The Anti-Stereotyping Principle: A Conundrum in Comparative Constitutional Law

Unnati Ghia and Dhruva Gandhi

National Law School of India University, Bangalore

Bombay High Court

Law making based on sex or gender stereotypes is generally regarded as impermissible, in comparative constitutional law. In this post, we examine whether this is a bright line rule or whether deviations from this principle can be justified.

As far back as the 1970s, the Supreme Court of the United States (“SCOTUS”) in Weinberger v Wisenfeld struck down a social security statute that extended survivors’ benefits only to widows because it relied on a stereotypical notion of men being the primary breadwinners. More recently,  the Supreme Court of India (“SCI”) in Secretary, Ministry of Defence v Babita Puniya rejected the State’s exclusion of female officers from permanent commission in the army, as the exclusion was justified in terms of a stereotypical understanding of the ‘inherent physical differences’ between men and women.

However, courts have not been uniform in the application of this reasoning. First, courts have not always identified the underlying stereotype; courts have even held some statutes constitutionally valid, despite the law relying on a stereotype. In Micheal M v Superior Court of Sonoma County,  SCOTUS upheld a gendered rape law that restricted the definition of ‘rape’ to acts against girls under the age of eighteen, on the basis that only ‘women’ could get pregnant, thereby maintaining the stereotype of men as necessary aggressors.

Second, courts have on occasion upheld stereotypical laws because they confer a material benefit. For instance, in Lommers v Minister Van Landbouw, the European Court of Justice (“CJEU”) found valid the practice of an employer prioritising the provision of child-care facilities for female employees over male employees. While explicitly noting that the policy perpetuates gendered stereotypes about parenting roles, the Court still held that the policy did not violate the Equal Treatment Directive.

The question  then is whether there are any circumstances in which reliance on stereotypes in the development of law and policy is permissible.  We argue that laws and policies that rely primarily on stereotypes should be impermissible. However, if the objective of the law or policy is to redress disadvantage, accommodate difference, enhance participation or address violence, reliance on stereotypes may be accepted in some circumstances.

History of the Anti-Stereotyping Principle

When Ruth Bader Ginsburg first employed an anti-stereotyping approach, it was on behalf of a male plaintiff (“Moritz”) who had been denied a caregiver’s tax deduction on the basis of his sex. The plaintiff was a lifelong bachelor who looked after his elderly mother. In her brief, Ginsburg intentionally veered away from relying on the anti-subordination principle. From an anti-subordination perspective, such policies could be justified as benign or as designed for the benefit of women, and, therefore, there would be no apparent breach of the US Constitution’s Equal Protection Clause. Instead, Ginsburg argued that such policy entrenched divisions based on gender-based norms.  Thus, she founded her arguments on an anti-stereotyping principle.

The premise of the principle is that the subordination of women is perpetuated by men following traditional masculine stereotypes. The State perpetuates these gender roles through the policies and legislation that rely on them. Hence, a piece of legislation which at first blush may benefit women may reinforce a stereotype. Similarly, judicial decisions that utilize stereotypes cement inequality in social orders.

Stereotypes are problematic because they fix gender identities and traditional assumptions about what men and women ought to do. Socio-political institutions then base their decisions on these (incorrect) assumptions. Individuals who stray away from the norm are routinely sanctioned. In the process, personal autonomy is systemically eroded by a heteronormative, patriarchal order. These harms persist even when a stereotype has a positive impact on a minority such as the tax deductions in Moritz. Similarly, the Indian Criminal Procedure Code allows courts to release on probation men under the age of 21 and women of any age, if not convicted of an offence punishable with death or life imprisonment. While extending the benefit of early release to women under the age of 21, the Code perpetuates the traditional assumption of women being the ‘weaker sex’.

Conundrum of Beneficial Legislation

While mitigating the harms perpetuated by a stereotype is one goal of equality law, remedying structural inequalities and historical disadvantage is another. Several affirmative action measures are designed to meet these ends and confer material benefits on the affected minority. Therefore, it is possible for a measure to be both based on a stereotype and to also be an affirmative action measure. For instance, maternity benefit legislations that entrench the stereotype of women being the sole caregivers would infract the principle. Three possible outcomes could follow from such overlaps. 

