Sex and Gender

The double burden or second shift, the situation of a woman in paid employment who also performs the greater part of unpaid domestic and care work.

Gender as stratification

Gender satisfies every characteristic of stratification listed in [Social Stratification], and organising the answer that way is efficient.

Unequal distribution of rewards. Income, property, authority and prestige are unequally distributed by gender in every society studied.

Unequal life chances. In parts of India this extends to survival itself: the child sex ratio and the sex ratio at birth recorded in the Census of India have been adverse to girls, which is the demographic evidence of discrimination operating before birth and in early childhood. Figures should be attributed to the Census or to the Sample Registration System rather than recalled.

Supported by beliefs. Gender ideology, expressed as claims about natural aptitudes and proper roles, performs exactly the justifying function that ritual ideology performs for caste.

Transmitted across generations, through socialisation in the family.

Cross-cuts every other dimension. A woman's position depends on her caste, class, religion and region as well as on her gender, which is the point of intersectionality.

The areas in which it operates

The household. The division of domestic and care work. India's own Time Use Survey shows women performing very much more unpaid domestic and care work than men, including where both are employed, and it is a safe and attributable figure to cite by name.

Paid work. Lower participation; concentration in particular occupations, described as occupational segregation; a gap in earnings; and under-representation in senior positions. India's female labour force participation is low by international standards and did not rise with female education for a considerable period, which is a documented puzzle with several competing explanations and should be presented as contested.

Property. Inheritance in practice, notwithstanding the Hindu Succession Act 1956 as amended in 2005, which made daughters coparceners by birth. The gap between the legal right and its exercise is discussed in [Property].

Education. The gap in enrolment at the primary stage has narrowed very substantially, and differences persist in retention, in subject choice and at higher levels.

Politics and public life. Under-representation in legislatures and in senior administrative and judicial positions. Reservation for women in panchayats and municipalities was introduced by the Seventy-third and Seventy-fourth Amendments, and the Constitution (One Hundred and Sixth Amendment) Act 2023 provides for reservation of seats for women in the House of the People and in State Legislative Assemblies, to take effect after a census and delimitation.

Violence. Domestic violence, dowry-related offences, sexual offences and harassment at the workplace. India's National Crime Records Bureau publishes annual figures, and the caution in [Changing Patterns of the Family] applies: a rise in recorded figures may reflect increased reporting as well as increased incidence, and both are real changes.

The theoretical perspectives on gender

Functionalist. Parsons argued that the family works efficiently through role differentiation, with an instrumental role oriented to the world outside and an expressive role oriented to the family's internal relations, allocated by sex. The criticism, which must be given, is that this describes one historical arrangement as though it were functionally necessary, ignores the power in the allocation, and cannot explain why the expressive role carries less reward.

Conflict and Marxist. Gender inequality arises with private property and the requirement of legitimate heirs, which is Engels's argument in [Theories of the Origin of the Family]; and women's unpaid domestic labour subsidises the economy by reproducing the workforce at no cost to the employer.

Feminist perspectives, which should be distinguished rather than lumped together. Liberal feminism seeks equality through law, education and the removal of formal discrimination. Marxist and socialist feminism locates the cause in the economic system and in the relation between capitalism and unpaid domestic labour. Radical feminism locates it in patriarchy as a system in its own right, not derived from the economy. Postmodern and difference feminism questions whether women constitute a single category at all, given the differences of class, caste, race and nation between them.

Symbolic interactionist. Gender is produced continuously in interaction: it is something people do in every encounter, through speech, dress, posture and deference, rather than something they simply have. West and Zimmerman's account of doing gender is the reference.

The Indian legal response, in outline

Worth a short section for this audience: the prohibition of discrimination on grounds of sex, with the express saving permitting special provision for women and children; equality of opportunity in public employment; the Directive Principles on equal pay for equal work and on just and humane conditions of work and maternity relief; the Dowry Prohibition Act 1961; the Equal Remuneration provisions, now subsumed in the Code on Wages 2019; the Maternity Benefit Act 1961 as amended in 2017; the Protection of Women from Domestic Violence Act 2005; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013; and the reservation provisions noted above.

The sociological observation to make about that list is the one from [Law and Social Change]: the legal position has changed far faster than the social position, and the gap between them is the subject, not a failure of the list.

