The problems of defining and applying the concepts of gender equality and gender inequality in Russian law

Madatov Oleg Yakovlevich General adviser, Interregional Public Movement for the Protection of the Rights of Servicemen and Their Families "Conscience of the Law" 350072, Russia, Krasnodar Territory, Krasnodar, Moskovskaya str., 61, sq. 32 oleg_madatov@rambler.ru Other publications by this author

Introduction

The problem of gender equality over the past two centuries, despite the efforts of leading scientists, has not yet been fully resolved, although significant steps have been taken in this direction.

In most countries of the world, the rights and freedoms of men and women have been equalized at the legislative level in accordance with the principles set out in the Universal Declaration of Human Rights ^{[1, p. 94]}. However, some studies show that true gender equality has not been achieved at present. Often, equality of rights and freedoms is not comprehensive, but declarative.

One of the problems hindering the achievement of gender equality between men and women is the uncertainty in the scientific literature, legislation and practice of concepts such as "gender equality" and "gender inequality", without the formulation of which it is impossible to establish the discrepancy between the gender rights, freedoms and duties of citizens of different sexes, as well as to regulate legal relationships, ensuring their equality, which determines the relevance of the conducted research.

In his scientific work, the author explores the terms "gender equality" and "gender inequality" of domestic and foreign scientists, gives his interpretation of these definitions, establishes their main differences, and also summarizes the possibility of applying them both in the legal aspect and in modern science.

The subject of the study are the norms of constitutional (Part 2 of Article 6, Part 3 of Article 19 and paragraph "zh.1" of Part 1 of Article 72 of the Constitution of the Russian Federation), civil (part 1 of Article 12 of the RF IC) and administrative law (Part 2 of Article 3.9 and Part 2 of Article 4.2 of the Administrative Code of the Russian Federation), other normative legal acts and judicial acts defining gender equality and inequality of citizens of the Russian Federation.

In the course of the work, dialectical, logical, systemic, functional, formal-legal, comparative-legal research methods were used.

1. The peculiarity of understanding the term "gender equality" in different countries

Many Russian and foreign scientists have dealt with the problems of gender equality and inequality: E. G. Abramenko, S. A. Balashenko, S. N. Burova, V. G. Shadursky, D. M. Solodovnik, K. A. Fursov, V. L. Parkhimovich ^{[2, p. 91]}, N. A. Chichulin ^{[3, p. 97]}, I. F. Petrov, S. I. Petrova ^{[4, p. 21]}, Aynur Gok, Timuçin Kodaman ^[5], Abdyramanova Ch. Sh. ^[6], Ganguli I., Hausmann R., Viarengo M. ^[7] and others.

Thus, in the opinion of Candidate of Sciences I.N. Kandrichin, Candidate of Law S. N. Burov and Candidate of Economics A. V. Selivanov (Republic of Belarus): "Gender equality is an equal assessment by society of the similarities and differences between women and men. This is the possession of equal status by women and men through equal conditions for the realization of human rights and potentials" ^{[8, p. 9]}.

It is impossible to agree with this opinion, since from a legal point of view, men and women should have equal rights, however, this definition boils down to the fact that in order to implement the concept of gender equality, society must take into account the similarities and differences between gender groups, that is, initially limit some and give preferences to others, which cannot be by their nature, equality of rights.

Another point of view is held by Kris Hardies (Netherlands): "Gender equality is a matter of social justice, which requires that everyone be recognized equally in an existential sense and have an equal right to the most extensive total system of equal basic freedoms compatible with a similar system of freedom for all" ^{[9, p. 212]}.

However, equality of rights to basic freedoms does not guarantee equality of constitutional rights of citizens, constitutional freedoms that are not basic, as well as equality of constitutional opportunities, duties and duties of a person and a citizen.

Fellow countryman of Candidate of Historical Sciences Yu. V. Golovinov (Russia) He believes that "gender equality should be understood as the consolidation and realization of equal rights, freedoms, duties and opportunities for men and women in all spheres of human activity" ^{[10, p. 142]}.

A similar opinion is expressed by Harvard University professors Sarah S. Richardson, Meredith W. Reiches, Joe Bruch, Marion Boulicault, Nicole E. Noll (USA), "gender equality is a multidimensional construct" that determines the equality of rights of men and women in various spheres of life ^{[11, p. 2]}.

