Gender and Law

Several recent news stories related to "gender" are worth noting: First, on June 4, the Legislative Yuan passed the Gender Equity Education Act on its third reading, which explicitly guarantees the right to education for unwed pregnant students, establishes campus sexual harassment handling mechanisms, and strengthens gender equity education in schools. Second, Executive Yuan Premier Yu recently urged the public amid record-low birth rates that "loving Taiwan means having more children," yet public opinion was unimpressed, arguing instead that the formulation of national laws and policies fails to provide an optimal environment for Taiwanese women to raise children. Third, a female employee surnamed Ch'iu, who happily applied for a two-year parental leave from Amway two years ago in accordance with the Act on Gender Equality in Employment, broke into tears at a press conference after her recent application for reinstatement was rejected by the company.

Behind these news stories, it seems that people are hoping to use the means of "law" to achieve certain gender-related policy objectives. In fact, whether based on the requirement of "gender equality" under Article 7 of our Constitution or current global trends, research on "gender and law" and "feminist jurisprudence" has not only become another prominent academic field, but is also increasingly able to influence the formulation and implementation of national policies. In other words, unlike early "theories" such as "liberal feminism," "difference feminism," and the "Dominate Theory" proposed by Dr. C. MacKinnon in the 1970s, contemporary feminist jurisprudence is now capable of concretely driving the trend of "gender mainstreaming," advocating that the implementation of all national laws and policies should consider the issue of gender equality, and even that dedicated institutions such as a Ministry of Gender Equality or a Gender Equality Committee should be established to monitor, evaluate, and assist in planning the policies of various ministries from the perspective of gender equality.

Domestically, thanks to the years of efforts by women's movement groups, the concepts of "gender equality" and "gender mainstreaming" have gradually gained attention from the executive and legislative departments as well as the private sector. Taking the Act on Gender Equality in Employment passed in 2002 as an example, it is the country's first law promoting gender equality in the "workplace." In addition, the Gender Equity Education Act just passed in June of this year (2004) hopes to make "campuses" gender-friendly environments through teacher training, textbook compilation, and the investment of school resources. It is worth noting that in a mere span of over two years, the gender consciousness within the Act on Gender Equality in Employment and the Gender Equity Education Act has already shown differences. Taking the recent Gender Equity Education Act as an example, it repeatedly mentions that "schools shall respect the gender traits and sexual orientations of students, faculty, and staff" (Article 12), that "schools shall not discriminate based on gender or sexual orientation in student admissions and enrollment permissions" (Article 13), and that "teaching materials should present diverse gender perspectives" (Article 18). This demonstrates that the focus of the Act is no longer limited to "binary gender issues," but rather emphasizes the value of "gender diversity." That is to say, beyond the traditional biological distinction between male and female, other gender expressions such as gentle men, tomboys, and gay or lesbian individuals should all receive legal protection and social respect. Based on this point alone, it is already a major breakthrough for our laws. As for whether the government can soon establish a "Gender Equality Committee" to further formulate more laws protecting "gender minorities" (where "minorities" refers not to population size, but to the distribution of economic resources and political power), it still remains to be seen.

Of course, achieving substantive gender equality cannot rely solely on legal means; otherwise, the aforementioned "Amway employee incident" would not have happened. Therefore, how to combine the formulation of legal policy with social movements moving forward is perhaps truly the most pragmatic approach. In fact, research by the Organisation for Economic Co-operation and Development (OECD) also shows that creating a gender-equal work environment and social consensus is the most effective way to increase the birth rate. If Taiwan can achieve this, why would the government need to worry about citizens being unwilling to have children?

※ Published in: 2004-6-18 / China Times