Chapter-2

Conceptual Framework of Gender Based Discrimination

2.1 Meaning of gender based discrimination

Discrimination against an individual because of gender identity, including
transgender status, or because of sexual orientation is called gender discrimination.
It points out towards discrimination occurring due to interaction between sex (as
the biological characteristics of women and men) and their socially constructed
identities, attributes and roles and society’s social and cultural meaning for
biological differences between women and men. It is one of the most common
forms of discrimination prevalent in the world and has its long found history in
Nepal as well. It is also termed as sexism in some contexts. However, gender
discrimination may encompass sexism, and is discrimination towards people based
on their gender identity or their gender or sex differences. Gender discrimination is
especially defined in terms of workplace inequality and deprivation of facilities. It
can affect anyone, but it primarily affects women and girls. Because of gender
discrimination, girls and women do not have the same opportunities as boys and
men for education, meaningful careers, political influence, and economic
advancement.

The custom of letting a person's gender become a factor when deciding who
receives a job, promotion, benefit, priority has been practiced since a long time.
When gender is a factor in other decisions about anything, it is gender
discrimination. While most discrimination charges claim that a woman (or women)
was discriminated against in favor of a man (or men), there have also been cases
where males have claimed that they have been discriminated against on the basis of
gender. These cases are usually referred to as "reverse discrimination." However
such cases are very rare and mostly women have been the victims of gender based
discrimination since its prevalence. Despite the introduction and development of
different laws and provisions against gender based discrimination, they have not
proven to be effective due to improper implementation.
2.2 History of gender based discrimination

The history of gender based discrimination dates back to the fifteenth century. The
status of women in ancient Egypt depended on their fathers or husbands, but they
had property rights and were allowed to attend court, including as plaintiffs. [21]
Women of the Anglo-Saxon era were also commonly afforded equal status.
Evidence, however, is lacking to support the idea that many pre-agricultural
societies afforded women a higher status than women today. After the adoption of
agriculture and sedentary cultures, the concept that one gender was inferior to the
other was established; most often this was imposed upon women and girls.
Examples of sexism in the ancient world include written laws preventing women
from participating in the political process; women in ancient Rome could not vote
or hold political office. Another example is scholarly texts that indoctrinate
children in female inferiority; women in ancient China were taught the Confucian
principles that a woman should obey her father in childhood, husband in marriage,
and son in widowhood.

Restrictions on married women's rights were common in Western countries until a

few decades ago: for instance, French married women obtained the right to work
without their husband's permission in 1965, and in West Germany women obtained
this right in 1977. During the Franco era, in Spain, a married woman required her
husband's consent (called permiso marital) for employment, ownership of property
and traveling away from home; the permiso marital was abolished in 1975. In
Australia, until 1983, the passport application of a married woman had to be
authorized by her husband.

Women in parts of the world continue to lose their legal rights in marriage. For
example, Yemeni marriage regulations state that a wife must obey her husband and
must not leave home without his permission. In Iraq, the law allows husbands to
legally "punish" their wives. In the Democratic Republic of Congo, the Family
Code states that the husband is the head of the household; the wife owes her
obedience to her husband; a wife has to live with her husband wherever he chooses
to live; and wives must have their husbands' authorization to bring a case in court
or to initiate other legal proceedings.
Gender has been used, at times, as a tool for discrimination against women in the
political sphere. Women's suffrage was not achieved until 1893, when New
Zealand was the first country to grant women the right to vote. Saudi Arabia was
the most recent country, as of August 2015, to extend the right to vote to women in
2011. Some Western countries allowed women the right to vote only relatively
recently: Swiss women gained the right to vote in federal elections in 1971, and
Appenzell Innerrhoden became the last canton to grant women the right to vote on
local issues (in 1991, when it was forced to do so by the Federal Supreme Court of
Switzerland). French women were granted the right to vote in 1944. In Greece,
women obtained the right to vote in 1952. In Liechtenstein, women obtained the
right to vote in 1984, through the women's suffrage referendum of 1984.

