2021/01/16
Dear All,
As the fruit of several hours of
research, here are my preliminary comments re the ‘sex’ and ‘gender’
discussion:
First, it is notable that the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) does not use the term ‘gender’ at all. In Article 1, it defines ‘discrimination’ as “any distinction, exclusion or restriction made on the basis of sex …” In Article 5, it calls for the elimination of prejudices and practices “which are based on the idea of the superiority or inferiority of either of the sexes …” All of its other provisions refer to ‘men’ and ‘women’, avoiding the use of ‘sex’, ‘sexes’ and ‘gender’.
General Recommendation No. 28 of
CEDAW’s Committee on the Elimination of Discrimination against Woman repeatedly
refers to the elimination of all forms of discrimination against women “on the
basis of sex and gender” – thus stressing the distinction between ‘sex’ and
‘gender’ in this context. This distinction is highlighted by the call on states
to take steps to achieve “sex non-discrimination and gender equality in
practice” – i.e., no discrimination on the basis of biological sex, and
equality in respect of gender identity. To clarify this distinction, the report
states as follows:
Although the
Convention only refers to sex-based discrimination, interpreting article 1
together with articles 2 (f) and 5 (a) indicates that the Convention covers
gender-based discrimination against women. The term ‘sex’ here refers to
biological differences between men and women. The term ‘gender’ refers to
socially constructed identities, attributes and roles for women and men and
society’s social and cultural meaning for these biological differences
resulting in hierarchical relationships between women and men and in the distribution
of power and rights favouring men and disadvantaging women.
This subject was helpfully examined by the European Network of Legal Experts in Gender Equality and Non-discrimination, whose report titled Gender Equality Law in Europe was published by the European Commission in January 2019. On page 10 of this report, under the subheading of “Sex/gender/transgender”, it states:
EU law does not provide definitions of the concepts of ‘sex’, ‘gender’ and ‘transgender’, and does not distinguish clearly between sex and gender. Similarly, very few countries define the concepts of ‘sex’, ‘gender’ and/or ‘transgender’ in their legislation. Finland, Montenegro, Romania, Serbia, and Sweden are exceptions. In the Finnish Act on Equality Between Men and Women, a new subsection defines what is meant by gender identity and expression of gender. Article 10 of the Serbian Gender Equality Act defines both sex and gender: ‘sex’ relates to biological features of a person, while ‘gender’ means socially established roles, position and status of women and men in public and private lives from which, due to social, cultural and historic differences, discrimination ensues on the basis of biologically belonging to a sex. Romania recently (2015) introduced definitions of sex and gender, as well as ‘gender stereotypes’ in its Gender Equality Law, whereby gender is understood to mean the combination of roles, behaviours, features and activities that society considers to be appropriate for women and men. In Sweden, the Discrimination Act defines sex as the fact “that someone is a woman or a man.” Maltese law includes definitions of ‘gender expression’ and ‘gender identity’.
In light of
these authorities, I would suggest:
1. Strictly
speaking, 性別 should
be translated as ‘sex’ rather than ‘gender’, even though both terms are
commonly used interchangeably in English-speaking countries, with ‘gender’
having perhaps already become more commonly used than ‘sex’ for indicating
whether one is male or female. [Note: According to Wikipedia, the use of
‘gender’ in place of ‘sex’ as a biological classification can be traced to the
1980s, officially adopted in 1993 when the US Food and Drug Administration
started to use ‘gender’ instead of ‘sex’; however, in 2011, the FDA reversed
its position and began using ‘sex’ as the biological classification and
‘gender’ as “a person’s self representation as male or female, or how that
person is responded to by social institutions based on the individual’s gender
presentation.”]
2. To cover the
situation of those whose biological sex is not definitively male or female, or
who do not identify with their birth sex, or who are undergoing or have
undergone transition, 性別認同 should be translated as ‘gender identity’, since the identification
is more with the construct of gender than with the biological fact of sex. This
also allows for identification as gender neutral.
3. I’d say
that 性別特質 might be translated as either ‘sex trait(s)’ or ‘gender
trait(s)’ since it could refer to trait(s) of either biological sex or gender
construct.
4. 性別歧視 might be
translated as both ‘sex discrimination’ and ‘gender discrimination’ (or
‘sex-based discrimination’ and ‘gender-based discrimination’, as used in the
above-cited General Recommendation No. 28).
5. 性傾向， 性侵害， 性騷擾 and 性霸凌 are
appropriately translated, respectively, as ‘sexual orientation’, ‘sexual
assault’, ‘sexual harassment’ and ‘sexual bullying’, since they refer to sexual
behavior rather than maleness versus femaleness.
6. 任一性別人數（代表）不得少雨三分之一 should
be translated as “Members of each sex shall occupy no less than one third of
the seats of the committee/commission” or “Members of each sex shall constitute
no less than one-third of the membership of the committee/commission.” (Note:
In laws and regulations, 應 and 不得 should
be translated respectively as ‘shall’ and ‘shall not’ rather than ‘should’ or
‘should not’, since they are prescriptive rather than suggestive.)
Peter
2021/01/17
Yenlin to the NAER
I am grateful that you accepted my unruly request for review in your first meeting of 2021 in spite of the fact, as reminded by Jerome, that you usually only review terms, phrases and very specific requests. I have to give Peter my heartfelt gratitude for his research on the legal history of the usage of sex and gender in Europe. His precision in the choice of words is impressive.
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