• The Supreme Court has launched a handbook that contains a glossary of gender unjust terms and suggests alternative words and phrases which may be used.
• The ‘Handbook on Combating Gender Stereotypes’ seeks to empower judges and members of the legal community to identify, understand and counteract harmful stereotypes about women.
• The handbook identifies common stereotypes about women and demonstrates the inaccuracies of these stereotypes and how they can impact the application of the law.
• The Supreme Court has given a list of stereotypical words and suggested alternative terms for being used in legal discourses and judicial pronouncements.
What is a stereotype?
• A stereotype is defined as “a set idea that people have about what someone or something is like, especially an idea that is wrong”.
• Stereotypes are typically held against individuals by virtue of their membership of a group. They are assumptions or beliefs that individuals belonging to specific social groups have certain characteristics or traits.
• For example, people in many countries believe that all Indians are good at science and mathematics. Similarly, even within India, people may believe that individuals from certain regions look a particular way or eat a particular type of food.
• People are constantly subjected to stereotypes based on their nationality, region, caste, gender, disability, sexuality, skin colour, physical appearance, and race.
• Gender stereotypes are assumptions about the characteristics that individuals of particular a gender have, or the roles that they should perform. This is often seen in assumptions about the different characteristics men and women are believed to possess, and the roles they are expected to perform. For example, one of the most common stereotypes about girls or women is that they like the colour pink.
• It is a stereotype that women who dress in clothes that are not considered to be traditional want to engage in sexual relations with men. If a man touches such a woman without her consent, it is her fault. The reality is the clothing or attire of a woman neither indicates that she wishes to engage in sexual relations nor is it an invitation to touch her. A man who touches a woman without her consent must not be permitted to take the defence that the woman invited his touch by dressing in a particular way.
The most common kinds of gender stereotypes that concern women are:
i) Stereotypes based on the so-called ‘inherent characteristics’ of women.
ii) Stereotypes based on the gender roles of women.
iii) Stereotypes related to sex, sexuality, and sexual violence.
How do stereotypes function?
• Reliance on stereotypes is often sub-conscious. We may rely on stereotypes when interacting with individuals even without intending to do so. Stereotypes influence our thoughts and actions towards other people.
• They prevent us from viewing the individual before us as a unique person with their own characteristics and lead us into making inaccurate assumptions about them.
• Stereotypes can prevent us from understanding the reality of a situation and can cloud our judgement.
• On a micro-level, stereotypes lead to exclusion and discrimination in workplaces, educational institutions, and public places.
• For example, even where male and female employees are of the same designation, a female employee may be tasked with administrative duties such as organising office-events or buying stationery, while male employees are exempted from such tasks.
• Stereotypes may also have an adverse impact on the mental health or professional performance of the members of the stereotyped group because they are aware that they are being viewed in a particular manner.
Research has shown that we can avoid much of the negative impact of stereotyping by:
i) Recognising that we hold certain implicit biases or rely on certain stereotypes.
ii) Making a conscious and deliberate effort to overcome or resist the implicit bias or stereotype.
Impact of stereotypes on judicial decision-making
• Like any person, a judge may also unconsciously hold or rely on stereotypes. If a judge relies on pre-conceived assumptions about people or groups when deciding cases or writing judgments, the harm caused can be enormous.
• Stereotypes impact the impartiality and the intellectual rigour of judicial decisions where they cause judges to ignore or bypass the requirements of law or distort the application of the law vis-à-vis specific persons or groups.
• Even when judges reach legally correct outcomes, the use of reasoning or language that promotes gender stereotypes undermines the unique characteristics, autonomy, and dignity of the individuals before the court.
• Using stereotypes, instead of objectively evaluating the situation, goes against the constitutional principle of ‘equal protection of laws’, which posits that the law should apply uniformly and impartially to every individual, irrespective of their membership to a group or category.
• The use of stereotypes by judges also has the effect of entrenching and perpetuating stereotypes, creating a vicious cycle of injustice.
• For example, a common stereotype is that individuals from low-income backgrounds are less trustworthy and more likely to commit crime. This is a harmful stereotype, as it may lead to the social exclusion of individuals from low-income backgrounds.
• However, if a judge relies on this stereotype in decision-making, the harm may be magnified.
• Consider a judge who has to decide the bail application of two individuals charged with the same offence, the first individual is from a low-income background and the second from an affluent background. The judge may set a higher bail amount, or more stringent bail conditions on the first individual from a low-income background than the second individual from an affluent background, purely because the judge holds the mistaken belief that the individual from a low-income background is more susceptible to flee or commit further crimes.
• This is an example of how stereotypes in judicial reasoning can prejudice a person’s individual rights and be discriminatory. Further, if the individual cannot afford the bail amount, and is jailed, the stereotype is effectively reinforced and perpetuated.
• This is why judicial reasoning must be based on the individual merits of every case and not on stereotypes.
• Some gender stereotypes may have an impact on judicial decision-making. For instance, some people believe that women lie about men having sexually assaulted or raped them. If a judge were to utilise such a stereotype when deciding a case, it may cause them to unfairly discard or discount the testimony of a survivor or victim of sexual assault, leading to grave injustice.
• This is why it is vital that judges impartially decide each case on its individual merits rather than relying on pre-conceived notions about men or women.
• The handbook aims to help the Indian judiciary identify and mitigate the use of stereotypes and stereotype-enforcing language against women in their decision.