Gender stereotypes are widely held beliefs about the characteristics and behavior
of women and men. Empirical studies have found widely shared cultural beliefs
that men are more socially valued and more competent than women in a number of
activities. Dustin B. Thoman and others (2008) hypothesize that "the socio-cultural
salience of ability versus other components of the gender-math stereotype may
impact women pursuing math". Through the experiment comparing the math
outcomes of women under two various gender-math stereotype components, which
are the ability of math and the effort on math respectively, Thoman and others
found that women’s math performance is more likely to be affected by the negative
ability stereotype, which is influenced by sociocultural beliefs in the United States,
rather than the effort component. As a result of this experiment and the
sociocultural beliefs in the United States, Thoman and others concluded that
individuals' academic outcomes can be affected by the gender-math stereotype
component that is influenced by the sociocultural beliefs

Occupational sexism also has been prevailing as a form of gender based

discrimination since a long period of time. One form of occupational sexism is
wage discrimination. In 2008, the Organisation for Economic Co-operation and
Development (OECD) found that while female employment rates have expanded
and gender employment and wage gaps have narrowed nearly everywhere, on
average women still have 20% less chance to have a job and are paid 17% less than
men.
Historically, Nepali laws have favored men over women. This is gender
discrimination. Men benefit more than women. Until 1963 the Civil Code, which
was the principal law regulating human behavior and property rights, forbade
women from owning property and participating in the same economic and political
activities that men participate in.

In 1963, government officials abolished the former Civil Code and passed a new
one, which brought about significant changes in family and property law and the
legal status of women. The Code set the legal marriage age for women to sixteen,
made polygamy and child marriage illegal, established women's right to divorce
and broadened women's capacity to control or inherit property.

More recently government officials have come to realize that women can play a
more important role then they already do in making decisions regarding family
income, child education, community well-being and the development of the
country as a whole. For this reason, the Nepali government has taken legal steps to
improve the lives of women throughout the country.

In 1990, when the new Constitution was established, the Constitution guaranteed
Nepali women equal rights with men. The Constitution says that there shall be no
discrimination against any citizen in the application of laws, or on the grounds of
religion, caste, race or sex. It also requires that employers pay women equal wages
with men and give women equal access to property. Other laws have also been
passed to provide special provisions for women's education, health and
employment.

Other countries around the world have written and signed contracts promising to
apply equal rights laws for women and men. In 1991, Nepali officials also signed
these contracts, promising to introduce equal rights practices within Nepal. For
instance, the Nepali government approved an international agreement entitled the
United Nations Declaration against Discrimination of Women, which required all
countries who approved the document to do everything they could to limit the
suffering and unfair treatment of women in their countries. The document states
that women, on equal terms with men, have the right to:

 Vote in all the country's elections;

  Be allowed and encouraged to hold public office and work in all levels of
government; and
 Participate in nongovernmental organizations and associations concerned
with the public and political life of the country.

2.3 Situation of gender discrimination in Nepal

Despite significant efforts from the Government of Nepal (GoN), international

agencies, non-governmental organizations and civil society organizations, Nepali
girls and women continue to face major socio-economic discrimination.

According to an article by the State Department (Nepal 2016 Human Rights

Report) “Early and forced marriage, and rape and domestic violence against
women, including dowry-related deaths, remains a serious problem.”

One in four women in Nepal experienced spousal violence in 2016. While that
number is very high, it has declined since 2011 when 32% of women or one in
three experienced spousal violence.Spousal violence in the Terai region is high
compared to other regions. One in three women in the Terai reported spousal
violence. Women in Province 2 (37%) are most likely to experience spousal
physical, sexual, or emotional violence, and those in Province 4 (16%) least likely
to do so. The proportion of women who were employed was only 68% in 2016
compared to 83% in 2006. Women are almost three times more likely than men not
to be paid (52% versus 16%),” according to the demographic and health survey
(PDF) by the Government of Nepal. In 1991, only 17% of Nepali women (15 years
or older) were literate. In 2015, almost 57% of women were literate.

Education is the most important way to empower women. In last quarter century,
women’s literacy rate has increased almost three times. There is still a long way to
go when all women of Nepal will be literate.