There are four main spheres of human activity: social, economic, political and spiritual. From the legal side of the issue, the definition ensures gender equality, however, in practical application, certain difficulties may arise, for example, in the aspect of the clergy. According to Part 1 of Article 4 of the Constitution of the Russian Federation: "Religious associations are separated from the state," and within Part 5 of this article "carry out their activities in accordance with their own hierarchical and institutional structure," that is, religious associations themselves build their hierarchy and management structure. Thus, in the First Epistle to the Corinthians of the holy Apostle, in chapter 14, line 34, it says that "Let your wives be silent in the churches, for they are not allowed to speak, but to be subordinate, as the law says" ^{[12, p. 15]}. For the same reason, the Pontiff (Pope) cannot be a woman, which is directly enshrined in canon 1024 of the Code of Canon Law, according to which holy ordination is accepted only by a baptized man ^{[13, p. 394]}. Therefore, the specified definition cannot be fixed in this aspect and cover all spheres of human activity from the legal side.

The United Nations Economic Commission for Europe at the Conference of European Statisticians (Neuchatel, Switzerland) considered from May 15 to 17, 2019 the issue of sustainable development for the period up to 2030 from a gender perspective, within which it published "working paper 16a" in paragraph 7 of which it determined that there are numerous different definitions of the concept of gender equality, at the same time the structure The UN defines "gender equality as equal rights, responsibilities and opportunities for women and men, as well as girls and boys. Equality does not mean that women and men will become the same, but that the rights, duties and opportunities of women and men will not depend on whether they were born from men or women" ^{[14, p. 3]}.

Regarding the gender consolidation of equality of rights, duties and opportunities for their realization without separation by gender, it should be agreed. At the same time, the introduction of this term in this aspect of the study boils down to the fact that even when considering the issue of legal equality, the author of the definition does not unite men and women, but separates them, specifying the gender of each subject of legal relations.

According to N. I. O. Rzayev (Azerbaijan), gender equality is a social condition where gender and gender are not the same ^{[15, p. 29]}.

It is impossible to agree with this definition, since the consideration of gender equality in the aspect of the social state of society is only an abstract representation, whereas in modern society the issue of gender equality can be assessed by a comparative analysis of rights, freedoms, duties and opportunities for their realization for both men and women.

Professor Vu Hong Van (Vietnam) believes that "Gender equality means that men and women have equal positions and roles, they are provided with conditions and opportunities to promote their potential for the development of society, family and equally enjoy the fruits of this development" ^{[16, p. 356]}, the same is stated in paragraph 3 Article 5 of the Vietnamese Law on Gender Equality of 2006.

However, taking into account the principles of gender equality themselves, this definition will be inaccurate, since equality in the aspect of this terminology should guarantee equal rights, whereas this concept speaks only about equality of positions and roles. At the same time, equality of positions and roles are not always of the same type or identically equal, a man can work and bring prosperity to the house, and a woman can do household work and raise children, on the part of society their positions and roles are equal, but in terms of gender equality, a woman cannot always take advantage of all the benefits that are provided for men, which is confirmed previously described research.

The conducted research has shown that to date, neither in Russian nor in foreign science, it has been possible to formulate a common opinion on the definition of gender equality.

At the same time, the main common disadvantage of these definitions, in the author's opinion, is that gender equality begins with the generalization of gender differentiation, whereas the very essence of equality boils down to the fact that a citizen (person) must have all the rights, freedoms and opportunities for their realization without gender separation.

According to the author, gender equality is the rights, freedoms, duties and opportunities guaranteed by the state and international legal acts in relation to citizens without separation by gender.

Consequently, the concept of gender equality describes such a state of rights, freedoms and duties of men and women, to which legal science and the legislation of the Russian Federation must strive.

2. The peculiarity of understanding the term "gender inequality" in different countries

According to the monograph by D. I. Tashbekov and E.A. Dolgikh (Russia), "gender inequality is asserted as gender differences that harm both sexes in society" ^{[17, p. 26]}.

This definition has not been fully disclosed. In the legal aspect, inequality may be the granting of an additional range of rights to one category of citizens, while discrediting the rest by not granting previously presented rights to the first. The basis of this scientific problem of gender inequality is the gender identity of an individual who, depending on his gender, is or is not discriminated against. However, contrary to the opinion of the authors of the definition, gender differences cannot legally harm both sexes at the same time. Thus, if persons of one sex are discriminated against, then persons of the other sex are not only not discredited, but in some cases they may be granted additional rights.

