Understanding
Discrimination and Equality: Breaking down the language of CEDAW
Article 1
The CEDAW
Convention requires us to understand the concept of discrimination
in its broad sense. It seeks recognition for forms of discrimination
that are not so obvious or direct. It points out, for example,
that in areas where women face disadvantages not applicable
to men, applying a neutral, narrow rule providing for equality
of access for women and men may still constitute discrimination.
According to the spirit of the CEDAW Convention, the elimination
of all forms of discrimination against women is necessary to
ensure substantive (real) equality between men and women. Therefore,
an understanding of the framework of discrimination is a starting
point for applying the provisions of the CEDAW Convention to
address actual situations comprehensively.
When preparing
a communication or inquiry, it may be helpful to consider the
elements of Article 1 of the CEDAW Convention. It is important
to note that each word in the definition is crucial in identifying
different manifestations of gender discrimination.
CEDAW Article
1:
"For
the purposes of [CEDAW], "discrimination against women"
shall mean 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
of men and women, of human rights and fundamental freedoms in
the political, economic, social, cultural, civil or any other
field."
"Any
distinction, exclusion, restriction"
-
Distinction
[e.g. distinction of requirements for women to enter into
tertiary education]
-
In
Burma, girls wanting to study engineering need to obtain
higher grades and meet additional requirements than boys
to enter university. In the past, students have been told
that this is due to the fact that this is not a "traditional"
career for women and that women have a tendency to stop
practicing the career when they marry.
-
Exclusion
[e.g. exclusion of women as migrant workers; exclusion of
women from certain occupational activities or from fully practicing
their occupation]
-
In
Nepal and Bangladesh, the government decided to respond
to numerous complains of abuse and trafficking of migrant
workers by implementing a protective measure that bans
all women from going out of the country as migrant workers.
-
The
European Commission has reviewed cases concerning: (a)
women police officers not been equipped with firearms
or trained in their handling; (b) exclusion of women from
the British Royal Marines and (c) exclusion of women from
almost all military jobs in Germany.
-
Restriction
[e.g. restriction on freedom of movement and right to work;
restriction on right to equal treatment at work]
-
Policies
and practices that aim to restrict women's movement and
limit safe and legal modes of employment at night as means
to protect them from violence and harm.
-
In
Rukhani v Divisional Manager, Marapalam tea division,
a divorced woman working in the plantation requested a
transfer to another division. The manager of the new division
requested a "no objection certificate" from
her husband before she could join the service. Since she
would not comply, she was refused employment.
"made
on the basis of sex [and gender]"
Sex is defined
as biological differences between men and women. Gender adds
a new dimension, which extends to the construction of gender
roles (e.g. what is expected of women, how should women behave,
etc.). The CEDAW Convention refers to both 'sex' and 'gender'.
That Article 1 applies to discrimination on the basis of gender
is evident from Article 5(a), which requires the State to eliminate
prejudices and practices based on stereotypes and those which
perpetuate ideas of subordination and inferiority of one sex
over the other.
-
In
the case of Brooks v. Canada Safeway (1989), the issue
that "discrimination because of pregnancy is not discrimination
because of sex because not all women are or become pregnant"
was raised. The Supreme Court repudiated such argument and
concluded that "the fact that only some women are affected
by pregnancy-related discrimination does not mean that it
is not discrimination on the basis of sex. Only women are
affected by this form of discrimination and they are discriminated
against because of their gender."
"which
has the effect or purpose"
-
Effect
(Unintended/Indirect Discrimination)
In the case of British Columbia v. BCGSEU before the Canadian
Supreme Court (1999), the British Columbia government established
minimum physical fitness standards for its forest firefighters.
One of the standards was an aerobic that required certain
degrees of strength and fitness that only men could achieve,
thus, women consistently failed the physical fitness test.
The court stated that to determine the existence of a bona
fide occupational requirement, it must conform to a three-step
test: (a) the employer must show that it adopted the standard
for a purpose rationally connected to the performance of the
job; (b) the employer must establish that it adopted the particular
standard in an honest and good faith belief that it was necessary
to the fulfillment of that legitimate work-related purpose;
and (c) the employer must establish that the standard is reasonably
necessary and that it is not possible to accommodate individual
employees sharing the characteristics of the claimant without
imposing undue hardship upon the employer. The court held
that the fitness test was not a bone fide occupational requirement
and therefore the practice was ruled to be discriminatory.
-
Purpose
(Intended/Direct Discrimination)
Sexual harassment in the workplace, unreasonably interfering
with an individual's work performance or creating an intimidating,
hostile offensive working environment can amount to direct
discrimination (Vishaka and others v. State of Rajasthan (1997)).
"of
impairing or nullifying the recognition, enjoyment or exercise"
Imparing
Recognition
[e.g. impairing recognition of the equal rights and responsibilities
to both parents; same rights to guardianship-Articles 16(d)
and (e)]
In the case of Githa Hariharan v. Reserve Bank of India (1999),
a bank would not recognise the mother as the guardian of a minor
child because national legislation provides that a mother could
function as a guardian only after the lifetime of the father.
The court considered equality jurisprudence under the Constitution
and the CEDAW Convention and held that in all situations where
the father is not actually in charge of the affairs of the minor,
the father would be deemed "absent" for the purposes
of legislation and the mother can act as the natural guardian
of the child.