In 2017, proportion of seats held by women in national parliament of Nepal was

about 30% like that of in 2016, 2015 and 2014. In 2013, proportion of seats held by
women in Nepal’s national parliament was 33.2%.
Girls and women in Nepal, and especially those living in rural areas, continue to
face discrimination and violence due to the patriarchal culture and their lack of
knowledge and skills, psychological support, and economic opportunities.

In an online article of My Republica, dated 24 October 2016, Ms. Bhagawati

Ghimire (Acting Chairperson of the National Women’s Commission) states
“Gender based violence is an increasing trend. It has been prevalent in society in
the past and continues to thrive in the present day too.” Furthermore she states,
“Women are compelled to tolerate the domestic violence because they aren’t self
dependent. Having no rights over parental property and lacking job opportunities,
women are forced to endure the violence silently.”

The condition of rural women in Nepal is very pathetic. In rural areas, child
marriages are still prevalent. The percentage of literacy among women in rural
areas is almost negligible. The population growth results in the hazards of the
health of the mother and the child. Women are considered inferior to men in
various ethnic groups. The condition as a whole of rural women is more critical
than their counterparts in the urban society where there is more consciousness
among women as regards their social and legal rights. However, in urban Nepalese
women also there is a big gap between the status they enjoy in theory and in
practice. Social attitudes, restrictions on mobility and lack of independent status
are quite evident in urban women also.

It has now been fully realized that the lower status of women hampers the growth
of human beings. The status of Nepali women is legally strong but institutionally
weak. However, in the present day challenges, equal participation of both men and
women is absolutely essential and its importance is being gradually realised by
more and more people in the country. In this context, it is high time for
institutional reforms in the status of women for all-round development. It requires
changes in traditional attitudes.

2.3.1 Forms of gender based discrimination in Nepal

There has been a long found history of gender discrimination in Nepal. Various
forms of discrimination have been prevailing since a long period of time.women
have suffered a lot due such practices of gender discrimination. Different forms of
discrimination relating to gender prevailing in Nepal are as below.

2.3.1.1 Economic inequalities

Occupational distribution

Out of the total paid employees in Nepal, only 26 percent are women. Only 8.3
percent of women in the labor force are paid. Women disproportionally represent
low skill occupations such as craft work and service work because of their high
levels of illiteracy and few years of schooling. Families' gender stereotypes and
cultural norms also shaped women's participation in labor markets. Men
overrepresent employment in occupations that demand more education after
primary school, such as technicians and engineers. Women represent around 12
percent of the population engaged in migrant labor to places like the Gulf and
Malaysia. Their limited mobility to work abroad is a product of historic and
patriarchal ideas that women should remain in the household. The wage gap in
Nepal is stark: women earn 60 percent of what men earn in formal economic
sectors.

Nepal's major economic activity is agriculture, providing a livelihood for over 75

percent of the total population. Unless women work in agriculture, employment
prospects for women in other sectors are limited. Furthermore, in recent years
Nepal has been experiencing a feminization of agriculture. While men are
increasingly moving into nonagricultural work or migrating to urban areas or
outside of Nepal for employment, women are taking over agricultural activities
traditional shared between men and women. Women constitute around 52 percent
of Nepal's total population and around 75 to 80 percent of women are engaged in
agriculture as their primary occupation. Regardless, only a fraction of these women
are paid and the rest are self-employed by working on their families' subsistence
farms.

Although workforce participation for women is low due to religious and traditional
values, more women are entering the workforce because of improvements in
education, later marriages, declining fertility rates, shifts in cultural attitudes
toward women and economic needs.
Unpaid work

Unpaid work means the production of goods or services in a household or

community that are not sold on a market such as child care, caring for the elderly,
and housework. Women outperform men in unpaid work and all forms of labor in
Nepal. On average, women spend four hours a day performing unpaid work, while
men spend less than an hour. Because unpaid work is non-monetary and privatize
labor in the household, it is difficult to quantify the economic contribution of such
work; thus, unpaid work is typically seen as less valuable than paid labor.

