Written by Namah Bose
Research Intern,
Jindal Centre for the Global South,
O.P. Jindal Global University, India
Email: namahbose20231@rgnul.ac.in
Introduction
Gender discrimination and discrimination due to disability are pervasive in society. However, the intersectionality between gender and disability is often overlooked. It is a known statistic that disabled women are more likely to face violence compared to non-disabled women. (International Labour Organization, 1999). Before beginning with an analysis of the intersection of gender and disability, it is imperative to understand disability. The Convention of Rights of Persons with Disabilities include those who have long-term physical, mental, intellectual, or sensory impairments which affect interaction and participation in society under the definition of a person with disabilities under Article 1. (Convention on Rights of Persons with Disability, 2006) Article 6 of the UN convention recognizes that women with disabilities suffer from multiple discrimination and state parties shall take special measures to guarantee them their fundamental rights. (Convention on rights of persons with disability, 2006).
The paper analyzes the topic in a threefold manner – [I] Firstly, the paper highlights the problems faced due to the intersectionality of gender and disability. [II] Second, it examines the existing legislation on disability in South Asian countries, which include India, Bangladesh, Pakistan, Bhutan, Sri Lanka, Maldives and Afghanistan. [III] Lastly, the paper will explore the need for specialized legislation for gender and disability. It would also scrutinise and suggest mechanisms for making the existing framework on disability inclusive of gender-related issues.
I. Discussion on the Pervasiveness of Double Disadvantage: The Effects of The Intersectionality of Gender and Disability
From the UN recognition to the governments of countries, it is universally acknowledged that women face a double disadvantage compared to disabled men. Patriarchy has always given a special privilege to male members of society. In the South Asian community, a girl child is seen as a liability and is often neglected. The situation of women in South Asia is deplorable, and the same can be seen through the difference in statistics for education, employment, nutritional needs and birth rates.
Afghanistan, for example, has one of the largest populations per capita of persons with disabilities in the world. Afghanistan being a conflict-stricken country has led to more than a million Afghans with physical or mental disabilities, including amputated limbs, hearing or visual disabilities and PTSD. (Holmes, 2020) With the Taliban government taking control of the country, it is a difficult time for a disabled woman due to their regressive views towards women and girl children in general. The situation in most of the South Asian countries is on a similar footing.
As per the 2001 census conducted in India, 42% of the population with disabilities comprises women. It is often reported that women face exploitation, physical and sexual abuse, and involuntary treatments, including electroshock therapy. (Barriga, 2014). Similarly, 57% of the population of disabled people in Sri Lanka are women. (World Vision, 2022)
In general, looking at the dwindling gender ratio in India, honour killing in Pakistan, forced marriages in Afghanistan, and trafficking, which is rampant throughout the area – the common denominator is the lack of equality between men and women in South Asian society. The gender divide has been exacerbated due to COVID-19 (United Nations Women, 2021). It is important to note the condition of disabled women in the countries and to take a deeper look at the legislative lacuna and bureaucratic red tape which prevents disabled women from being treated equally.
II. The Existing Framework for Disability in South Asia
For a long time, the persons with disabilities Act 1995 were applicable throughout India. It was replaced by the Rights of Persons with Disabilities Act of 2016. (Rights of persons with disabilities, 2016). The statute provides all the provisions required to ensure a life of dignity for disabled persons. It covers all aspects of Education, employment, social security, health rehabilitation, and recreation, along with certification of specified disabilities. Section 4 states that the appropriate government must take measures to ensure that women and children with disabilities are not put in a more disadvantaged position due to their gender and age, respectively. The act thus gives legislative recognition to the doubly disadvantaged position women and children find themselves in. However, there are no specific actions that the centre commands any authority to undertake to secure the position of women with disabilities. The Economic and Social Commission for Asia and the Pacific (ESCAP) under the United Nations, through resolution 48/3, proclaimed the period from 1993 to 2002 as the Asia and Pacific decade of disabled persons. This gave a fresh impetus to the disability rights movement within the region. The double disadvantage that women face can be highlighted by analyzing employment. Women’s work in a patriarchal society is always seen as secondary to work done by a man. Under the PWD Act, 1995, three percent of jobs are reserved for people with disabilities. However, no special reference has been made for women on the reservation. Further, due to the lack of strict enforcement combined with the work sites still not being barrier-free, employability opportunities are lower for women with disabilities.
Another problem noted within India by the Human Rights Watch was that due to legislation and laws in place, families would drop disabled members off in government institutions and mental hospitals without accounting for their needs, which increased their suffering (Barriga, 2014). There is a need for a legislative shift from forced institutional care to community-driven set-ups. It has been studied that often women with such disabilities are institutionalised without their will and leads to them having a life of degradation and abuse.
For people with intellectual and psychosocial disabilities, the Mental Health Act also plays an important role in shaping lives. Cases have come to light where husbands have institutionalised wives to label them as insane, as the new Mental Health Act does not require a court order. The Mental Healthcare Act 2017 fails as it is geared towards protecting and granting rights for patients within the confines of hospitals & healthcare centres. The implementation of MHC is failing due to a lack of safeguards within institutions and less regard for consent. (Kalia, 2023).