Impairing
Enjoyment
[e.g. impairing enjoyment of the same right to promotion and
job security-Article 11(e)]
A senior official in the Indian Foreign Service was married
with children. She was due to be promoted as a consul but
was denied because of a rule that stated that "no married
woman is entitled to a promotion." Another rule stated
"at any time after marriage, a woman member of the service
may be required to resign from the service…" (C.B
Muthamma v UOI).
Impairing
Exercise
Provisions regarding right to privacy and protection for transsexuals
did not address problems regarding conditions imposed by national
law for exercising the right to marry. Although in theory transsexuals
are able to marry persons from their former sex, the need to
produce birth certificate as documentation of sex and identity
proved to be a barrier to the exercise of the right to marry.
"If the conditions under which a person claiming legal
recognition as a transsexual established that gender re-assignment
has been properly affected then, the formalities applicable
to future marriage cannot be found as justification for barring
the transsexual from enjoying the right to marry under any circumstances"
(Christine Goodwin v. United Kingdom, European Commission on
Human Rights, 2002).
-
Nullifying Recognition
At times, a consequence of a changes in government or a shift
from a uniform code to religious personal laws, women have
"lost" rights (e.g. Afghanistan during the Taliban-led
government).
Nullifying Enjoyment
In the case of Lovelace v. Canada, HRC, (1981), Sandra Lovelace
was born in Canada where she had been registered as a Maliseet
Indian. In 1970, she married a non-Indian. As a result, lost
her rights and status as an Indian and consequently also lost
her right to the use and benefit of the land allotted to the
Indians as a band as well as her right to reside on the Indian
reserve.
Nullifying Exercise
An Ontario bill violated standards and principles regarding
freedom of association by excluding domestic workers, agricultural
workers and other professionals from the access to collective
bargaining and the right to strike. This bill would have terminated
existing rights and nullified existing agreements and successor
rights and for this reason, was found to be discriminatory
and repealed (ILO Standards).
"by
women [as individuals or as a group]"
The term
women here must refer to women as individuals, i.e. a single
woman experiencing discrimination, or women as a group, i.e.
discrimination directed at specific groups of women or at women
in general.
"irrespective
of marital status [or any other status]"
-
Mrs.
Avellaneda owned two apartments in Lima. Her tenants ceased
paying rent and thus, she sued them. The Supreme Court considered
that Avellaneda was not entitled to sue on a procedural ground.
According to Article 168 of the Peruvian Civil Code, when
a woman is married, only the husband is entitled to present
matrimonial property before the courts. The Human Rights Committee
decided in her favour stating that discrimination based on
sex and marital status is a violation of the principle of
equality before the law and equal protection of the law (Avellaneda
v Peru, HRC, (1986)).
"on
the basis of equality of men and women"
This principle
of equality is central to the CEDAW Convention and but has not
been without debate. The conventional understanding of 'equality
of men and women' is the right of women 'to be equal to men'
and as such to be treated in an identical manner in order to
achieve equality. In effect this notions applies traditional
male standards to women and ignores the ways in which women,
by nature and circumstance, are different from men. Expecting
women to access opportunities and perform according to the same
rules and standards as men does not take into consideration
intrinsic historical and current biological and gender differences.
Another
traditional approach to equality adopts a protectionist angle.
In taking into account the differences between men and women,
this approach requires that women be prevented from doing certain
things in their own interest. In this way, the differences between
men and women are reconstituted as weaknesses in women and justify
the allocation of an inferior status to women. For example,
where women are prevented from doing night shift work because
of the lack of a safe environment, and as a consequence employers
are reluctant to hire women because of increased burdens for
their safety, rather than challenging gender discrimination,
it becomes more entrenched. The protectionist approach views
a woman's gender as the problem and tries to address it, rather
than the acknowledging and challenging the environment which
poses a threat to women.
The CEDAW
Convention therefore encourages the adoption of the substantive
equality model. Substantive equality adopts a two-pronged approach,
firstly stressing the importance of equality of opportunity
and secondly recognizing the importance of equality of results.
Equality of opportunity refers to the obligation on States to
ensure that women have the means to access, on equal terms with
men, the resources of a country e.g. through a framework of
laws, policies and procedures. Equality of results takes the
obligation of means to a higher level, recognising that the
means must deliver the requisite results. The execution of State
obligations is measured, not only by what actions the State
takes, but also by the results generated by those actions.
The CEDAW
Convention's version of equality recognises that equal access
and equal benefits are the key elements to achieving the equality
of men and women. Equal treatment, e.g. gender neutral laws
and policies, fails to take into account the differences between
women and men, and how these differences might affect their
ability to approach and access rights. The recognition of difference
extends beyond the biological (sex) and acknowledges that social
(gender) pressures, both current and historical, place women
in an unequal and primarily subordinate position. Substantive
equality therefore takes the corrective approach, recognising
that women and men may have to be treated differently to achieve
equality of results. Enabling conditions (Article 3) and affirmative
action (Article 3) may be appropriate means of facilitating
this.
"of
human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field"
-
The
rights and freedoms referred to are those contained in the
CEDAW Convention and General Recommendations, other international
human rights treaties and international instruments that have
contributed to the expansive interpretation of the human rights
of women.
This
page was last updated on November 1, 2003
“IWRAW
Asia Pacific is an independent, non-profit, NGO in Special consultative
status with the Economic and Social Council of the United Nations.”
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