The Gender Equality Bill that was presented by the Women, Child Affairs and Social Empowerment Minister on 9 May of this year (2024) has caused some controversy, especially after the Supreme Court (SC) determination of the Bill which held the Bill unconstitutional. 

There are both merits and demerits in the arguments made by the SC. More than that, a general misunderstanding and misconceptions about certain terms or how those terms are used makes for a bleak picture. The 1978 Constitution, under the equality clause, omitted the gender equality clause and it only included a clause which protects against discriminations based on sex. Even the Indian Constitution does not have a provision for protection against gender-based violence. The South African Constitution, which is of recent origin, coming into force in 1996, recognises a right not to be discriminated on the grounds of gender under Article 9(3). The notion of gender is also used in other provisions in the South African Constitution which deals with equality and under Article 187, establishes a Commission for Gender Equality. 

Slippery definitions

In the discourse on gender equality, gender has been a slippery term, and its definition has remained with the author for the most part and it is interpreted in light of culture or in the society to which it is applied which is also subject to debate when taken in isolation as terms in their own right. It is also to be pointed out that in the discourse on gender equality, it is often the case that focus is often shifted to the rights of females, while gender is not only feminine. This is apparent from the Bill itself, where the Preamble specifically speaks about the empowerment of women and it also makes some inaccurate claims such as the fact that ‘the Constitution of also recognises special provisions being made by law, subordinate legislation or Executive action, for the advancement of women in order to eliminate gender disparity’ which is only true if the Constitution is interpreted in such a manner since Article 12(4) deals with affirmative actions concerning women, children and disabled persons – three categories sharing not much in common other than vulnerability. Therefore, it would not be fair to combine gender equality and the empowerment of women in a Bill which deals with gender equality. 

It is also worthy to note that the Bill does not define what is meant by gender per se and instead it speaks about gender identity and gender equality. Gender identity is defined as “the cultural, economic, social and political characteristics, role and opportunities through which women, men and others are socially constructed and valued.” What is clear from this is that gender is something that you do not inherit like sex, but something which is ascribed to you by the society or in the cultural context that one may live in. Since it is construed, the law is in reality trying to make a change in the attitude of the people and to inculcate something which is incompatible with the status quo of thinking or the ideology of a given society. A controversial part of this definition is the fact that apart from men and women, it refers to others in its definition. This ‘others’ have raised may eyebrows since others is equated to lesbians, gays, bisexuals, transgenders, queer and questioning persons, intersex persons, asexual persons and others (LGBTQIA plus plus) or the letters that are still to be added. However, upon close scrutiny, LGBTQIA++ is as complex as the term itself and is not only representative of gender but also of sexual orientation. For example, lesbian (L) and gay (G) deals with sexual orientation, transgender (T) mainly relates to gender. To put it more bluntly, lesbians and gays are more interested about advancing their sexual rights while transgenders may have a broader claim to be recognised in their transformation. Therefore, even within the discourse on LGBTQIA++, there is much controversy.    

Special determination

Now, turning to the SC’s special determination on the Bill, there is much confusion and unclear guidelines while having certain merits concerning some of its critiques. The SC is very much critical about the ‘National Policy on Gender Equality and the Empowerment of Women’ which as the SC says is nowhere to be found. While the SC was presented with a document by the same name downloaded from the official website of the Ministry of Women, Child Affairs and Social Empowerment, such could not have been used as a legally binding document in the absence of a specific reference in the Bill. The objective of the empowerment of women is rather questionable in a Bill dealing with gender equality, since gender is not only about females. Further, Article 12(4) does not recognise special provisions made by the Government regarding gender disparity since the focus is about females, children and disabled persons who are given special treatment due to their vulnerabilities. While the prevention of adversity and discrimination based on a distinction principle, including gender, is to be appreciated, how that is to be achieved under the current constitutional setting would require more merit. While the SC does not spell it out in exact terms, if gender equality is to be recognised, the most appropriate method to have adopted would have been to propose an amendment to Article 12 and to have included gender as a category as in South Africa.  

The SC also looked into Section 29 of the Bill which introduced several categories upon which discrimination was to be prohibited that are however not found under Article 12(2) including gender. 

