The Issue of Gender and Woman’s Rights
——Including discussion of the legal analyzing method for gender
Guo Huimin
Summary: Using gender as a legal analyzing method is the outcome of international
woman’s rights movement, particularly the feminist jurisprudence movement. When
using gender to examine woman’s rights, one should first need to accomplish the
transitional change of “woman oriented” to “gender oriented”, so that one could then
break through the restriction of discussing woman’s rights within the internal
boundary of women, and the issue could then further include the roles, needs, status
and inter-relationships between male and female. Reversing the activities of
out-casting woman’s rights and admitting sexual equality into the main stream of
development shall not only favor the development of woman’s rights, but also
opening a feasible path for the entire development of human rights. Using gender as a
verifying and measuring method for woman’s rights is an issue worth discussing, we
could borrow the analyzing method of adopting feminist jurisprudence on woman’s
rights, however, China should have its own development path for woman’s rights, and
internationalization and localization are two important paths for development of
Chinese woman’s rights.
Key words: Gender
Woman’s Rights Localization Law
1. Gender – The legal analyzing method for a gendered society
Gender is the key component of a social relationship that base on tangible sexual
differences; it is a way of showing relationship of rights 1. Gender is different from sex;
sex is the natural attributes, ie. it is the in-born biological differences of two sexes.
Gender means the thoughts, attitudes and behavioral pattern caused by the society
based on sexes, it is a social role learned and assumed after birth; it is the difference
that generated by the society ie. the gendered 2. Gender was originally the noun
 ,Faculty of Humanity and Law, North Western Industrial University.
1 An English-Chinese Dictionary on Women and Legal Terms, edited by Sharouk Horn and Xin Chunying, China
Translation and Publishing Corporation, 1995 edition, Pg 145
2 Please refer to Catherine A. Mackinnon’s “Feminism, Marxism, Method, and the State, Toward-Feminist
Jurisprudence”, Journal of Women in Culture and Society 1983, Vol. 8, no. 4.
1
attribution for feminine and masculine in linguistics terms, but was used by the
feminists in differentiating the animal gender and social gender after the 1970s. Just
like mountains, rivers, sun and moon in the natural, the pattern of gender roles of
human beings were attributed femininity and masculinity and were not only
determined after birth but were also molded and generated through culture. M.
Mead, an anthropologist, 3was the first to discover social gender difference. After
carrying out researches on three different types of gender patterns from three
primitive villages, M. Mead first disclosed the sociality of sexes in his book Gender
and Temperament (1935), and said that differences between two sexes are not in the
biological but social facets, and he formally announced that human beings were not
born to be feminine and masculine. Simone De Beauvoir in the Second Sex (1949)
further elaborated that femininity is cultivated by environment.
She deemed that, to
a man, woman is the other person; she is the alternate sex. Man defined woman,
traditionally she is the object in a dual relationship, and is relatively to man as the
subject.
In 1972, Ann Oskley separated the two different concepts of sex and gender
in her book, Sex, Gender & Society. 4 Gayle Rubin brought up the concept of
sex/gender system in the book, The Traffic in Women – Note on the “Political
Economy” of Sex, and deemed that gender system does not belong to economic
system but a type of spontaneous mechanism social human system closely related to
the economic and political economy. 5The core of the concept of gender rests on:
gender is a component formed in the social relationship that base on sexual
differences; gender is the fundamental method in differentiating the relationship of
rights.
The feminist jurisprudence, which was born in the west, is a product of combining
feminism and laws. Someone also call it the “feminist movement of contemporary
laws”; it is an active thought surpassing academic boundary and combining theory
and practices.
….. The discussion of feminist movement of contemporary law starts
from objecting sexual and racial discrimination… and expands onto criticisms of
fundamental knowledge, assumption, method and practices of law.
Not only in
terms of theory and practices that it stretches from fundamental law to all domains of
constitution laws, criminal laws, civil law and legislation of laws, etc., it also brought
3
When gender first enters China, it has been normally translated as gender, and later as social gender, and it has
been translated as “sex attribution” in some of Taiwan’s written works, meaning the social category that the sex
attributed to.
4 Please refer to Relationships of Sex Attribution – Sex and Society, Construction by Wang Yage, Taiwan’s Xin Li
Publisher, 1999, P32
5 Please refer to Selection of Translated Articles on Gender Research edited by Wang Zheng and Du Fangqin, Life.
Reading. New Knowledge San Lian Book Shop, 1998, P21-22
2
impacts to some profound feminism issues. 6The concept of gender has brought
tremendous impacts on feminist jurisprudence, and through the scope of such
exercises, feminist jurisprudence has sharply criticized and changed the gendered in
the law system.
7
Scholars have also carried out counter-reviewing and set up
establishment while criticizing.
People gradually learn that what feminist
jurisprudence needs to criticize is the sexual system and not the male, apart from this,
study of gender requires the participation of male, the progress of woman’s rights is
an inseparable part of the progress of the entire human rights.
As a type of legal analyzing method, gender should consider whether the same laws
could bring the same outcome for both male and female, otherwise such laws would
be deemed unequal, and most probably would become a tool for repeating social
discrimination.
male did.
We know that no female in any country truly enjoy equal rights as
Of course, many countries have stipulated laws in providing legal rights
for women; however, one should not jeopardize legal stipulations with the actual
status and role of women in a gendered society8. Unequal gender structure would
impose a sense of incapability to women, much more so when one is facing
compulsion of a country such as laws. Such incapability is originated from a type of
persisting and traditional social discrimination, feminist calls it “oppression”, though
seems exaggerated, it at least indicates the disadvantage status of the female in
relative comparison with male’s – females are either powerless in laws or values of
their right are being debased.
As the subject of human rights, women are
unavoidably under socialization of the patriarchy system9, making their acceptance as
a social role attributing to man, like a daughter obeying her father.
Gendered society
not only influences female but also male, making the males in undertaking much
heavier social and family responsibilities.
The study on such inner matter of
feminist jurisprudence is comparatively being neglected in the past, feminist scholars
were more concerned about the oppression on female from male, and did not pay
attention to the negative impacts brought to males while females were being
oppressed.
6
Please refer to The Feminism’s Movement in the Contemporary Laws by Chen Shaofen, Law In Time, 2003-6-21
22:31:28
7 The Elaboration and Discussion on American Feminist Jurisprudence, Legal Science by Lv Shilun, Fan Jihai, 1 st
issue, 1998.
8 Gendered society: gendered means influenced by the society, gendered society refers to the roles of male and
female generated by the society. Different societies may gender different male and female behavioral pattern.
Please refer to Women Leisure – Vision of Feminist written by Carla Henderson (American) and translated by Liu
Er, Yunnan People’s Publisher, 2002, P2, P6, foot-note of translation
9 Socialization: Individual biological person that absorb all kinds of cultural factors from the society and grow into
a social person, who has no choice during his/her growing process in adopting social opinions disadvantaged as
his/her own opinions, and rationalized the inequality of the social structure, and gradually adapt to the social
process. The socialization of female is also a gendered process
3
Using gender as a legal analyzing method is the outcome of international woman’s
rights movement, particularly the feminist jurisprudence movement, however, the
issue has currently surpassed the scope for research on women, and became an
analysis method generally used for stipulating and decision- making of laws.
In the
past, the feminism would base on “women oriented”, ie. it would analyze legal
difficulties met by women based on the sexual standpoint of women in order to fight
against the legal viewpoint and methodology of “sexist”, whereas the “gender”
analysis requires putting problems and relationships of both sexes into a wider
cultural background in order to draw understanding; studies on sex have provided
analyzing thoughts on social relationship for both sexes, and they reckon that
differences between both sexes defined by these social relationship represent a type of
power relationship. Jaggar pointed out that current women’s problems and men’s
problems are not completely separated, as in most cases, the life of men and the life of
women are closely connected; whether in public life or private life, man and woman
would influence each other in selection of morality.
10
Zhou Yanling pointed out in her
article Regarding women, Sex and Gender that: the shifting of “women oriented” to
“gender oriented” is the transitional change in modern feminism study.
11
Even the
feminist researchers would also notice that if there were no participation of any man,
it would be impossible to fully learn and effectively change the debased status of
women. At the same time, male would have gender, and would face oppression and
control under the social gendered system. One could effectively review the social
status of women relatively compared to men when gender is focused, and could
dissect the structure of sexes in the relationship of social rights.
Nevertheless, one
should pay attention that “gender” is not the only analysis factor. At the same time,
one should consider the inter-functions among factors like gender and races, clan,
class, sex inclination, age, deformity, etc. when analyzing the status of women and
men.
During 1995’s World Conference on Women, Chinese government has
promised to the world that it will admit sexual equality into the main stream of
decision-making.
In 1997, the Economic and Social Council of the United Nation
further confirmed the importance of gender analysis in decision-making, and has
defined “Admission of sexual equality into the main stream of decision-making” as:
“It is a process for sexual equality to be admitted into the main stream, it would
analyze all plans and actions in all areas at all levels, including legal stipulation,
10
Jaggar A.M (1991) Feminist ethics: Project, problem, prospects in C. Card (Ed.) Feminist ethics (pp. 78-104),
Lawrens KS: University Press of Kanss
11 Please refer to article by Zhou Yanling in Regarding Women, Sex and Gender and Selection of Translated
Articles on Gender Research edited by Wang Zheng and Du Fangqin, Life. Reading. New Knowledge San Lian
Book Shop, 1998
4
policy and project plan that would generate impacts on women and men.
It is a
strategy that include attention, process and action of women and men as a inseparable
part of considerations in designing, executing, tracking, evaluating policies and
projects in all political, economic and social areas, it would benefit both women and
men equally, and the inequality shall not be continued.
gender equality.”
Its ultimate goal is to achieve
Before this, many decision-makings in the United Nation only
concerned about “women”. The transition from “women” to “gender” would cover
women and men, their roles, needs, status and inter-relationships.
Issues from
out-casting women to admitting sexual equality into the development main stream
would focus on decision-making, strategy planning, budgeting and process when
sexual equality is concerned.
12
Currently, “gender” is just like “class” and “race”,
which becomes the fundamental boundary for analysis in sociology and history
studies, and it is widely being utilized in all areas of academic social sciences.
The gender’s positive sense of reform towards unequal sexual system rests on:
since
gender means the group characteristics and behavioral method that belong to women
or men during the formation of social culture, and the understanding of the society of
sexes is that since it is not in-born but from an outcome from social structure, then
sexual oppression and inequality that base on physiological foundation are without
basis, and therefore could be changed and eliminated. To admit gender into laws
would make us see clearer the sexual standpoint of laws in women’s legal issue, the
reappearance of sexual inequality with a “neutral” countenance and the recessive
discrimination of law itself; they would allow laws in taking up the tasks, particularly
the tasks of being the rectifier for gender equality, for the justice of the society in a
real sense.
It should be originated from sex and eventually surpass sex, and
achieving the real legal meaning of “sexless”.
In this sense, gender is a process and means, and not the final goal, when it comes to
the analysis and review on laws. Gender Analysis is to unbind the unequal structure
of the original gendered society, and then to complete the establishment in China
regarding the relationship between gender and laws on a new foundation.
2. The Review of Sex in Woman’s rights
How to define women’s right? This is an issue we have to discuss; otherwise we
12
Gender Equality: Common Goal, The Responsibility of the Whole Society (brief) by Zhang Youyun,
Ex-Director of Sexual Equality Bureau and Beijing Division, International Labor Organization.
www.cef.org.cn/ltzt/ltzt_z1_06.htm - 8k
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would not be able to know what we are talking about.
Woman’s rights should be the
rights of a woman to be a human and such woman’s rights of a female could at least
be divided into three levels:
The rights that women entitled, the legal rights
stipulated for women and the rights of women in real life. Woman’s rights in China
normally are as to the 6 main rights stipulated in The Protection Laws for Woman’s
Rights and Interests, namely the rights in politics, education, work, property, person
and marriage/family. However, when one carefully ponders on them, these are no
rights focus on women, and less to say that they are special rights for women. The
stipulated laws for Chinese women could be divided into two main categories, which
are equal rights with the men and special protection rights for women, these are only
just rights stipulated for women, they are neither the rights pursued by women from
the natural law perspective nor the actual rights in women’s social life.
And
international woman’s rights should be the special human rights for the women;
however, they have not been clearly classified up to this day.
What we have
understood now are just areas related to woman’s rights: such as family violence, job
discrimination, rape, sexual harassment, pornography, childbearing, property rights,
etc. The reason why we see the abovementioned as areas concerning woman’s rights
is because women have already voiced differently on these issues, and also because
these relevant laws could not reflect the wills of women and enfold their experiences.
But we should pay attention that there is a certain kind of risk if we put women as a
sole single context for analysis:
Because it could ignore the variation among women,
it could marred the inner differences among women, particularly the differences in
races, class and sexual inclination, and one should consider such differences.
Following the theory of eliminating the “oriented” in post-modernism and the
development of the third world, the Negro and lesbianism, the concept of “women” is
gradually being questioned, post-structure feminism claimed that women should have
no core recognizable identity, but it should include many types of overlapped social
structure and verbal behaviors. Putting women as a type of category for analysis
indicating refusal of the abovementioned viewpoints, and thinking that women should
posses a series of common, fundamental and history-less characteristics, these
characteristics formed a string of recognizable identities of women.
In such a way,
there is a type of practical dilemma in discussing and addressing woman’s rights:
ignoring differences means the inequality and oppression endorsed by the differences
would continue, using differences as a type of analyzing category could strengthen the
concept of modeling it and reinforce the out-casting status of women.
maintain sufficient alerts on this.
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We should
Nevertheless, we still have to use “women” to categorize female, and “rights and
interests of women are human rights” has become a kind of international consensus.
Generally, human rights can be separated into non-discriminating rights, civil and
political rights, and economic, social and cultural rights; these are what we meant by
the Human Rights for the Three Represents.
For human rights laws to be effectively
applicable to women, one should develop and increase the “post applications” of
gender through re-elaboration of the three types of rights mentioned above in order to
enfold the special characteristics of women being vulnerable to damages from basic
inequality13.
If one achieves this point in practical application, woman’s rights are
just achieving its first step – the rights and interests for women as being human,
however, the rights and interests of women as a female have not been brought to the
agenda. The process for women to fight for their human rights should require some
special methods.
In the article Feminist Legal Methods, Katherine T. Bartlett had brought up a type of
argument for social status after the rational empiricism, standpoint epistemology and
post-modernism: she reckons that it is not across-the-board case that truth has found
its place, that is to say that people discover that they are being restricted by the status
where they are located.
and detailed relationship.
The status of truth comes from the participation of activities
The crucial point of increasing knowledge is in trying hard
in expanding one’s limited visions. Gender is the expansion of the vision of a mono
gender. She thinks that gender reviewing methods on woman’s rights adopted by the
feminist jurisprudence, namely the asking the women questions, feminist practical
reasoning and consciousness-raising14, are trying to disclose the characteristics of
legal cases being easily ignored and depressed by traditional method.
The goal of asking the women question is to discover the specialties of women issue
in the laws, which is also to improve the transparency of women’s legal life, and from
women’s experience to look for special social meaning in laws or practices that seem
to have a neutral or objective presence. Observing how laws neglecting women and
not men should have more typical experiences and values.
In many cases, we would
discover that women’s life do not even have any association with laws, as women’s
life are being trivialized, and laws scorn them, laws seem always being defined as the
13
The International Human Rights Laws for Women: A Progressive Path, edited by Rebecca J Cook (Canada),
Women’s Human Rights – National and International’s Point of Views, by Rebecca J Cook (Canada), translated by
Wang Lie, Chinese Social Science Publisher, September 2001
14 The Legal Method of Feminism by Catherine·Barteric, originally published in Harvard Law Review, the 4th
issue of February 1990 (totally 103 volumes), quote through Selection of Translated Articles on Gender Research
edited by Wang Zheng and Du Fangqin, pg 215 – 245
7
rectifier of the main aspect of social life. This is not only what had been discovered
through foreign women movement, practices of Chinese laws have further proven this
point15.
Feminist practical reasoning stresses on measuring rights actually enjoyed by women
in social life through “laws in practices”, and not just look at what rights that laws
have stipulated for women, this means to look through the superficial surface of laws
in seeking the meaning of sex and the precondition of assumptions in rules and
regulations, and insist that applying those rules and regulations that are not always
placing women in a attributing status, and this also means that one is admitting that
women issue is always related to “laws in practices”. We should pay attention to
laws in the life of women; they should be active laws and not just laws written on
papers. A type of rigid legal analysis shall not assume neutral sex in laws but instead
shall disclose the actual sexual context in laws, and disclose on how it could silently
and without reason fully eliminating the experiences of women being outcasted.
One could not for the reason of an abstract justice and ignore the actual details of
“daily life”, looking for facts from angles of every single body are always more
reliable than using civilized rules, and one should adopt the a deduction method that
bases on cause and outcome so to respect different points of the situation, one should
have more respects to the points of view of a rights-less person. However, actual
deduction method could sometimes individualize the experience of a woman and
neglecting the conformity of the overall experience of women. For example, sexual
harassment could be defined as an individual incident incurs by a woman in China, it
could not be taken as a generalization, therefore we could not understand sexual
harassment happens in a working place, and in actual fact this is a kind of sexual
discrimination.
Consciousness-raising method creates knowledge through telling each other about
respective daily encounters, exploration of experiences and mode.
It shall disclose
individual ravages, and forming a collective experience of oppressions and
disadvantaged situations.
The consciousness-raising group shall start from
elaborating individual experiences in details, it shall integrate experience with theory,
well, in actual fact it is a repackage of theory from one’s experiences and experiences
based on the theory, so that the individual experience is now more political.
15
More
An extreme case is the industrial injury laws have no industrial damage and compensation relief for injured
pregnant women and unborn child. Please refer to The Case Study for Industrial Injury and Damage of
Pregnancy and Unborn Child -- Including Discussion on Sexual Blind Spot and Sexual Discrimination of
Industrial Injury Laws by Guo Huimin, Research Discussion Articles on Women , 4th issue 2004
8
important thing is to reflect appeals of women in their actual life and to relate their
misfortunes incurred in real life into the laws. This would face another problem, will
it further strengthen the rectifying function of laws and weaken the notions of
self-governance of civilian society and rights?
However the purpose of
consciousness-raising is the empowerment of woman’s rights, which means women
still need to re-obtain the rights of self-governance and rights of choices for their lives
and physical body.
The abovementioned methods could be summed up as discovering women’s
secondary class and status in the laws or even in the social life, as well as the
ignorance given to women by the neutral countenance’s appearance in laws and the
disadvantaged outcome that they brought to women.
One should prevent the
possibility of laws repeating the inequality under the name of equality, and review of
gender should require stipulation of laws or justice so that discriminations on women
that have been long resided in the social life could be rectified.
The reviews of
laws in practices require laws to surpass a formality mode of equality and achieve
equality in a true, sexless and equal sense.
As the legal methods for feminism, those points mentioned above are in actual fact
useful, and they have partially received attestations in practices of Chinese laws,
however, they were too much confined under “women” and not “gender”.
The
review and discussion of sex issue in woman’s rights should be just restricted in the
inner part of women, the outcome will definitely outcast women’s right from the
framework of international and domestic human rights, one should compare it with
the man’s and that it should be admitted to the reviews in the main stream of
decision-making. The “human” in the human rights that “women” trying to be in
line with are in actual fact “men”, and consideration of “sex” could be a different and
double standards of human rights, which maximizes the rights and interests with
similarity and difference of both sexes.
3. The Internationalization and localization of woman’s rights.
We should first put the woman’s rights into the framework of laws for international
human rights to capture a better understanding.