G. B. Tologonova (Kyrgyz Republic) holds a slightly different point of view, in her opinion, gender inequality is dissatisfaction with life needs due to being in an unequal position, taking into account gender ^{[18, p. 154]}.

It is impossible to agree with this definition, since it boils down to the fact that gender inequality affects human life and development. At the same time, the vital needs of a person are food, water and shelter, in a more complete understanding these are respect, friendship and love. Dissatisfaction with these needs does not indicate gender inequality or violation of the gender rights of the subject of legal relations.

A different approach was expressed by K. Kizilova (Austria), who argues that gender inequality is "an indicator of the gender gap in politics, economics, education and health", manifested to men and women through discrimination ^{[19, p. 631]}.

We consider this statement to be erroneous, since the author of the definition considers the gender gap in relation to the number of men and women working in a particular industry. If there are more representatives of one sex in one industry in relation to representatives of the other, this does not indicate gender inequality, since men and women have an equal right to work without any discrimination (Part 1 of Article 37 of the Constitution of the Russian Federation and Part 1 of Article 23 of the Universal Declaration of Human Rights), in other words, the employer does not takes into account gender when choosing an employee. If jobs were distributed in a ratio of 1 to 1, that is, 50% of jobs for women, 50% of jobs for men, then more in-demand employees, regardless of their gender, could simply not be employed due to the introduction of such a ratio, which would lead to gender inequality, so how gender would be taken into account, and to a decrease in the level of performance indicators of the organization.

S. Klasen and M. S. Santos (Federal Republic of Germany) hold the opposite opinion, considering that "gender inequality is a social norm based on the difference between men and women in physical strength, health and preferences" ^{[20, pp. 6-7]}.

At the same time, in our opinion, gender equality cannot be a social norm, since it is not a general rule of behavior conditioned by social relations.

According to American scientist Baoping Shang (USA), "gender inequality is the result of gender biases and social norms that limit rights and opportunities based on gender" ^{[21, p. 4]}.

This definition is not fully disclosed, in addition to restricting rights, freedoms may also be limited, additional responsibilities may be imposed and different opportunities may be created depending on gender.

Thus, there is currently no single scientific approach to understanding the definition of gender inequality.

At the same time, the analysis of the above definitions showed that gender inequality in the scientific world is attributed to one of the indicators of gender equality, the presence or absence of which determines gender equality in a particular field of research. In other words, it does not have a clearly defined definition.

According to the author, gender inequality is a manifestation of discriminatory signs over the rights, freedoms, duties and opportunities guaranteed by the state and international legal acts for citizens to achieve them, depending on their gender.

Thus, an essential criterion for the difference between gender equality and gender inequality will be the indication by the legislator in normative legal acts of the gender identity of the subjects of the described law.

3. Gender concepts in Russian legislation and its law enforcement practice

In accordance with Part 2 of Article 6 and Part 3 of Article 19 of the Constitution of the Russian Federation, men and women have equal rights, freedom, opportunities for their realization and bear equal responsibilities, that is, in legal and law enforcement aspects, rights, freedoms, duties and opportunities for their realization for citizens should be the same, without separation by gender.

The author realizes that in certain aspects, such as the physiology of the human body, women and men have different anatomical features ^{[22, p. 85]}, however, from a legal point of view, this cannot be the basis for the difference in their rights, freedoms, duties and opportunities for their realization, as it is enshrined in the Constitution of the Russian Federation, since these aspects do not affect the issues raised, and, therefore, the rights of one sex in relation to the other should not be limited, as well as more rights should be granted only because of one criterion related to gender.

When considering controversial issues in the aspects of gender equality, the subjects of legal relations often resort to judicial protection. The courts, in accordance with Part 1 of Article 19 of the Constitution of the Russian Federation, proceed from the principle of equality of all before the law and the court in court proceedings (paragraph 2 of Article 6 of the CAS of the Russian Federation, Article 6 of the CPC of the Russian Federation, Article 7 of the APC of the Russian Federation). Consequently, in the aspect of law enforcement, men and women have equal rights without taking into account their anatomical features. Consideration of anatomical features is possible in exceptional cases when the very aspect of the physiology of the human body, human health, etc. is affected. However, in all other cases, gender should not be the basis for granting additional rights, freedoms and opportunities or for discrediting them.