Married women are typically more responsible for caring for their husband's
parents than her own. Many Nepali women move in with their husband's parents
after marriage and usually do not have say in the matter. Therefore, sons are
viewed as security for their parents during old age while their wives are viewed as
unpaid care takers. To prepare for their responsibilities after marriage, sons are
then more likely to be sent to school in order to earn money for the future and
daughters stay at home to perform housework. Such patriarchal norms lead to less
female participation in household decision-making processes.

2.3.1.2 Educational inequalities

School enrollment

Gender is the single strongest determinant of school participation among rural

youth in Nepal. Furthermore, education inequality based on gender reflects social
inequality in Nepal. Young girls are more likely to obtain less years of schooling
than boys because their parents view their children's preparation for their adult
marital roles differently based on gender. Women are expected to leave their
families' household for their husbands' after marriage. Additionally, non-
agricultural employment is more common for men than women and cultural
traditions expect more domestic work to be fulfilled by women than men. High
priority to boys' education is also attributed to the fact that girls have less time to
do school work in order to complete their household chores. Girls are more likely
to fail national examination than boys due to a difference in available time to study
outside of class and, ultimately, are less likely to enroll in education after primary
school. Therefore, young girls are less likely to receive a formal education.
Families are also more likely to enroll sons in private schools and enroll daughters
in public schools. It is not surprising then that there are less men who never
attended school (23 percent) compared to women who never attended school (44
percent). UNESCO also found that 50 percent of students in primary school will
drop out before secondary school. High drop out rates for females is mainly caused
by child marriages. Too much schooling for women can also result in less marriage
opportunities.

2.3.1.4 Health inequalities

Healthcare

Barriers to healthcare and service utilization in Nepal are attributed to geographical

accessibility, limited health infrastructure, political instability, lack of resources,
women's low status in society, poor communication system in rural areas and
shortage of trained health professionals. Poor road infrastructure and a lack of
public transportation add addition barriers to health services, especially in rural
areas, because health facilities are concentrated mainly in urban areas.
Expenditures for health care are often in the hands of men or older females, which
may prevent younger women from seeking care for their own health problems.
When medical professionals are available, Nepali husbands may be reluctant to
send their wives for medical services when only a male doctor is available.
Ultimately, women's participation in household decision-making, employment,
influence over their earnings greatly determine health outcomes of women.

Traditionally, mothers-in-law act as primary caretakers of pregnant women.

However, women describe feeling more comfortable in discussing their emotional
and physical health with their husbands over their mothers-in-law. Studies show
that when men participate in health interventions, women's health improves.
Furthermore, research shows that women learn and retrain the most health-related
information, such as family planning, when they are educated with their partners.
2.3.2.4Maternal and reproductive health

Nepali woman with child.

Strong son preference in Nepal affects contraceptive usage, family size, pregnancy
rates, sex distribution of children and birth intervals. Such gender bias leads to sex-
selective abortions, prompting gender inequality and discrimination before birth.
Although the government does provide primary maternal healthcare through health
posts, access and quality are limited because facilities are poorly equipped with
staff that lack adequate training. Access to maternal health is also strongly
determined by household economic status not only because income reflects the
ability to pay for medical services, but also access to transportation and geographic
accessibility. Therefore, a majority of births happen at the home. In addition, child
birth is seen to be a natural process and many women do not regularly seek check-
ups. Thus, high rates of Maternal Mortality are attributed to a lack of skilled birth
attendants, unsafe and unhygienic birthing practices and the absence of emergency
services or safe home births in rural communities. Maternal mortality is also
attributed to a lack of decision-making power, educational awareness, excessive
physical labor and poor nutrition. Nepal had one of the highest maternal mortality
rates in the world; however, the rate has decreased in the past decade by 50
percent. In 2014, the maternal mortality was 258 for every 100,000 births, the
lowest rate ever experienced in Nepal.

