Ensuring Substantive Equality through the Elimination of Gender Stereotypes

Simone Cusack If I were Attorney-General, I would prioritize, as an issue of national importance, the elimination of discrimination and the realization of substantive equality for men and women.  In so doing, I would seek, inter alia, to combat the root causes of discrimination and inequality, including, in particular, wrongful gender stereotyping.

Gender stereotypes are generalised views of attributes possessed by, or the roles that are or should be performed by, men and women respectively.  Gender stereotypes are not necessarily harmful or discriminatory.  As journalist and social commentator Walter Lippmann rightly pointed out in 1922, gender stereotypes can, for example, be useful tools to help process the social complexity of the world.  However, when stereotypes are applied in ways that ignore individuals’ needs, wishes, abilities and circumstances, or that create gender hierarchies, human rights are violated.

Gender stereotyping affects men and women.  Take the example of the sex-role stereotype that women should be primarily caregivers.  The operation of this prescriptive stereotype has deprived many women of the opportunity to participate in public life, gain economic self-sufficiency, and forge identities independent of their role as caregivers.  It has also deprived society of their valuable contributions.  At the same time, this stereotype has deprived many men of the opportunity to participate in caregiving, and denied them recognition of their role as carers.  As the Constitutional Court of South Africa explained in President of the Republic of South Africa v Hugo, this harms men by failing to recognise their equal worth and dignity as fathers, carers and individuals.  It also burdens them with the responsibility of being primary breadwinners.

Despite significant strides, wrongful gender stereotypes remain socially pervasive and persistent in all sectors of Australian society.  This was recently evident during the national debate concerning paid maternity leave.  Largely invisible from this debate was the role that men play in caregiving.  While the provision of paid maternity leave is essential to enable women to recover from the physical act of childbearing, gender stereotypes prevented a more robust debate about the role of both parents and the broader community in the provision of childcare.  Stereotypes also limited debate about the provision of childcare in same-sex relationships.  What this debate teaches us is that, while it is necessary to eliminate direct and indirect discrimination, it is not sufficient to achieve substantive equality.  The Australian Government must go further; it must reformulate its laws, policies and practices to ensure that stereotypes do not devalue men or women, or script them into rigid and pre-determined sex-roles.

The rights to equality and non-discrimination require respect for the equal and intrinsic worth of all human beings, both men and women; it is imperative to honour the basic choices they make (or would like to make) about their own lives, and enable them to shape their own identities free from stereotypes.

If I were Attorney-General, I would adopt a number of measures to eliminate the wrongful forms of gender stereotyping that continue to impede efforts to eliminate discrimination and achieve substantive equality.  Such measures would include the following.

First, as Attorney-General, I would seek to ensure Australia’s compliance with international instruments, such as the Convention on the Elimination of All Forms of Discrimination against Women, which require States Parties to eliminate wrongful and discriminatory stereotyping.  In this connection, I would seek to ensure that all branches of government refrain from gender stereotyping and, where appropriate, take positive measures to eliminate and remedy this wrong.  As Justice L’Heureux-Dubé of the Supreme Court of Canada explained in R v Ewanchuk, ‘individuals should be able to rely on a [legal] system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions’.  Gender stereotypes should not be permitted to surface in a state’s legal system, and courts should denounce laws, polices and practices ‘which not only perpetuate archaic myths and stereotypes … but also ignore the law’.

Second, if I were Attorney-General, I would follow through on the recommendation of the Joint Standing Committee on Treaties to ratify the Optional Protocol to CEDAW.  In so doing, I would underscore the importance of ensuring access to an international means of redress for violations of women’s rights, including in cases of stereotyping.  This would send a clear message that Australia takes seriously its commitment to achieving substantive equality.

Third, as Attorney-General, I would seek to take advantage of the opportunities presented by the reviews of the Sex Discrimination Act 1984 (Cth) and the Equal Opportunity Act 1995 (Vic) to highlight the linkages between stereotyping and systemic discrimination and inequality in Australia.  In particular, I would work together with stakeholders to develop a national action plan to address the stereotyping phenomenon.

Finally, if I were Attorney-General, I would advocate for a national Charter of Human Rights, and undertake an inquiry into the merits of enacting a federal Equality Act.

In conclusion, in order to combat discrimination and ensure substantive equality, greater priority must be given to the elimination of wrongful gender stereotyping.  If I were Attorney-General, I would seek to give wrongful gender stereotyping the attention and resources that it requires.

Simone Cusack is a Public Interest Lawyer at the Public Interest Law Clearing House (Vic).  She is co-author (with Prof Rebecca J Cook) of Stereotyping Women: Transnational Legal Perspectives (forthcoming)