One example of a rule of law that can be attributed to gender inequality is the application of administrative arrest to citizens of the Russian Federation. In accordance with Part 2 of Article 3.9 of the Administrative Code of the Russian Federation: "administrative arrest ... cannot be applied to women with children under the age of fourteen" ^[23]. Accordingly, it is legally determined that only a woman, regardless of whether she is married or a single mother, is not subject to administrative arrest, provided that she has a child under the age of 14, whereas a man can be prosecuted even if he alone is raising a child.

This problem is very relevant, since according to statistics in 2023, "1.13 million are single fathers with children" ^{[24, p. 37]}, who hypothetically can be brought to administrative arrest, and children may remain without parental control for a given period of time.

Despite the lack of legislative consolidation of the principle of gender equality in this aspect, law enforcement judicial practice has precedents for the application of administrative arrest of single men and the settlement of the gender aspect at the trial stage.

The ruling of the Constitutional Court of the Russian Federation dated 10/15/2020 No. 2375-O established that citizen M. appealed Part 2 of Article 3.9 of the Administrative Code of the Russian Federation, referring to the fact that only a woman can be released from administrative arrest, while a man is deprived of this right ^[25]. Considering the complaint, the court clarified in the descriptive part of the definition that the judges who consider the case and decide on the appointment of administrative arrest, by virtue of Part 2 of Article 4.2 of the Administrative Code of the Russian Federation, can "recognize mitigating circumstances not specified in this Code, including such as independent parenting by a father of children under the age of 14".

At the same time, the court noted that in this case, the courts have the right and obligation not only to achieve the goals of administrative punishment, but also to respect the legitimate interests of the offender's children, as well as to ensure a legal balance.

Thus, in the described situation, the possibility of releasing men from administrative arrest is not legally fixed, at the same time, there is law enforcement practice in this aspect. However, for men, the main criterion for exemption from administrative arrest will be not only the presence of a child under the age of 14, but also the presence of evidence that the application of administrative arrest will entail leaving the child without parental supervision, whereas for women it is enough only to prove that she has a child under the age of 14.

Accordingly, Part 2 of Article 3.9 of the Administrative Code of the Russian Federation in terms of exemption from administrative arrest can be changed, where the word "woman" is replaced by the word "citizens", which will lead to compliance of the article with the principles of gender equality and the regulation of the rights of subjects of legal relations.

Regarding the institution of the family, there is no direct prohibition of same-sex marriage in the legislation of the Russian Federation. However, according to paragraph "J.1" of Part 1 of Article 72 of the Constitution of the Russian Federation and Part 1 of Article 12 of the Family Code of the Russian Federation, "Mutual voluntary consent of a man and a woman entering into marriage is necessary for marriage," that is, it is implied that only persons of different sexes can enter into marriage. In this aspect, the rights of men and women do not violate the principle of gender equality in the Russian Federation, since both parties have the right to marry only a representative of the other sex, which makes it possible to bring legislation to gender compliance by replacing the terms men and women with identically equal without regard to gender. In the aspect of marriage between men and women, this expression can be used as a union of representatives of different sexes.

Conclusion

After conducting a scientific study, it was found that despite the consolidation of the provisions of equality between men and women in international and domestic law, concepts such as "gender equality" and "gender inequality" have not yet been defined. In modern science, there are no generally accepted definitions regarding gender equality and, often, equality of rights and freedoms is declarative.

This problem, caused by uncertainty in the scientific literature, in legislative acts and law enforcement practice of the terms under consideration, leads to the inability to establish the discrepancy between the gender rights, freedoms and duties of citizens, as well as to regulate legal relationships ensuring their equality, which was demonstrated in the descriptive part.

The implementation of this concept, according to the legal consolidation of the definitions derived by the author, will make it possible to bring the legislation of the Russian Federation and foreign countries to the conformity of the term gender equality, which most countries already strive for. Concepts such as "man" and "woman" within the framework of a legislative initiative should be replaced by gender-neutral concepts (for example, a person, a citizen and others), which ensures legal equality of rights, freedoms, opportunities, duties and duties of each person, regardless of his gender.

Summing up the scientific research, we note that the author analyzed the scientific definitions of gender equality and gender inequality of domestic and foreign scientists, derived their own terms, established the main difference between their understanding, and summarized the possibility of applying these definitions both in the legal aspect and in modern science.