As a part of international human
rights, domestic woman’s rights should consider meeting up with practices of
international woman’s rights.
But a meeting-up without giving up its own local
characteristics shall be an issue for further discussion; the development of woman’s
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rights should be reviewed under both international and local perceptions.
Let us try
and take Treaty for Eliminating All Discriminations on Women for an example, and
review the actual blockage of realizing international human rights of Chinese women.
First, regarding the notion of the function of laws. China had learned from the west
during its legalization process, and had driven the modernization of legal governance,
for example, the governing notion of using compulsive to non-compulsive governance;
but the value of law in being a tool has always been the most important value pursed
by Chinese laws.
Laws could actually undertake a task of being equal in formality
manner under current situation, and the elimination of all forms of discriminations on
women brought up by the Treaty for Eliminating All Discriminations on Women is a
type of real equality.
equality?
How far is the distance between formality equality and real
Can contemporary Chinese laws undertake the heavy responsibility in
fulfilling such real equality?
Likely we still have a long way to go, otherwise we
could not discuss about meeting up international practices in our woman’s rights, and
for us to submit report to the Treaty for Eliminating All Discriminations on Women of
the United Nation as a treaty participant will always be a difficult matter.
Next are the principles of obligation undertaken by the government, the treaty
participant have to undertake the obligation of being positive in eliminating
discriminations, the realization of equal rights could not rely on passive voluntary, for
example in Sweden, the positive measures in eliminating sexual discrimination in
employment is upon the request of government, and it was realized through
implementing a outcome-reporting method over a fixed period. Discrimination due
to historical reasons and discriminative cultural prejudices require efforts from the
government, and not just only efforts input by women’s organization. So, how could
our country assume the task of eliminating sexual discrimination and other kinds of
discrimination?
Lastly, the non-discriminating principles require laws to carry out reform on culture.
We have to walk further on this point, we are not just focusing on now, but we have to
undertake the rectification of discrimination due to history and existing culture,
including the reform towards traditional culture, and eliminate the cultural foundation
that had caused women to receive unequal treatment for a long while. Should laws
be conforming or should it be adjusting, reforming?
strengthened to undertake such heavy task?
discriminative culture?
10
Have the existing laws been
How far could laws rectify the
Challenge should be all-sided, but it is not enough just to have challenge.
In order to
achieve the goal in eliminating all discrimination on women, we still have a long way
to go. However, we still find ourselves difficult to kick-off, as we even have no
legal definition regarding sexual discrimination yet, and we also have no adequate
precedent of the Treaty in China.
One would face such blockage in other treaties too; in fact more vehemence conflicts
could even happen.
The analysis using gender theory within the legal scope in China should avoid the
undesirable astray made by the international women’s movement.
One should
search for suitable localized method in determining theory for local woman’s rights
and interests, borrowing worldwide feminism experience does not mean purely
plugging in the entire western outcome. The borrowing of western theory should
have gone through validation of practices in China. Only in such a way that one
could find the status for Chinese women along both paths of internationalization and
localization, and to establish women’s right theory of China with its unique
experiences and gender researches. And what are the differences between China and
the West?
First, there are lots of differences in Chinese social background and western society.
Under such different backgrounds, how could we select our own promotion method
for feminist jurisprudence or say, the promotion method of law theory on sex and its
respective practices?
For example, the equal rights law cases in America have
pushed forward a form of equality through several generations of women’s efforts,
and earlier on in China there was a stipulated form of equality. We have already set
up constitution laws to protection laws for woman’s rights and interests for a start, and
then to the detailed rules and regulations in system of women’s laws. We have
brought up “equality in men and women” from the constitution laws to fundamental
national policies. Although there are many problems in executing equality in men
and women in laws, and there is still no scholar carries out systemic settlement in the
status of women or the status of gender.
But equality has become the notion for
women in the new China, the political ideal, even though empty, of a generation
would become the striving effort of the following generation. What we need to
discover and solve now are actually the inequality under an equal formality, therefore
the works we must do are not quite the same as of the western feminist. What we
11
need to strive for are women’s real rights.
The discovery of women’s local problems
would require local and international points of views. Do those Chinese problems
observe by foreign scholars or movement specialist also the problems in the view of
Chinese scholars?
We might have to construct our own problem.
For example, the
problem of family violence, if there were just external push and no discovery of local
problem, there would be no formation of jurisdiction for interference practices.
Next, how could one discover the impacts from gendered society towards Chinese
laws?
How could one discover the differences in appeal from both sexes? There are
huge differences even among women from case to case, how could we integrate
drives by individual cases and drives by jurisdiction? What is the relationship between
woman’s rights and interests individual case and drive by jurisdiction? Under a
law-stipulating and law-making type of system, solving conflicts generated by the
generalization of laws, across-the-board type agreement and multiple forms of
women’s appeals are hot-potato issues difficult to address. How to conform different
kinds of wills from different kinds of women into the laws, and who should represent
such conformity? Who has the rights to represent? We are facing difficulties in
searching different kinds of wills in both sexes, particularly the difficulties in the wills
of women. Our jurisdiction system is a centralized and with two poles, multi-level
type of system.