First, the application of the anti-stereotyping principle and the need to redress disadvantage may align. In maternity benefit legislation, the removal of the ‘woman as the sole-caregiver’ stereotype through legal recognition of paternity benefits and participative parenting would also remedy the disadvantage faced by women in accessing the labour market.

Second, stereotypical provisions may only purport to remedy structural disadvantages, while in fact failing to do so. In President of South Africa v Hugo, the South African Constitutional Court (“SACC”) upheld a Presidential Act that remitted the sentences of all ‘mothers’ in prison who had children under the age of twelve, which was challenged as discrimination on the basis of gender. The South African Constitution only prohibits unfair discrimination. Speaking for the court on this point, O’Regan J. notes that there is a dual burden of child-rearing and employment on women, and that such inequality is a social fact. This is the structural disadvantage identified by the court. Kriegler J. in his dissent held that there was no nexus between this disadvantage and the remission of sentences. Although O’Regan and Kriegler J. both agreed that the Act was based on a stereotype, O’Regan J. upheld the Act because it addressed this social fact of inequality and had no discriminatory impact.

We agree with Kriegler J. here. The ‘purported’ goal of the policy was addressing a structural disadvantage, however, a mere remission of sentences does not alter the social fact identified by O’Regan J. This is because responsibility for raising children presumably still remained primarily on women once pardoned, thereby maintaining their position in the household. Therefore, the purported benefit does not justify the perpetuation of a stereotype and excuse its impact, because there is no gendered disadvantage remedied.

Finally, the anti-stereotyping principle may conflict with the need to remedy disadvantage. Sex-based segregation of washrooms, for one, relies on the idea of ‘natural or inherent differences’ between men and women. Strictly applying the anti-stereotyping principle would not allow for separate washrooms on this basis. However, such separation may, in fact, be justified because of privacy and safety issues that exist in many jurisdictions.

Similarly, if the CJEU in Lommers had applied the anti-stereotyping principle it would have had to uphold the parental rights of a working father, to dismantle a powerful stereotype. However, the Court recognised that only a limited number of creche facilities were available and that women were under-represented in the workforce. Hence, it prioritised enabling working mothers’ access to the labour market. This was not a case of non-identification of a stereotype or of the court endorsing a stereotype — rather the structural change the policy aimed to address was given more weight in this instance than the impact of the stereotype.

In our opinion, these cases demonstrate that treating the anti-stereotyping principle as a bright-line rule could result in outcomes that may not always serve the objectives of equality law. A law or policy should not be struck down simply because it maintains a stereotype. Rather, there ought to be a ‘balancing’ approach, taking into account, for instance, whether and how the relevant law or policy might be addressing one of the other objectives of equality law such as effecting structural change or accommodating difference. For instance, the practice of wearing a burqa by Muslim women. An approach of 'balancing' the varied objectives of discrimination law must be adopted. The burqa may reinforce gender and religious stereotypes about the role of women, but must be protected under equality to achieve the goals of respecting their autonomy and accommodating diversity.

Conclusion

Successfully applying the anti-stereotyping principle depends on the ability of courts to identify and name a stereotype. Ordinarily, a law or policy perpetuating a stereotype (as in Micheal M) should be struck down by courts, because of the harms inherent in maintaining stereotypes. However, the anti-stereotyping principle exists within a broader substantive equality and constitutional rights framework. Therefore, this principle should be balanced with other equality law considerations.

With numerous stereotypes governing human behaviour, this principle will consistently be reshaped in each case. This is true in India, where development of the principle is in nascent stages, but also in jurisdictions with evolving dilemmas in discrimination law – like the United States. 

Unnati Ghia is a final year law student at National Law School of India University, Bangalore. Dhruva Gandhi is an advocate at the Bombay High Court.

Suggested Citation: Unnati Ghia and Dhruva Gandhi, ‘The Anti-Stereotyping Principle: A Conundrum in Comparative Constitutional Law’ IACL-AIDC Blog (5 May 2020) https://blog-iacl-aidc.org/2020-posts/2020/5/5/the-anti-stereotyping-principle-a-conundrum-in-comparative-constitutional-law