Nepal has a high incidence of adolescent pregnancy: 40 percent of married girls

ages 15–19 have already given birth to at least one child. The World Bank found
that half of women ages 15–49 use contraceptives. Many young women in Nepal
lack decision-making power in regards to their sexuality, contraceptive use, and
family size. Most women are unable to use family planning services without
permission of their husbands and families. Sex education is still taboo and not
offered in most schools. Unsafe abortions also contribute to the high maternal
mortality rate in Nepal as abortion was illegal until 2004. Although abortion is now
legal, the social stigma and limited access to safe abortion services impedes
women's maternal and reproductive health.
5.2.3.5Familial inequalities

Decision making in the household

Women's autonomy in household decision-making is less than men's. Such power

to make decisions is associated with women's ethnicity, deprivation level,
urban/rural classification, education, and number of living children. The patriarchal
family structure and religious values explain the unequal decision-making power
between men and women in the household. Many women in Nepal hold the view
that it is in their dharma, their religion, moral duty and universal law, to be
obedient, respectful, and pleasing to their husbands. Women from middle and
richer class as well as women from orthodox Hindu communities are typically
confined to domestic labor and thus have the least decision-making power.
Remote, poor and rural women experience more autonomy in household decision-
making because of their involvement in income generating activities, adding a
significant contribution to family income. Thus, contribution to family income
creates more perceived equality between women and men as equal partners.

Child marriage

Early marriage is a societal norm in Nepal and is reflective of patriarchal values.

Nepal has the third highest rate of childhood marriage in Asia. Disproportionately
affecting women, 40 percent of marriages involve girls 15 years of age. Many
women begin having children before the age of 20, especially in rural areas and the
Terai region. Many young girls in rural areas are married right after puberty and
sometimes before, with sexual activity soon to follow. Parents are largely in
control of their daughters' child marriage and poor families do not want to spend
limited resources on daughters if their daughters cannot provide to the family's
income. Thus, young girls are perceived to be a burden for their parents and sons
are expected to take care of their parents in old age. There is also a culturally value
on virginity; thus, early marriage increases the likelihood that a woman remains
"pure" until marriage. In addition, early marriage is desired for submissive wives
since younger women are more likely to depend on their families. Women largely
do not have say when the marriage is arranged by their parents. However, forms of
marriage are slowly shifting from arranged marriage to "love" marriage with
parental approval.
Early arranged marriage and early childbearing are associated with lower levels of
women's autonomy, access to education and employment opportunities for women
relative to men. Serious health consequences from child marriage include early
pregnancy and pregnancy complications. Young girls forced into child marriages
are also at greater risk of abuse, domestic violence and abandonment.

Although the Constitution of Nepal 2072 outlaws child marriage as a punishable

offense, marriage without consent is not clearly prohibit and many families find
loopholes around the law. The earthquake in 2015 was expected to increase the
number of child marriages because young girls were being raped in makeshift
shelters and families were marrying their daughters to older men as a form of
protection against sexual violence.

2.2.3652.2Legal inequalities

Citizenship

Lot of people in Nepal and considered to be stateless. In order for a child born in
Nepal to become a citizen, both parents must be citizens. Unlike children born to
Nepali fathers and foreign mothers, children born with a Nepali mother married to
a foreign spouse are not granted citizenship. Citizenship is determined by blood;
however, this policy does not provide equal access to citizenship for women who
are migrant workers or victims of human trafficking. These laws disproportional
affects women since there are 900,000 children of single mothers without
citizenship in Nepal compared to 71,000 children of single fathers. However, the
constitution of Nepal 2072 has tries to address such issues but its implementation
has not been proven effective.

Property rights

Land rights and inheritance for women are usually defined in terms of their relation
to men. Although distribution of land is different between caste and ethnic groups,
the overall social norm is for women to not own land. Less than 10 percent of
women own around 5 percent of land throughout Nepal. Additionally, only 11
percent of women have effective control over their property.
2.32.32556.21 Discrimination in workplace

Discrimination in workplace includes hiring, firing, and promotion based on

gender, less payment to women compared to men despite similar job position and
qualification, providing less benefits to women than that of women etc. such
practices are very common in various workplaces. However with the change in
time and development of various laws regarding it, such form of discrimination can
be found to have been decreased.