Under such jurisdiction system, all of our promotions would
eventually become jurisdictional drives, before striving of real rights.
Our most
important goal should be promoting jurisdiction of human rights for the entire China.
If we compare ourselves with America, we have many differences, the entire
American feminist jurisprudence is built through practices of a type of movement, it is
built through discovery of problems cases after cases, thus different precedents are
established, and are finally being upgraded to principles of jurisdiction, and then the
movement participant and research would corporate in building up theories. Persons
involved has various types of choices, they could select some suitable precedents
from a huge pile of precedents, and could make a choice when facing suitability in
laws, but one is unable to select this precedent or that precedent in China, normally
there is also not much choices in selecting a case that could apply to the laws. How
could one discover the common appeal of women for jurisdiction? Female is a
complex concept. Post-modernism laws have damaged the integrity of women, as
there are many levels within the inner part of women, which is the representing matter
on women’s appeals? Do you use female elites to replace male elites?
Next is that, the relationship between men and women in China, the transition of
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“women oriented” to “gender oriented”, we should pay more attention to the
relationship with men.
The confrontation between men and women in Chinese
history was not as acute as what happened in the west, a “harmonious Ying and Yang”
has always been a kind of cultural ideal, even it was built on the basis of men being
superior and women inferior, there still consist a certain kind of “mellow”
characteristic in Chinese culture itself. No matter with what motive, China is unique
for having phenomenon of its women issue was first brought up by modern educated
men. During the war era and nation building period in China, men and women have
already built the foundation of some kind of corporation, even though such
corporation was in the expense of scarifying “sex” for the females16. During the
process of feminism movement in the West, feminism had given others a kind of
image that they had made a large piece of cake together with men, but men later took
the cake away, the feminist then now takes a knife and demand for cutting the cake.
However, it is not the same in China, men have carried out reform and been awaken
earlier, irregardless of how the awaken consciousness status is, we still can say that
women and women in China have built an aligned relationship, even it is a superficial
one, during the battle or construction.
Even though this could be an unequal
alignment, and of course we still have to carry out further and deeper analysis on this
relationship.
At least sexual analysis has once again bonded us in combining
attentions and solutions for woman’s rights and men’s human rights, and finally the
entire human rights.
To admit the Chinese laws for woman’s rights and interests into the review of gender
is allowing a space of counter-thoughts for our current laws through marking
“neutral” as the sexual standpoint, and it is also for the reason that we do not want to
simply imply the existing outcomes of the western feminist laws, we would like to
discover the local problems in sex and laws, and we would like to find out practical
measures to improve the woman’s rights and interests in our country and to explore
our experiences. Chinese laws are guided and led by Marxism; they are based on
rank analysis method, and are stressed on the impacts of economic foundation on laws.
16
Many researches in China have touched on this problem, The Research of War and Women by Li Xiaojiang and
etc., and some educated women during the Cultural Revolution and other researches all feed back on this point that,
for women to participate in the society or the expense of revolution is that such women would become pretended
guy, and therefore they would try their very best to disguise their feminine characteristics so to be as much like the
man as better. During the Mao Zhedong era, slogans like “one should not like the colorful dressing but love
military dressing” and “time has changed, men are the same as women. What man can do, woman can too” were
advocated. However, the liberation of women by male’s standard did not challenge the cultural attitude and
standard of value in the superiority of male and inferiority of female in a deeper level. The outcome is that,
female had marched into the world of male, but could not change the gender class and its value in this masculine
world; social resources and power still being control by male, knowledge-base production is even the least in
incorporating the life and experiences of female, the superficial sort of equality with characteristics of scarifying
women covered the fact of inequality.
13
The will of laws demonstrates a widely demotic and obvious class-conscious
integration, but it involves no sex, the precondition of legal assumption is that both
men and women are equal citizen, only when all of them are treated the same, then the
goal of being equally fair in front of laws could be achieved. Although “most of the
national theory of feminism are originated from Marxism and Socialism”17, but the
feminists also think that the socialism structure that was centered on class of Marxism
could not explain adequately about the sexual class system and the functions of nation
and laws within it. The social status is not only decided by production method, at
the same time it is also decided by other factors, such as race, ethic, etc., sexual
oppression that are not only existed in capitalism society but are also perforates in
development phases of all societies and all classes of societies.
18
As a social
classification theory, gender would not exclude analysis of class but would integrate
with it for overall reviewing. Due to the length of this dissertation, I could only
consider women as a singularity subject without inner classification, just like the
jurisdiction of the country though with class basis but does not separate the different
rights and interests of different classes or levels.
4. The re-survey of targets of women’s human rights
The target of women’s human rights are no longer an issue, however, when one
carefully thinks about it, it is still comparatively vague.
The focus of the issue is the target of women’s human rights is to realize the equality
as the same as men’s standard, or whether there is another target, or whether it is a
kind of ideal liberal status through selection of full opportunities upon which men and
women had fully developed. One of the questions we were frequently asked is also
“what would women want?” or “what would women want at the end of it?”
