GENDER EQUALITY IN THE GRENADIAN REFERENDUM
DR FRANCIS ALEXIS QC
10 Oct 16
GENDER EQUALITY PROPOSAL
1. This article addresses one of the proposals being discussed regarding the Grenadian constitutional referendum coming up on the 24th. That is the proposal in the Human Rights Bill for ‘gender equality’, to grant women equal rights with men; not to promote same-sex marriages. The model on which this Grenadian proposal is patterned, considered below, has never been interpreted by any court as importing same-sex marriages.
GENDER EQUALITY ELEMENTS
2. The Bill identifies its elements of ‘gender equality’. It would entitle men and women to equal rights and status in all spheres of life, especially in economic, educational, political, civic and social activities. It would give equal access to academic, vocational and professional training; also equal opportunities to obtain employment and promotion with equal pay for equal work, and to hold public office. It would protect men and women against domestic violence and sexual abuse.
Marriage is not a social activity
3. Some who oppose the gender equality proposal as promoting same-sex marriages say that marriage is a ‘social activity’. Marriage is not a social activity. Entering into marriage is regulated by law. The Marriage Act sets out the requirements for a marriage solemnised in Grenada to have ‘legal effect’ or be ‘lawful’; failing which a marriage is ‘void’; and regulates how parties may ‘contract …marriage’. When marriage ends in divorce or separation, laws regulate such post-nuptial affairs as custody, maintenance and the division of property. Parties about to enter a marriage contract may execute a parallel contract to say what will happen between them if their marriage breaks down. So marriage creates legal relations, it is a legal institution.
4. The Bill says that ‘ “gender equality” reflects the view that men and women should receive equal treatment and should not be discriminated against based on gender’. That is correct. The Grenadian proposal is squarely modeled on the UN 1979 Convention on the Elimination of All Forms of Discrimination against Women, (‘CDAW’), acceded to by Grenada in 1990. CDAW rings out the message that its mission is to eliminate discrimination against women so as to secure for women equal rights with men. No provision in CDAW speaks of promoting same-sex marriages.
5. Advocating equality of women with men has historically aimed at bringing about equality in such matters as electoral voting rights, remuneration, also access to education and a profession; not about promoting same-sex marriages.
6. The Bill says: ‘ “gender” is the range of characteristics pertaining to, and differentiating between, male and female’. Notably, this is talking, not of masculinity and femininity, but, quite differently, of male and female.
7. The characteristics which differentiate between male and female in that definition include physical traits as breasts and genitals, pregnancy, expression, emotional reaction, and dress. These, generally, distinguish the females and males as between whom the Bill would share equal rights. This is the familiar male and female language binary. That there may be varieties of gender makes no difference to the goal of the CDAW-modeled Grenadian proposal to entitle women to equal rights with men. No wonder a leading Grenadian LGBT activist has dismissed this Grenadian approach as ‘backward’, meaning, it is not promotive of LGBT interests, it does not advance gay rights.
NEVER SO INTERPRETED
8. The guarantee to ‘gender equality’, as proposed in the Bill, has never been interpreted by any court in any country as upholding same-sex marriages. Gender equality modeled on CDAW, as is the Bill, has never been applied by any court in any country as importing same-sex marriages.
9. It is also consistent with CDAW that the Bill rightly promotes gender inclusion. It would replace references in the Constitution to ‘he’, ‘him’ and ‘his’ with those respectively to ‘he or she’, ‘him or her’ and ‘his or her’. This is particularly appropriate today, with Grenada now having its first female G-G.
10. Gender equality as proposed for Grenadian constitution reform is a commitment to have women enjoy equal rights with men in national development, on the CDAW model. Provisions fully patterned on that model, as in Grenada, have never been interpreted by any court as upholding same-sex marriages.