“The Elimination of Discrimination Against Women: What does it take?”

Shanthi Dairiam, IWRAW Asia Pacific

Keynote address at the Southern Regional Colloquium for Lawyers on the Convention on the Elimination of All Forms of Discrimination Against Women
Bangalore, India
12-15 December 2002

This colloquium aims to discuss equality rights for women, the role of the law and the legal fraternity with regard to this agenda. In almost all countries of the world, there are constitutional guarantees for equality between women and men. Advocates of women’s rights need to be proactive and engage in creating the conditions by which such guarantees will benefit women in particular. Ideally one can argue for an equality guarantee exclusive to women.[1] This is because equality guarantees should protect and fulfil the needs of those who are discriminated against most and this happens to be women.[2] This function is served by a human rights treaty exclusive to women – the CEDAW Convention – which helps us to clearly name the problem for what it is, i.e. the subordination of women, identify the various manifestations and contexts of the subordination of women, develop appropriate approaches and do something about it. This is what equality guarantees for women should accomplish. The task of engaging in this project in a holistic manner rests with a range of persons – women as claimants, women as activists, academics, lawyers, judges and the bureaucracy.

Today I wish to comment on a few essential conditions that are needed if we are to bring about equality for women through the law.

Need for conceptual clarity

Equality means that women can enjoy all fundamental rights enshrined in the Constitution on the same basis as men. In this regard we have to be aware of the connections between the right to non-discrimination and the right to the enjoyment of all civil and political and socio economic rights. Non-discrimination in other words in the operative principle that will help enforce other rights on the basis of equality. We also have to realise the need to move from the more formalistic notion of merely prohibiting discrimination. Where inequality pre-exists as it does in the case of women, such an injunction will not necessarily translate into an enjoyment of rights. In many countries of the world, as in India, women continue to experience various levels of inequality in the fields of political participation, employment, ownership of assets, personal status in marriage, and the family and access to resources. Further more, they are also exposed to many forms of violence. Rights are interrelated. One needs economic resources for political participation, or personal security to engage in jobs that require working at night and so on. “Hence jurisprudence that merely requires negative absenteeism from certain forms of discrimination will not contribute to redressing systemic inequality.”[3] There has to be proactive targeted programmes to gain equality of outcomes or results.

The CEDAW Convention not only calls for the abolition of discrimination through legislation but also obligates the State to ensure the practical realisation of the principle of equality (article 2a). This focus on outcomes and the obligation of the State to put in place positive measures for the fulfilment of rights (article 3) and for the implementation of affirmative action to accelerate de facto equality (article 4a) are the defining features of a jurisprudence of substantive equality.[4] Such an approach has to be based on empirical studies of the obstacles to the enjoyment of rights that women experience on the basis of their social subordination as women and cater for it through law, policy and programme. In other words we are catering for difference and disadvantage experienced by women through special measures aimed at women but with an intention of bringing about equality of outcomes between women and men. Understanding the need to cater for difference and disadvantage that women experience, whether on the basis of biology or on the basis of social construction is what a gender-sensitive approach is all about. If we do not take this path, what will evolve is a jurisprudence of formal equality, which focuses on same treatment of all categories of persons with no ambition to transform the structural nature of inequality. Such a process will find a programme specially aimed at addressing the vulnerabilities of women as discriminatory towards men as men do not benefit from them. In such a case the legal argument has to emphasise the equal value and entitlements of all persons, and to point out that while a more advantaged group may not benefit from a special policy or programme aimed at another group, the denial of this benefit does not leave the former group disadvantaged either.

The point therefore is what do we need to do to encourage a jurisprudence of non-discrimination and equality based on gender. For this we have to go beyond the principle of treating likes alike in a narrow sense and the practise of legitimising differential treatment between those who are not seen as being similarly situated even if it leads to disadvantage. Under these circumstances, if a woman needs maternity leave then she could lose her job opportunity to a man because she was not similarly situated as he was i.e. he will never get pregnant. Or she may be given the job but the terms and conditions may require her to work without maternity leave even if she requires it and difference is not taken into account. Also take the case of the air stewardess who had to resign at the age of 35 as compared to her male counterpart whose retirement age is 45. This may not be seen as discrimination because the social perception is that the job requires attractiveness and women are presumed to be less attractive at the age of 45 than men. Such attributes ascribed to women and men by society are the fabric of discrimination based on gender. The principle of treating likes alike and not catering for difference would lead to a situation where a single standard rule applies and the standards and norms for this are male standards.