During the early period of the development of woman’s rights, one had already
brought up the target of equality of man and woman; however, it has fallen into a trap.
As equality is a concept difficult to define, just as what Rosalyn·Levine,
Attorney
General of the Province of Ontario, Canada has mentioned: “The real context of
equality in the progressive process is development, equality has accumulating and
interconnecting quality, and it would sustain.
17
But what causes the disadvantaged
Please refer to Feminism and the State by Deborah L. Rhode (Professor of Law, Stanford University, Harvard
Law Review Volume 1, 1994
18 The Elaboration and Discussion on American Feminist Jurisprudence, Legal Science by Lv Shilun, Fan Jihai,
Volume 1, 1998
14
discrimination would depend on time, information, experiences and observation.”
19
Article 48.1 of the Constitution Laws has defined the equality of man and woman:
The women of the People’s Republic of China enjoy the equal rights and interests as
man in political, economic, cultural, social and family life, etc.
In the Protection
Laws for Woman’s Rights and Interests, six rights and interests were stipulated,
namely the political rights, cultural and educational rights and interests, employment
rights and interests, property rights and interests, personal rights, marriage and family
rights and interests. The phrase of “woman shall enjoy equally as man in…” are
attached to in front of all the word “rights”. This is different from the “man and
woman shall enjoy equality in…” that has been elaborating quality in man and
woman in most of the countries, the latter said that men and women have adopted an
objective standard as common standard; but in the jurisdiction of our country,
obviously the rights of men are obviously prior women, and they are indeed standard
for men.
This is the legal expression base on standard of men’s standard for
liberation of women in Chinese history. Then, why the contemporary jurisdiction of
China would define equality base on men’s standard?
Perhaps it covers the
following meanings:
First, it is due to the tradition of revolution and women’s liberation in China. Since
Jin Tianxiang, the revolutionary in late Qing Dynasty published The Female Clock in
1903, had started the adoption of “active thoughts, with masculinity” as standards for
“new woman”, it had broken the standards of being a gentle wife and a good mother
as set in the traditional Confucius teachings, it greatly advocates that women should
enter the public territory as men do, and shall exert the function of “female citizen”,
and thus forming an important strength for constructing the modern nation. Criteria
of liberation for women that base on men’s mode. Zhou Zuoren had stood on the
standpoint of humanism and criticized “the current mistake is to take men as a
standard” during the 20’s of the 20th century.
In 1931, The Constitution Outline of
The Chinese Soviet Republic claimed that: the political power of Chinese Soviet shall
ensure the downright achievement of liberating women as its target, acknowledging
marriage, implementing various types of methods to protect women, so that women
could gradually be broken away from the bondage of materialistic foundation and
participate in all social economic, political and cultural life.
Perhaps there is
difference between man and woman in terms of revolution, one would be earlier and
19
The Method of Canada’s Treatment to Equal Rights and Court’s Sexual Equality by Catherine· E· Mahony,
Women’s human rights – National and International Vision, edited by Rebecca·J·Cook (Canada), translated by
Wang Lie, Chinese Social Science Publisher, September 2001
15
the other later, the women liberation that is based on men’s standard has continued
since.
20
Just because the standard of “rights” is for men, therefore, irregardless of
laws or Chinese revolutionary history, when it comes to the equality of men and
women in China, the expense of women movement, which is a part of nation
movement, is to adopt men’s standard as standard and hence scarifying special
characteristics of the women.
Second, the subsequence happening of woman’s rights had decided men’s role as a
direction indicator or the “standard human”, indicating that men are superior and
handing out to women. There is a kind of inequality reflecting out of the equality.
However, there are flaws in adopting men’s standard as standard, because the
applicability of men’s criterion is too narrow, and that it could not incorporate the
considerations of special characteristics and differences of women’s life.
For
example, the early stage of liberalism feminist had also tried to obtain the legal
equality based on men’s standard, although they had achieved progress in legal rights,
they had met with problems.
As pregnancy was not deemed as part of the context of
sex, therefore the context of discrimination restricts women’s equality under the same
sexual boundary as men21.
Third, basing on men’s criteria would subtly indicate the “make over” of a secondary
sex, which still be enclosed in a rigid mode of men being initiative and women being
passive. It is a modern version of “rectifying women with men”. Woman is an object
whereby the government manages and controls, and “superior men and inferior
women” is a set of social reality that ties and links to social system and regularities.
In ancient China, family and the country are of the same structure, “family” is the
foundation of “country”, and scholars historically all along have noted the importance
of “woman” in the “family”.
Starting from Zhou Yi, “the proper woman the proper
family” has been stressed on. And regarding “for woman to be proper”, one shall
first have the “right woman”, and the scholars and philosophers shall undertake the
task of “right woman”, many inculcations and rules concerning family as well as
writings of scholars have included large volumes of “how woman should behave
properly”.
In other words, there is a long and sustained “for woman to be proper”
tradition held among Chinese scholars.