A worked example

Two candidates of equal qualification apply for a post that requires travel and irregular hours.

Formally, sex is irrelevant and discrimination on that ground is prohibited.

Sociologically, several things are happening. The job was designed around an employee with no domestic responsibilities, which is a person whose domestic work is done by someone else. The woman candidate is asked, or is not asked but is assumed to be, about family commitments. Her prior work history contains a break, which the process reads as a gap rather than as care work. The panel is composed of people whose picture of the role was formed by watching men perform it, so the qualities they recognise as suitable are the ones they have seen. And the informal networks through which the vacancy circulated were largely male, so the pool itself was shaped before any decision was made.

Not one of those steps requires anybody to intend to discriminate, and this is the chapter's most useful proposition for a law student: a rule prohibiting discriminatory intent does not reach a process that produces unequal outcomes without it. That is why the law has moved towards addressing conditions of work, care responsibilities and representation rather than only prohibiting acts of discrimination.

Quick revision

1. Sex is biological; gender is the socially constructed roles and expectations built on it, learned through socialisation.
2. Evidence that gender is social: cross-cultural variation (Mead), historical change, the observable process of learning, and societies recognising more than two categories.
3. Vocabulary: gender roles, gender identity, stereotypes, patriarchy (Walby's several structures), the sexual division of labour, the double burden.
4. Gender is stratification: unequal rewards, unequal life chances including survival, justified by ideology, transmitted across generations, and cutting across caste and class (intersectionality).
5. Areas: household work (Time Use Survey), paid work and low female labour force participation, property (Hindu Succession Act 1956, amended 2005), education, politics (panchayat reservation; the One Hundred and Sixth Amendment 2023), and violence.
6. Perspectives: functionalist (Parsons's instrumental and expressive roles, and its criticism), conflict (Engels; unpaid domestic labour), feminist (liberal, Marxist and socialist, radical, postmodern), interactionist (doing gender).
7. A prohibition on discriminatory intent does not reach a process that produces unequal outcomes without any intent.

Test yourself

1. Distinguish sex from gender and give the evidence for the distinction. Sex is the biological and physiological classification assigned at birth; gender is the set of socially constructed roles, expectations and attributes a society considers appropriate to persons of a given sex, acquired through socialisation. The evidence is that sex is largely constant across societies while gender varies enormously: what counts as men's and women's work differs completely between cultures, occupations change gender within a single society in a generation, children are observably taught gender expectations, and several societies recognise categories the twofold division does not accommodate.

2. What is patriarchy, and why is Walby's account useful? A system of social arrangements in which men hold predominant authority in the family, the economy, politics and culture, and in which property and descent generally run through men. Walby's account is useful because it analyses patriarchy into several distinct structures, the household, paid work, the state, violence, sexuality and cultural institutions, which explains why substantial change in one area, such as education or formal legal rights, may leave others largely untouched.

3. In what sense is gender a system of stratification? In every sense the concept requires. Rewards of income, property, authority and prestige are unequally distributed by gender; life chances differ, in parts of India to the point of affecting survival, as the recorded sex ratio at birth shows; the inequality is justified by a supporting ideology of natural aptitudes and proper roles; it is transmitted across generations through socialisation in the family; and it cuts across caste and class, so that a person's position depends on their location on several dimensions at once.

4. Give the functionalist account of gender roles and the criticism of it. Parsons argued that the family operates efficiently through role differentiation, an instrumental role oriented to the world outside and an expressive role oriented to relations within the family, allocated by sex. The criticism is that this presents one historical arrangement as though it were functionally necessary, disregards the power exercised in making the allocation, offers no account of why the expressive role carries markedly less reward, and cannot explain the wide variation in the sexual division of labour between societies.

5. Why may a prohibition on discrimination fail to produce equality? Because unequal outcomes are produced by processes that require no discriminatory intent. Posts are designed around an employee whose domestic work is done by someone else; career breaks for care are read as gaps; selectors recognise as suitable the qualities they have seen in those who previously held the role; and vacancies circulate through networks that are themselves unequal. A rule addressed to intentional acts does not reach any of these, which is why legal attention has shifted towards conditions of work, care responsibilities and representation.