2.3 Rights of women

Women’s rights are the fundamental human rights that were enshrined by the
United Nations for every human being on the planet nearly 70 years ago. These
rights include the right to live free from violence, slavery, and discrimination; to be
educated; to own property; to vote; and to earn a fair and equal wage.As the now-
famous saying goes, “women’s rights are human rights.” That is to say, women are
entitled to all of these rights. Yet almost everywhere around the world, women and
girls are still denied them, often simply because of their gender.Winning rights for
women is about more than giving opportunities to any individual woman or girl; it
is also about changing how countries and communities work. It involves changing
laws and policies, winning hearts and minds, and investing in strong women’s
organizations and movements.

Women's rights are the rights and entitlements claimed for women and girls
worldwide, and formed the basis for the women's rights movement in the
nineteenth century and feminist movement during the 20th century. In some
countries, these rights are institutionalized or supported by law, local custom, and
behavior, whereas in others they are ignored and suppressed. They differ from
broader notions of human rights through claims of an inherent historical and
traditional bias against the exercise of rights by women and girls, in favor of men
and boys. Issues commonly associated with notions of women's rights include the
right: to bodily integrity and autonomy; to be free from sexual violence; to vote; to
hold public office; to enter into legal contracts; to have equal rights in family law;
to work; to fair wages or equal pay; to have reproductive rights; to own property;
to education.
Generally, claims about women's rights can be classified into several general
categories, with some specific rights applying to several categories.

Economic rights

 right to own and dispose of property

 right to inherit property in her own name and control it; right to designate
who will inherit her property
 right to her own wages and income
 equality of survivor's rights upon the death of a spouse (e.g. how much
property one inherits, whether one has a right to continuation of a spouse's
pension benefits)
 access to jobs, trades, professions
 equality of treatment within jobs, trades, and professions, including
promotions
 equal pay for equal work, equal pay for work of equal value (comparable
worth)
 access to credit in her own name
 equal participation in labor unions
 right to job protection when taking maternity leave

Civil rights

 legal and contract rights

o equality of citizenship (treated as a full adult, equal to males, rather
than as a minor, a slave, or a legal non-entity)
o general equality of rights under the law
o ability to sue in court, to represent one's self
o be a witness in court
o serve on juries
o serve as an attorney
 marriage, divorce and parenthood rights
o married women's legal existence separate from her husband
o marriage rights, including consent to marriage and equal rights and
responsibilities within marriage
o keeping her own name after marriage
 o equality of rights in determining where to live
o divorce rights, including equal ability to initiate divorce and rights to
child custody and property division on the same basis as men
o right to equal guardianship of children during marriage
o right to child custody after divorce or widowhood
 basic civil freedoms
o free speech
o freedom of religion
o freedom to change nationality

Social and cultural rights

 control over her own person

 education - both basic and higher education
o equal access to both basic and higher education
o equal access to educational programs, including sports
 professions open to women, including law, medicine, teaching, theology
 roles in religious institutions, including voice, participation, serving as
clergy
 treatment within the military: roles, promotion, treatment
 moral codes: absence of the "double standard"
 choices regarding roles and responsibilities within the home
 choices regarding roles and responsibilities regarding children
 sexual choices, including sex outside of marriage
 choice regarding family size and reproduction, and methods of controlling:
contraceptives, abortion
 safety from sexual mistreatment, including rape, traffic in women, and
exploitation of prostitutes
 choice of dress

Political rights

 participation in the political sphere, including having a voice and influence

 voting
 running for and serving in political offices
 inheriting titles and rulership in her own name
In the context of Nepal, of part four of “the Constitution of Nepal 2072” sheds
light on the rights of women. Article 38 of the constitution has enlisted following
as the rights of women:

1) Every woman shall have equal lineage right without gender based
discrimination.
2) Every woman shall have the right to safe motherhood and
reproductive health.
3) No woman shall be subjected to physical, mental, sexual,
psychological or other form of violence or exploitation on grounds of
religion, social, cultural tradition, practice or on any other grounds.
Such act shall be punishable by law, and the victim shall have the
right to obtain compensation in accordance with law.
4) Women shall have the right to participate in all bodies of the State on
the basis of the principle of proportional inclusion.

5) Women shall have the right to obtain special opportunity in education,

health, employment and social security, on the basis of positive
discrimination.
6) The spouse shall have the equal right to property and family affairs.