achieve equality
of outcomes. A law that treats women differently, for
1. Gender Equality In Law
example, provisions for affirmative action, may be
considered an infringement of equality.
The protectionist approach sees women and men differently.
It is also based on the notion that “likes should be treated
alike” 5 but considers biological differences and justifies
differential treatment of men and women, often perceiving
women as “weaker” in need of protection. The objective
of law then is to protect women. For example, labor laws
may prevent female workers from working in night shifts 6
to protect them. The effect is often to restrict the victim
rather than the perpetrator.
The corrective approach is consistent with the principle
of substantive equality. It takes into account historic
discrimination against women and seeks remedial
measures. Over the past few years several progressive
legal initiatives – legislative and judicial – have in fact
been taken in many countries of the region, demonstrating
commitments to advancing women’s legal rights.
Promoting gender equality in the legal systems requires
recognition that women, men and persons of other gender
identities, can experience laws and legal systemsdifferently. 7
It requires ensuring equality of access and results. 8 This
means going beyond mechanical equality in law that may
ignore the different circumstances faced by people that
are directly linked to gender. Thus, under the corrective
approach,itincludesredressinghistoricalandsystemiclegal
disadvantages, and is consistent with temporary special
measures in favour of the systematically disadvantaged.
Without such a consensus, the highly unequal conditions
for men and women will continue as the gender snapshots
from Asia-Pacific indicate in the section 2.
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