This takes us to the question of how do we identify inequality which is the outcome of discrimination. In other words what are we prohibiting? Jurisprudence in many jurisdictions has developed an understanding of discrimination. The questions traditionally asked are, was there a difference in treatment? Was it made on any of the prohibited grounds? Did it result in harm to the person experiencing it? The respondent on the other hand would have to prove that it was fair and there is whole range of criteria to establish fairness. Only what is seen as unfair discrimination is prohibited. But the CEDAW Convention takes us further. In article 1 the treaty defines discrimination as “any distinction, exclusion or restriction made, which has the purpose or effect of nullifying or impairing the recognition, enjoyment and exercise of all rights by all persons in the social, cultural, political and economic spheres”.

The conceptual framework underpinning this is the recognition that formal equality, often manifested in a gender-neutral framing of policy or law, may not be sufficient to ensure that women enjoy the same rights as men. This is because of the fact that women and men are not the same. We have seen that differences between women and men whether based on biological (sex) difference or socially created (gender) differences results in women’s asymmetrical experience of:

Therefore, under the CEDAW Convention discrimination will occur when an apparently neutral condition or requirement is imposed that has a discriminatory effect on women, although discrimination was not intended. For example, an aquaculture project in Bangladesh was found to discriminate against women because it required that all those aspiring to participate had to own ponds. Since women did not inherit their parent’s property or those who did, did not have access to the pond because they had moved to their husbands’ village, they could not participate in the project. In Australia, women retrenched from a steel mill because of the ruling “last hired, first retrenched”, filed a case of discrimination successfully. While it is true that the women concerned were hired last, the fact was that this mill had had a discriminatory policy several years ago of not recruiting women. At that time it was considered inappropriate for women to work in steel mills. The fact that women were the last to be hired was the consequence of historic discrimination, hence applying the rule of “last hired, first retrenched” in the case of these women was considered to be discriminatory against them although it was unintentional.

We have to take into account the ways in which women are different from men, and ensure that these differences are acknowledged and responded to by policy or legal interventions and programmes. Each incident of discrimination will therefore have to consider the context and history of the situation concerned. However, how this is done, depends on what kind of analysis informs the content of policy and programmes. All approaches that take into account differences between women and men are not immediately favourable to women – in fact they could be discriminatory in effect, if not in intention. In order to be able to intervene effectively in favour of women’s equality, it is important to have a conceptually sound understanding of what or why differences exist between women and men.

Women as compared to men, face many obstacles sanctioned by culture, religious practice, by entrenched male interests in key institutions such as political parties, trade unions, religious institutions, the courts, etc. Not putting in place enabling conditions or not altering rules to benefit women and thus facilitating their access to opportunities is considered to be discrimination under the CEDAW Convention although no discrimination was intended.

The definition of discrimination also provides a guide for assessing when the different treatment accorded to women is permissible. For example, protective measures like barring women from some forms of work could be construed as discrimination as they could work against women’s interests in the long term and may nullify or impair the enjoyment of rights.

It is essential to have clarity on these principles if we are to use the Convention as a tool for advocacy to promote the advancement of women. These principles provide the framework for formulating strategies and identifying actions for the advancement of women.

At this stage I would like to raise some concerns regarding constitutional provisions for equality and matters pertaining to the jurisprudence of equality.

Issues pertaining to the Constitution

For example, the South African Constitution makes provisions for this.
“No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection 3.”[5]

This is in conformity with article 2e of the CEDAW Convention which says that the States parties to this convention have an obligation not only to refrain from discriminating against women but also to protect women’s right to equality by regulating the actions of non-State actors. Article 2e of the CEDAW Convention reads, “To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise.”