There are two possible ways in which one may look at this. One is to think that the Bill interprets discrimination in a manner other than what is found under the Constitution. The question then is whether such interpretation found in the Bill itself is unconstitutional. The second way to look at the issue is that while the Bill interprets discrimination in a manner more expansive than the Constitution, how does the interpretation violate the Constitution? One possible way is that some might think that such an interpretation may expand the canvas of the fundamental rights (FR) jurisdiction, which is false from the get go since the Bill has no bearing on that. What the Bill seeks to achieve is to provide additional rights which lie outside the Constitution and there cannot be an argument for realising rights through other legislation and rights can only be found under the Constitution. It would be hard to think as to how Section 29 of the Bill would violate Article 12(2) which deals with FR. For example, while Article 12(2) is limited to Executive and administrative acts or omissions, Section 29 is not. At the same time, any violation of Article 12(2) is to be protected via the SC while the Magistrate Court is vested with the jurisdiction regarding the proposed Bill. 

With all due respect, the SC has also misunderstood the specific aims of gender equality when dealing with religious matters. First, the SC raises the issue of incompatibility with Article 9 which requires that Buddhism be given ‘the foremost place’ and the Buddhist ideology is totally compatible with gender equality, and it would be wrong to have a different conception based on certain legislations that have been passed that did not consider the true meaning and essence of Buddhism. One of the major concerns raised in the determination was the issue related to the admission of individuals. It was contended that if the Bill was passed, it would ‘stop public and private institutions of education from confining their admissions to a particular sex’. However, the issue is not ‘sex’ and it is instead gender. Even while Article 12(2) existed, legislations such as the Pirivena Education Act, No. 64 of 1979 were passed and the provisions which violated ‘sex-based discrimination’ were made to stand. It can also be seen that the Bill itself will not give rights and that the Minister will have to make regulations from time to time to realise the objectives of the Bill. Therefore, depending on the nature of the regulation, its validity remains to be challenged subject to the provisions of the Constitution. Therefore, when such action is taken which would go against Article 9, such could be struck down as violating the supreme law of the land, without imposing a total ban on the Bill. 

Perhaps the most ill-founded reasoning given in the determination may be the one on same sex marriages. Section 29 dealing with gender equality states that equality in “private and family life, should be protected.” The SC, while interpreting the term ‘private and family life’ comes to the bizarre conclusion that this may make it possible for ‘any interested party to claim legal status for same sex marriages through the definitions and provisions of this Bill’. This reasoning is unattainable for several reasons. First, the Bill does not talk about marriages, nor does it allow a marriage to be registered under the Bill. Second, a marriage which is to be valid would have to be registered under any of the Ordinances or Acts available for such purpose, and this Bill will not repeal such Acts or Ordinances. Thirdly, even where such a claim is made, it would be available for the Courts to interpret the provision as not giving a right to same sex marriages under the Bill. 

Inculcating morals

The SC also ventures and tries to inculcate its morals as the morals of the society by stating that “The decriminalisation of homosexual relationships and recognition of same sex marriages would have significant cultural and moral implications to the present moral fabric of the Sri Lankan society. It would be contrary to the accepted moral and cultural standards in our nation at present.” This kind of an opinion, even if given by the apex Court in the country, is prejudicial and arbitrary as it comes to this conclusion without much merit or evidence. And to hold that such would be violative of Article 9 without great debate and argument itself indicates the lacklustre nature of this particular argument by the SC.  

While it is to be conceded that the notion of gender equality is a contested one and its meaning and understanding may differ in time and space, the conclusion is that we are not really getting the core of the need. The need is that as human beings, everyone is to be respected for what and who they are, to realise that a gay or a lesbian has a right to be a gay or a lesbian as much as any person has a right to be straight and that whether gay, lesbian, transgender or whatever, all have certain rights which are inherent and undeniable, and that no discrimination is to be made based upon different terms used to denote certain behaviours, beliefs and attitudes. It is also worth mentioning that the lens used to measure and judge these different types of individuals are also arbitrary. For example, you only think of gay or lesbians as having sexual desires for the same kind without appreciating the love, care, empathy and companionship one may have over the others. If gender is a wholesome concept, as long as we keep ourselves depraved, we may not even have equality let alone gender equality. 

(Thilakarathna is a lecturer at the Colombo University’s Law Faculty’s Public and International Law Department and Madushan is a lecturer at the same Faculty’s Private and Comparative Law Department)

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The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication