LAW5702 Gender and Inclusive Justice — Unit 1: Introduction of Gender

Unit 1: Introduction of Gender

1.1 Concept of Gender

Sex vs gender (the foundational distinction): the sex (the biological (the birth-assigned (the body’s chromosomal-and-anatomical facts))); the gender (the social (the constructed (the roles-and-expectations (the “masculine-and-feminine” as the society’s script (the learned-and-performed (the changeable: the construction’s good news)))). The concept’s menu (the analytical toolkit): the gender-roles (the division’s script); the gender-identity (the self’s-knowing (the cis-and-trans faces)); the gender-expression (the outward (the presentation’s freedom question)); the stereotypes (the fixed-beliefs (the “women’s-work” lore)); the intersectionality (the Crenshaw’s lens (the gender’s-cross: the caste-class-ethnicity-disability (the Dalit-woman’s doubled-face (the unit’s recurring method)))). The movement’s waves (the exam’s map): the first (the suffrage (the political-rights)); the second (the equality-and-the-personal-is-political); the third (the intersectionality-and-the-global); the fourth (the digital-and-the-metoo era).

1.2 The Philosophical Basis of Rights

1. The natural-rights line: the inherent-and-inalienable (the person’s dignity (the Lockean faces; the UDHR’s Article-1 echo (“born free and equal in dignity and rights”))).
2. The utilitarian face: the greatest-good (the rights-as-the-welfare’s instruments (the critique: the minority’s sacrifice-risk)).
3. The Kantian core: the person-as-end (the never-means-only (the dignity’s formula (the CEDAW-and-the-constitutional echo))).
4. The feminist-jurisprudence’s challenge (the course’s own base): the rights’ critique-from-women (the public-private divide (the home’s exclusion from the rights’ world (the domestic-violence’s invisibility-lore)); the abstract-individual (the “person” as the male-default (the law’s gendered-history)); the difference-vs-equality debate (the sameness-approach (the formal (the “treat-the-same”)) vs the substantive (the difference’s accommodation (the special-protection question))) — the MacKinnon-and-the-Okin faces (the names-only citation); the reconstructive-answer (the rights re-gendered (the substantive-equality’s turn)).
5. The capabilities’ bridge: the Sen-Nussbaum’s face (the functioning’s real-opportunities (the women’s-capabilities list (the Nussbaum’s central-capabilities’ lore)) — the U-LAW5701-U4 companion).

1.3 Concept of Human Rights and Women’s Human Rights

The human rights’ frame: the universal-inherent-indivisible (the three-generations’ classic (the civil-political; the socio-economic; the solidarity faces)). The women’s-human-rights line (the historic correction): the invisibility’s history (the UDHR’s formal-equality + the private-world’s exclusion (the public-private’s critique (1.2’s face))); the convention’s era: the CEDAW 1979 (the women’s own-treaty (the definition-of-discrimination (the Art 1: the effect (the formal-and-substantive)); the state’s triad (the respect-protect-fulfil (the public-and-private actors (the Art 2’s due-diligence face))); the substantive-equality’s architecture (the Art 4’s temporary-special-measures (NOT discrimination — the exam’s classic)); the CEDAW-Committee (the General Recommendations’ depth (the GR-19’s violence-as-discrimination (the 1992-turn))); the OP’s complaints (the individual’s voice); the Vienna-1993 turn: the “women’s rights are human rights” (the conference’s famous claim (the global-movement’s consolidation)); the Beijing-1995 (the platform’s twelve-critical-areas (the DPFA’s frame)); the UNSCR-1325’s line (the women-peace-security (the LAW5503-companion)).

1.4 Concept of Equality, Non-Discrimination and Equity

1. The equality’s three faces (the exam’s core): the formal (the same-treatment (the law’s symmetry (the identical-rules))); the substantive (the outcomes’-equality (the structures’-correction (the difference’s recognition))); the transformative (the relations’-change (the power’s rebalancing (the deepest face))).
2. The non-discrimination’s law: the Art-18’s verified catalogue (the 18(1) equal-before-law; the 18(2) the grounds’ list (the sex-and-the-rest); the 18(3) the state’s non-discrimination + the special-provision proviso (the affirmative’s constitutional hook); the 18(4) equal-remuneration; **the 18(5) the parental-property’s gender-bar)); the CEDAW’s 1-and-2 (the definition-and-the-state’s-duty); the ICESCR’s 2(2)-and-3; the ICCPR’s 2-and-26 (the grounds’-case-law lore).
3. The direct-vs-indirect distinction: the direct (the rule’s face-animus (the “no-women” law)); the indirect (the neutral-rule’s disparate-effect (the height-requirements-and-the-part-time lore (the disparate-impact’s methodology))).
4. The equity (the fairness’s cousin): the equity-vs-equality (the equal-treatment vs the fair-treatment (the needs’-responsiveness (the Aristotle’s proportional lore)); the equity’s operation (the targeted-provision (the 4.1’s bridge to the affirmative-action))).

1.5 Gender Equality and Women’s Rights under the General Human Rights Framework

1. The treaty’s mainstreaming: the ICCPR-and-ICESCR (the equality’s clauses (the HRC’s-and-the-CESCR’s gender-jurisprudence (the ICCPR-GR-28’s integration-face))); the CRC (the girl-child’s face); the CEDAW’s specialisation (1.3’s depth); the CAT’s-and-the-traffic-faces.
2. The interpretation’s turn: the gender-mainstreaming (the Beijing’s methodology (the every-policy’s gender-assessment (the 4.2’s depth))); the due-diligence-standard (the state’s private-violence duty (the Velasquez-Rodriguez-line’s adaptation (the Goebel-era-name citations only))); the intersectionality’s jurisprudence (the committee’s evolving-readings).
3. The constitutional frame: the Art-38’s verified catalogue (the women’s own-article: the equal-lineage; the safe-motherhood-and-reproductive-health; the violence-bar-and-compensation; the proportional-inclusion; the positive-discrimination (the 38(6)’s property-and-family-equality)); the Art-42’s inclusion-list (the gender-and-sexual-minorities’ constitutional presence (the verified text)); the directives’ complement (the 51’s women-faces).
4. The Nepal’s treaty-position: the ratified-set (the CEDAW 1991 (the state’s reports’ cycle); the OP’s status (the honest note: the ratification-record’s citation)); the reservation’s history-and-withdrawals (the CEDAW’s-reservations’ story (the inheritance-era reservations’ later-dropping lore (the honest hedge when citing))).
   The prescribed case (cited verbatim; honest note): Advocate Basundhara Thapa v. Office of Prime Minister, Council of Ministers (NKP 2060 B.S., No. 5/6, D.No. 7217) — the early women’s-rights PIL (read the decision for the precise facts-and-holdings).

Model Questions

1. Distinguish sex from gender and explain gender’s analytical concepts. (10)
2. Explain the philosophical basis of rights and the feminist critique. (15)
3. Discuss the evolution of women’s human rights in the UN framework. (15)
4. Distinguish formal, substantive and transformative equality. (10)
5. Short notes: (a) GR 19; (b) Intersectionality; (c) Art 18(5); (d) Due diligence. (4×5)

📚 Get the complete notes: Download the full Gender and Inclusive Justice PDF (all units) — Law Info Nepal Original Notes Series.