Reconstructing Gender as a Social Construct: Promoting Substantive Equality Across Genders

Abstract

The article attempts to critically examine gender as a social construct, advocating for nuanced reforms to promote equity, equality and inclusivity across all gender identities. Traditional laws are rooted in the binary concept of gender, equating it with a biological sex and imposing a rigid categorisation that marginalises the non-binary, genderqueer, transgender, and intersex persons. Such systems deeply perpetuate discrimination in the credentials of identity, employment protections, family laws and health care access, etc., failing to incorporate the contemporary understandings of gender as a fluid and wide spectrum shaped by economic, cultural, and political forces. Sociological relational models, psychological identity affirmations and the cultural relativism of anthropology trace the legal evolution of gender. The patriarchal binary, inheritance and marriage were concretised in pre-modern and colonial laws under the influence of scriptures like the Manu Smriti and shaped laws like the Hindu Widows Remarriage Act of 1856. Constitution of India, through articles like 14, 15, and 21, challenged these patriarchal norms with milestone judgments like in the case of NALSA v. Union of India, recognising the identity of the transgenders and the case of decriminalisation of homosexuality, Navtej Singh Johar. C-16 Bill of Canada and the self-ID laws of Argentina highlight the global progress amid gender gaps. Binary frameworks are often criticised for their single excess approach, ignoring intersectionality, whereas gender, by its nature, intersects with caste, race, class, disability, sexuality, compounding various crimes of oppressions like the vulnerabilities of blind Dalit women. Stereotypes in the “reasonable man” test, asymmetrical family laws, and Lack of gender-neutral language in law, entrench inequalities and demand for reconstruction of neutral constructs. The principle of reform emphasises simplification of the process of self-identification, non-binary “X” markers, gender-neutral statutes, especially in the family domain, criminal and labour laws, anti-discriminatory acts, establishing affirmative equity-targeted programs, and the mechanism of gender-affirming care. A gender sensitisation training to the judicial officers, establishment of fast-track benches to ensure effective and timely enforcement, and balancing the idea of privacy by the state agencies and private parties can create a gender friendly environment in the legal domain. Challenges of social and cultural resistance persist, but the contemporary jurisprudential advances hints transformation. Law is expected to prioritise substantive equity over formal equality while fostering inclusive societies, affirming gender diversity and upholding the dignity of all gender identities.