22
”For woman to be proper” is a make over
20
Gender and Chinese Modernism, speech by Wang Zheng at the Fudan University, 9 December 2002
The Woman’s rights as Human Rights: Analysis and Actual Application Strategy of Various Theory and
Opinions by Catherine·Mahony. The International Human Rights and Development, From China and Canada’s
Point of View , Edited by Bai Guimei, Law Press China, 1998.
22 Gender and Chinese Modernism, speech by Wang Zheng at the Fudan University, 9 December 2002
21
16
process on women. Using men as the equal standard would just recast women into
human being same as men, if they are not the same, they would face the destiny of
being eliminated.
Forth, there might be possibilities that woman’s rights are limited.
Comparing
women with men, their opportunities of being treated equally being restricted as such,
even women and men have to be the same.
Such comparative standards have
seriously restricted the equal demand of women.
For example, discriminating
pregnancy, rape, sex harassment, wife abuse, prostitution and pornography, etc. have
been excluded from the boundary where equality being considered, man as the
comparator has no need to compare such. There is no other experience with the
same circumstance, therefore there is no legal fundamentals for bringing up complain.
In other words, “woman shall forget about getting things that are not needed by men”.
In terms of women issue, the experience and vision of man have neglected the real
needs of woman, it turns around and cause discrimination with negligence as the
characteristic.
The experience of international women’s movement has proven that:
the word
“equality” has been oppositely interpreted and is frequently being used, even in
international documents, which show miles of differences. Equality would not be
discriminated In the Women’s Treaty – the long-sustained measuring standard for
discrimination against women by men, in other circumstances, equality is the rights to
enjoy possession of rights, and not a type of measurement for men and women to
reach finally.
23
Legal development almost fully against women’s experiences, it has
doubted on the neutrality and objectivity of laws. Although laws never is the only
reason for women to be placed in a disadvantaged status, the power of laws would
define various relationships among oppression and women, and thereon forming the
materialistic foundations for oppression.
24
There exist many deficiencies for the
existing laws to pursue equality. To request for being accepted as sex-disregard status
in order for women to prove that they are the same as men is generally distorted and
unbelievable. At the same time, the vocabulary, knowledge and political theory in our
real life do not include that type equality that truly needed by women.
The equality
by man’s standard in a sense means the equality for women that would not truly
realize. Even it does realize, one still needs correspond protecting mechanism, an
Women’s Human Rights – National and International’s Point of Views, by Rebecca J Cook (Canada), translated
by Wang Lie, China Social Sciences Press, September 2001. P46
24 Feminism: From Pressure to Politics (1989), by Angela R. Miles and Geraldine Finn, translated by the
Resource Center of the Stop DV Project, 18th issue of STOP DV
23
17
equality that lacks protecting mechanism is just a slogan and declaration.
Next, please let us discus about targets realized by woman’s rights.
[ Key references]
1. Regarding Women, Sex and Gender by Zhou Yanling, quoted from Selection of
Translated Articles on Gender Research edited by Du Fangqin, Life. Reading.
New Knowledge San Lian Book Shop, 1998.
2. Gender Equality: Common Goal, The Responsibility of the Whole Society (brief)
by Zhang Youyun, Ex-Director of Sexual Equality Bureau and Beijing Division,
International Labor Organization.
www.cef.org.cn/ltzt/ltzt_z1_06.htm - 8k
3. Catherine A. Mackinnon’s “Feminism, Marxism, Method, and the State,
Toward-Feminist Jurisprudence”, Journal of Women in Culture and Society 1983,
Vol. 8, no. 4.
4. Relationships of Sex Attribution – Sex and Society, Construction by Wang Yage,
Taiwan’s Xin Li Publisher, 1999.
5. Women’s Human Rights – National and International’s Point of Views, by
Rebecca·J·Cook (Canada), translated by Wang Lie, China Social Sciences Press,
September 2001.
6. The Legal Method of Feminism, by Catherine·Barteric, originally published in
Harvard Law Review, the 4th issue of February 1990 (totally 103 volumes), quote
through Selection of Translated Articles on Gender Research edited by Wang
Zheng and Du Fangqin, Life. Reading. New Knowledge San Lian Book Shop,
1998.
7. Feminist and the State, by Deborah L. Rhode, Professor of Law, Stanford
University. Published by Harvard Laws Review, Volume 1, 1994.
8. The Elaboration and Discussion on American Feminist Jurisprudence, Legal
Science by Lv Shilun, Fan Jihai, 1st issue, 1998.
9. The Method of Canada’s Treatment to Equal Rights and Court’s Sexual Equality
18
by Catherine· E· Mahony, Women’s human rights – National and International
Vision, edited by Rebecca·J·Cook (Canada), translated by Wang Lie, Chinese
Social Science Publisher, September 2001.
10. Gender and Chinese Modernism, speech by Wang Zheng at the Fudan University,
9 December 2002.
11. The Woman’s rights as Human Rights: Analysis and Actual Application Strategy
of Various Theory and Opinions by Catherine·Mahony.
International Human
Rights and Development, From China and Canada’s Point of View, edited by Bai
Guimei, Law Press China, 1998.
19