Compelled Speech: How Supreme Court Is Imposing Woke Ideology & Radical Gender Theory On Our Society
The Supreme Court, last week, released a “Handbook on Combating Gender Stereotypes”. It contains a glossary of gender-unjust terms and suggests alternative words that may be used while drafting pleadings as well as orders and judgments. It also contains in a tabular form, ‘stereotypes’ about women and the corresponding ‘reality’.
While most of the alternative ‘preferred’ words are reasonable suggestions that nobody can be opposed to, some of the ‘stereotype language’ allegedly in use, now sought to be replaced, are almost never used.
Though the Handbook claims that it is meant to combat stereotypes about women, there is a brazen attempt to impose the woke ideology, including the radical gender theory, by coercing people to use certain words.
Biological sex - Sex Assigned at Birth
As per the Handbook, the use of the term “biological sex” or “biological male” or “biological female” promotes stereotypes and the alternative suggested is “sex assigned at birth”.
The attempt is to suggest that assignment of “Sex” at birth to children has nothing to do with Biology. The attempt is also to suggest that “Sex” has no Biological base. The attempt is to equate “Sex” and “Gender”, to suggest that both are social constructs. The brazen attempt is to deny Science.
The Transgender Theory says that Sex and Gender are different and that while Sex is biological, Gender is a social construct. The critics of the theory say that even Gender, to a large extent and some Gender roles, has some basis in Biology and that Gender roles are seen even in the animal kingdom. While the question whether Gender behavior and roles have a basis in Biology is debatable, there is no denying that there is something called “Sex” in Biology, which can be defined in terms of chromosomal makeup, bone structure, genitalia etc. That is eighth-grade Biology.
In fact, the Handbook itself, towards the end states, citing WHO and a Canadian institution, that, “While “sex” refers to the biological attributes of individuals, “gender” refers to socially constructed roles, behaviours, expressions, and identities of girls, women, boys, men, and gender diverse individuals”.
No Biological Man or Woman!
It is not surprising that the Handbook denies Biology, since Chief Justice D Y Chandrachud had famously said in Court during the same-sex marriage case hearing that there is no absolute notion of biological man or woman. Solicitor General Tushar Mehta had then aptly objected to the remark by saying that Biology is not a “question of notion”. (read report)
A child is assigned Sex at birth by Doctors based on objective, scientific parameters and not based on any political theory. To suggest that not just Gender, even Sex has no relation with Biology is an extremely radical and unscientific stand. For the Supreme Court to push such ideology, even through a non-binding Handbook, is totally unacceptable.
Likewise, the Handbook also suggests that the phrase “born a girl or boy” should not be used and that the correct phrase is “assigned female or male at birth”. Again the attempt is to disregard or deny all links between Sex and Biology.
Do Men Menstruate? Of Course!
The Handbook suggests that “feminine hygiene products” is an unacceptable phrase and the correct phrase is “menstrual products”. The reason why the Supreme Court of India decided to ban the phrase “feminine hygiene products” could be either of the following two. It could be that the message is not to link menstruation with hygiene or to avoid the suggestion (there is no such suggestion) that menstruation is unhygienic. Note that Menstrual Hygiene Day is observed worldwide every year on May 28.
The more probable reason, given the ideology at work behind the exercise, is that menstruation is no longer feminine. To say that only females menstruate might reflect “archaic ideas with patriarchal undertones”.
To understand the context, a few days back, Liberal Democrats, the third largest political party in the UK decided to debate a motion that Menstruation is “not just a women’s issue”. A trans man and activist from London, Oscar McGregor, while trying to “tackle period stigma and break the taboo that only women menstruate” recently said, “The whole narrative around the menstruation is very feminine and as someone who doesn’t recognise themselves in this gendered language, it can be a really challenging experience every month”. Many trans women (biological men who identify themselves as women) have announced on social media that they use sanitary products and experience menstrual cramps every month. Watch a viral discussion from the USA about whether only women menstruate- here.
Hence, all the Judges and Lawyers in the Country who hold the archaic, patriarchal, sexist belief that only women menstruate, must read the Supreme Court’s Handbook and educate themselves.
The Handbook advises against using the term “Marriageable age” and suggests using “A woman who has attained the legal age required to marry” instead. Courts often use the term “Marriageable age” in judgments and orders, and Lawyers in pleadings. What exactly is the problem with the phrase is not clear. "Marriageable age" will be used in legal parlance only to denote the minimum age prescribed by law to marry, the age at which the legislature feels a person becomes "marriageable", for whatever reason.
