Zimbabwe Human Rights NGO Forum Special Report Gender and Constitutional Issues Chapter 2 The Current Constitutional Position Sex and gender The women’s movement in Zimbabwe has worked long and hard to publicise the distinction between sex and gender. To judge by the constitutional confusion discussed below, it has not succeeded very well. So let us remind ourselves of the difference between them. Sex is an anatomical and physiological fact. With few exceptions, people are born male or female. Gender is a construction by society of the social differences between the male and female sexes. The social construction of gendered roles differs from one society to the next. What is traditionally ‘men’s work’ in one system may be ‘women’s work’ in another. For example, Zulu women are not supposed to handle livestock and therefore they are not supposed to be involved in ox-ploughing. In Zimbabwe, mixed-sex and all-women teams have competed in public ox-ploughing contests for at least three decades. In respect of women’s human rights, the distinction between sex and gender is absolutely critical. To allow discrimination on the basis of sex while prohibiting gender discrimination would allow women to be discriminated against on the basis of menstruation and pregnancy, child-bearing and lactation, for these are anatomical and physiological matters of sex. But to outlaw sex discrimination while permitting gender discrimination would allow women (and men) to be excluded from the workforce as well as specific jobs, on grounds of ‘tradition’ and past practice. Gender discrimination already practised in our society is based on ideas such as - women are not careeroriented because they get married and devote themselves to bringing up children; men are ‘naturally’ suited to leadership while women are ‘naturally’ suited to ‘caring’ jobs such as nursing; women make the best infant school teachers while men should teach adolescents in secondary school because they can ‘maintain order’ in classrooms; women can’t do mathematics or engineering and men can’t cook sadza. And so on. We are all too familiar with these and many other stereotypes which underpin gender discrimination. They have nothing to do with the anatomy or physiology of sexual difference, but arise from socio-cultural experiences and ideas. The current Constitution of Zimbabwe seems unclear about the distinction between sex and gender. Its drafters appear to have thought sex and gender were interchangeable synonyms. For if they were clear about this distinction, and why both should be prohibited as grounds for discrimination, then one can only conclude that our Constitution has been crafted deliberately to discriminate against women. ‘Discrimination against women’ is defined in Article 1 of the United Nations’ Convention on the Elimination of all forms of Discrimination against Women (CEDAW) as: any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality with men, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. The CEDAW definition of discrimination against women underpins this report. Constitutional protection against sex and/or gender discrimination Until 1996, section 11 of the Constitution, introducing the Declaration of Rights, contained the only reference to sex or gender in the entire document. It began as follows: ‘every person in Zimbabwe is entitled to the fundamental rights and freedoms of the individual, that is to say, the right whatever his race, tribe, place of origin, political opinions, colour, creed or sex …’ 7