Therefore ensuring that discrimination against women is eliminated is an obligation of the State under the CEDAW Convention regardless of who is responsible for the discrimination. All sectors including the private sector needs to be regulated so that there will be compliance with the requirements of the Convention.[6]

This has been done in other countries such as India and South Africa. The private sector too should be regulated in this way. The CEDAW Convention requires such positive actions under articles 3 and 4a.

Issues pertaining to the development of jurisprudence

We have some lessons to learn from the celebrated case of Attorney General of Botswana v. Unity Dow.[7] In this case, Unity Dow, a citizen of Botswana who was married to an American, applied for an order declaring that that Section 4 of the citizenship act of Botswana was ultra vires the Constitution of Botswana since it violated her fundamental right too pass on citizenship to her children. This was a claim of discrimination on the basis of sex as male citizens married to foreign spouses did not face a similar restriction .The respondent contended that the applicant did not only lack locus standi to litigate on behalf of her children but also that she herself had suffered no loss of guaranteed rights. Moreover, Section 15 of the Constitution did not prohibit discrimination on the basis of sex although Section 3 did, there was no obligation on the part of the State to grant citizenship rights to Dow. The courts decided in Dow’s favour. On the matter of locus standi, Justice Horwitz observed:
“In my view it is sufficient if she can show that there are consequences upon the application of Section 4 and 5 of the citizenship act which affect her adversely to give her locus standi.”[8]

Concerning the effects or adverse consequences the applicant would have to suffer flowing form Section 4 of the citizenship act, Justice Horwitz observed,
“It seems to me that the effect of Section 4 of the Citizenship Act is to hamper unnecessarily free choice, the liberty of the subject to exercise her rights in terms of the Constitution in the way she sees fit. No evidence of any national concern such as security and such like has been placed before me to justify the section on such grounds.”

In this judgment, the courts adopted a generous and liberal approach. Justice Horwitz stressed that in construing constitutional human rights guarantees the court must adopt a generous approach. Furthermore it should be noted that that in adopting a broad and generous approach to the interpretation of the human rights provisions of the Constitution the courts not only utilised comparative national jurisprudence but hey also invoked and relied on upon provisions of international human rights instruments and treaties to reinforce their approach. These included, the European convention on Human Rights and Fundamental Freedoms, the CEDAW Convention, the African Charter on Human and Peoples’ Rights, and the ICCPR. In justifying this reliance, the judgment noted:
“It is clear that it is the duty of the court when faced with the difficult task of the construction of provisions of the Constitution to keep in mind the international obligations. If the Constitutional provisions are such as can be construed to ensure the compliance of the State with its international obligations then they must be so construed.”
This not withstanding the fact that Botswana had not ratified some of these treaties.[9]

We need transformative constitutional lawyers to start using international standards.

I would like to leave you with these thoughts and to reflect on our individual roles to transform our societies to ensure equality for women.

Notes
[1] Morgan, Jenny. 1990. “Equality for Women or Equality for Gender Neutral Persons”. Paper presented at the Women’s Constitutional Convention. Canberra, Australia.
[2] The writer recognises that there are many other disadvantaged groups such as the indigenous, people living in poverty, etc. But here we are talking about women within all disadvantaged groups. Women suffer the disadvantages of their social group as well as the disadvantages of being women.
[3] Liebenberg, Sandra and O’Sullivan, Michele. 2001. South Africa’s New Equality Legislation: A tool for advancing women’s socio-economic rights.
[4] ibid. p9.
[5] Subsection 3 provides the grounds that prohibit discrimination.
[6] Obligations under human rights treaties are legally binding on States parties.
[7] The discussion on this case is taken from Tshosa Onkemetse. 2001. The Applications of Non-discrimination in Botswana in Light of Attorney General of Botswana v. Unity Dow:. Judicial approach and practice.
[8] BLR 231. 1991.
[9] At the time Botswana had not ratified the CEDAW Convention and certainly is not party to the European Convention. The courts saw fit to accept international human rights standards on non-discrimination as principles of international customary law.
[10] Dupper, Ockert. 2001.Justifying Unfair Discrimination: The development of a general fairness defence on South African Labour Law.
[11] Barclay, Claire. 2001. Towards Substantive Equality: A feminist critique of the notion of difference in the Canadian and South African equality tests.

 

 

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