Also, the Handbook suggests the use of the word “Transgender” instead of “Transsexual”. Though the term “transgender person” has been defined in the Transgender Persons (Protection of Rights) Act, 2019, as per the Transgender movement, “Transsexual” is a subsect of “Transgender”.
The Handbook suggests that a person affected by sexual violence should be called a “Survivor” or “Victim” based on the person’s choice. “Both terms are applicable unless the individual has expressed a preference, in which case the individual’s preference should be respected”, the Handbook says. Hence, going forward, every Judge hearing a sexual violence case must first ascertain whether the affected person is a “Survivor” or a “Victim”. Judges cannot ignore the Handbook even if the affected person is not in the party array.
The Supreme Court says that “Unwed Mother” is not an appropriate term to use, and suggests use of the term “Mother”. So, if a Judge wants to refer to the fact that a woman is an unwed mother, in whatever context, he cannot do so.
Even though CJI Chandrachud says in his foreword that the intention is “not to criticise or cast doubt on past judgements” (emphasis added), it cannot be ruled out that a judgment in future is challenged on the ground that the Judge was biased or took the wrong approach since “Stereotype” words, so declared in the Handbook, are used.
Supreme Court, an Expert in Psychology, Sociology & Biology
The Supreme Court has listed out a few “assumptions about the traits of women” and explained why such notions are incorrect.
Some of them are that all women are not physically weaker than all men; women are not more passive; that it is not correct to say that women are warm, kind, and compassionate; that it is incorrect to say that women are more nurturing and better suited to care for other etc.
None of what is stated as “Reality” to counter the “Stereotype” is backed by any citation of credible research. For example, though nobody will say that “all women” are physically weaker than men, Science tells us that men are on average physically stronger than women. The Supreme Court suggesting otherwise is laying groundwork for a dispute that is bound to arise in future, as to whether trans women can participate in women’s sports. In the USA, it is the subject of a raging debate and many States have banned trans women from participating in women’s sports.
Who Authored the Handbook?
The Handbook does not mention the name of its author and no authority has endorsed or authorized it by appending a name or signature to it. It was uploaded on the website of the Supreme Court and its release was announced by Chief Justice Chandrachud in Court.
CJI Chandrachud has written a foreword to the handbook. In his foreword, the CJI states that the Social Justice Sub-Committee of the e-Committee of the Apex Court, comprising Justice Moushumi Bhattacharya of the Calcutta High Court, Justice Prathiba Singh of the Delhi High Court and Professor Jhuma Sen prepared the initial draft. In addition to the officers of the Court who coordinated the publication of the Handbook, the CJI thanks his Law Clerks for their “invaluable contributions to the Handbook”.
Jhuma Sen who was part of the Sub-Committee that prepared the initial draft is an Adjunct Faculty at the NUJS, Kolkata. She is a former junior of Indira Jaising. Her political views are expressed by her clearly on social media. Here are some instances:-
She says that Home Minister Amit Shah is all about killing in the name of idol. She says, “BJP/RSS/Modi is not the illness but the syndrome”. She comments about ‘Hindutva terrorism’ and demands that the Government must check RSS training camps. Doubting the Indian Army’s stand on the 2019 Balakot airstrike, she says, “The 'many terrorists died' claim is fast becoming another Bal Narendar killing crocodile with bare fists story. Or that cowdung cures cancer, existence of Vedic airplanes and other claims”. She says that she was specifically taught from childhood to not call herself a Hindu. “Can we have a public beef eating festival please? What is Hindu Rashtra without a little defiance of law?”, she once remarked.
Similar is the case with some of the Law Clerks of CJI Chandrachud whose names are mentioned for their “invaluable contributions” to the Handbook. Some of them clearly hold similar political views as Jhuma Sen. One of them appears to be a signatory to an open letter condemning “fascist Hindu agenda” and “casteism in Karnataka under the BJP regime”.
Everyone is free to hold and express their views, howsoever vile they are. The question is whether Indians should permit imposition on them, the views of such people through the institution of the Supreme Court.
The right to freedom of speech and expression guaranteed by the Constitution of India also guards against Compelled Speech. Freedom to speak includes freedom not to speak and to speak using words of one’s choice. The right not to be compelled by the State to use certain words or language is inherent in Article 19 of our Constitution. Although the Handbook has no statutory or constitutional backing and it does not purport to be binding, it carries a lot of weight, coming from the Supreme Court.
The new Handbook of the Supreme Court rightly states that words “shape narratives and influence societal attitudes”. That is exactly what some Judges are trying to do through the Handbook, to shape narratives and push a political ideology through the Supreme Court. This is nothing but tyranny of the unelected. Lawyers and other Judges must resist such attempts in the interest of the institution of Judiciary.
[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]