Coming to Pakistan, which ratified the UN Convention for Persons with Disabilities in 2011, however, the implementation and the legislations have not been in line with the convention. The laws have only recently been implemented. Considering that persons with disabilities are a provincial subject matter, there are legislations provincially, such as the Sindh Empowerment of Persons with Disabilities Act 2018 and the Balochistan Persons with Disabilities Act 2017. It was in 2020 that the international treaty was given effect by implementing the ICT on Rights of Persons with Disabilities Act 2020. (Kizilbash, 2020) The problem with the legislation in Pakistan is that they are poorly implemented, and the courts are slowly making strides forward to ensure that PWD is not treated in a derogatory manner. (Kizilbash, 2020) Education is a leading problem for persons with disability in Pakistan. In a country where the community often ignores female education, it becomes even harder for a woman with a disability. Families invest even less to educate disabled women in a country where marriage is already given more importance than other facets. There are no particular provisions geared towards recognising and aiding women with disabilities by providing leadership roles etc. There is a legislative need to focus on women’s education for disabled persons. Further, the real-life implementation of such acts needs to be considered.
The National Policy for Persons with Disabilities, 1995, was passed to improve the situation of the disabled in Bangladesh. (Husain, 2008). Further, the parliament enacted the disability welfare act 2001. Like Pakistan, it can be noted that despite legislation, women with disabilities face several hindrances concerning education, employment and transport. This leads to a failure to integrate women with disabilities within normal society.
Sri Lanka has the Rights of Persons with disabilities act, 1996, in place to protect the disabled. (Disability: In). While disabled people constitute 8.7% of the population, the act does not meet international standards. While a disability rights bill, 2006 was brought before the Sri Lankan parliament the same has not been passed to this day. An example of the barriers that exist would be that while sign language is recognised as a language at the policy level, the same has not been given legal validity.
On the other hand, Bhutan has taken quite an interesting legislative approach to tackle the intersection of gender and disability. (UNPRPD 2021) Various government organizations like the National Commission of Women and Children, CSO authority, international organizations UNDP and UNICEF, and NGOs like the Disabled Persons Association of Bhutan have collectively worked on the disability policy of Bhutan, which was approved in 2019 by the parliament. Including the government organisation responsible for women and child development creates an inclusive policy. The country has also made special mentions to disabled women in the gender equality policy of the country. On analysis, South Asian countries like Pakistan, India, and Afghanistan can learn from Bhutan and involve several bodies in drafting legislation. Further, there should be a focus on specialised legislation like Bhutan’s gender equality policy.
III. Need for Specialized Legislations and Suggestions On the Intersectionality
The common factor between all the South Asian countries regarding the disability problem is that firstly, the situation of women in these countries is already appalling and second, in addition, while the governments recognise the double disadvantage faced by women with disabilities, there is a lacuna in provisions to help such women.
The recommendation in terms of legislation would be three-fold. Firstly, it would be righteous to involve bodies related to the cause of women and disabilities to aid in policy making. For example, the way Bhutan involved international organizations, government bodies as well as NGOs. (UNPRPD. 2021). The government should recognise and acknowledge the role played by NGOs and encourage the role of NGOs to help disabled people find employment and purpose. The example of Nepal disabled women’s association comes to mind when noting the importance of NGOs.
Secondly, the government needs to frame policies which would factor in various indicators to ensure disabled women are treated equally. (World Disability Report, 2011). Article 15(3) in the Indian constitution provides affirmative action to bridge the gender divide. (Const. Of India, Art. 15 (3). The Constitution of Pakistan in Art. 34 similarly leaves room for affirmative action for women. Such constitutional provisions can be used to help Disabled women. Specialized legislation for disabled women or specific provisions which provide such women’s employment reservations could be helpful. South Asian countries could especially benefit from gender equality acts, which would focus on affirmative action and financial aids to ensure girl children’s education from school up till university. Such acts can include clauses to guarantee the safety of disabled women from exploitation.
Another feature of any legislation regarding the treatment of disabled women should constitute several guarantees for consent. (S. Raha, 2018). The situation in India, as mentioned earlier in the paper, leads to families dropping their relatives (daughters, wives, etc) to mental health clinics without their consent, where they are made to go through treatments which they did not sign up for. (BBC, 2018) They are often given various forms of therapy and are detained arbitrarily even after their treatment is complete. Such detainment is unreasonable and can emotionally scar the patient. Legislation should also include other intersections like economic backwardness to ensure the safety and education of disabled women who belong to financially weaker families. Caste and income play an important role in determining the life of a disabled woman, and thus, these factors need to be taken into account while making policies. Legal barriers faced by disabled women include issues in accessing legal help. Disabled women are at an increased risk of forced medical procedures. When women have to undergo forced procedures in clinics, etc., they have no means to access legal help. Free legal aid is a provision in the DPSPs of the constitution and should be provided to these women. Organizations can be set up to ensure that such women get help throughout, from legal counselling to the stage of legal action.
The final recommendation is rooted in the implementation of the policies. The government rolls out several policies and acts to benefit millions of citizens. However, without proper implementation and the rampant existence of bureaucratic red tape, the policies hold little to no value.
IV. Conclusion
The systematic marginalization of women has led to there being several barriers for them to reach the status of equality. Disabled women are marginalized due to both their disability as well as their gender. This intersection leads to barriers of all kinds, including legal, physical, communicational, etc., which creates various difficulties. The attitude of society as one of pity does not help improve the situation or overcome challenges faced by the community. In such situations, the government needs to do its part to assist disabled females so that they can overcome the barriers.
In conclusion, active government participation to remove barriers for disabled females would help alleviate the circumstances. Mere recognition that women are doubly disadvantaged will not provide the solution to change the discriminated state in which disabled women find themselves. Society needs to modify its outlook on women, but for that, the state must make appropriate measures and provisions for a flourishing environment to grow.
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The opinions expressed in this article are those of the author (s). They do not purport to reflect the opinions or views of the Jindal Centre for the Global South or its members.
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