Achievements and Challenges in Gender Equality in International Human Rights Law: The Last Twenty Years

This contribution is published as part of the Think Piece Series Let's Talk about Women's Rights: 20 Years after the Beijing Platform for Action. In this series, leading feminist thinkers discuss achievements in the field of women’s rights and gender equality; identify the challenges faced in implementing the Beijing Platform for Action; and consider ways of moving forward. They offer both critical insights and highlight opportunities for realizing women’s rights after 2015. Please share your thoughts on this article in the comments space below.

20 years after the Fourth World Conference on Women, which took place in Beijing in 1995, what has changed for women in the human rights field? There have been many changes in law and policy post-Beijing. Human rights treaty bodies including the Committee on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), have reinforced the message that states have an obligation to both pass laws and ensure compliance. Furthermore, they have noted that states have duties to challenge negative attitudes towards women which are based on gender stereotyping. International and regional courts have taken a more gender-sensitive approach in addressing gender stereotypes especially with respect to violence against women. Given the controversy surrounding the conceptualization of the term gender at the 1995 conference, the paper concludes by arguing for a more comprehensive reading of the term that embraces gender identity and sexual orientation.

Fareda Banda is Professor of Law at SOAS, University of London where she teaches Human Rights of Women and Family Law.

Achievements and challenges in gender equality in international human rights law: The last twenty years

Are UN Conferences ‘talking shops that achieve nothing?’ This short piece argues that the Beijing Women's Conference in 1995 accomplished a great deal. The identification of 12 critical areas of concern set an ambitious agenda for states. Much was achieved in particular in the areas of violence against women and women in armed conflict. Credit for that must be shared between civil society, human rights activists and development agencies, both within the UN and at the regional level for holding states to their pledges. Yet much remains to be done to realize the promises made.

In the first part of this piece, I set out a few of the positive changes in gender equality in international human rights law that have emerged post-Beijing. Also worthy of attention is the surprisingly limited conceptualization of the term ‘gender’ at the 1995 conference, which, I argue, disenfranchised many women and men, and requires urgent rethinking.

The significance of normative achievements after Beijing
It is often said that changing the law does not change society. This is true. However, it is also self-evident that laws and policy frameworks help to frame social problems, suggest solutions and set the agenda for action and change.

Enhancing human rights of women

Human rights of women were listed as one of the 12 critical areas of concern in the Beijing Declaration which identified three strategic objectives related to women’s human rights: To promote and protect women’s rights using the existing human rights instruments, especially the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979; to ensure equality in law and practice; and to improve legal literacy so that the beneficiaries might better be able to claim their rights. CEDAW has reinforced the requirements made in the Beijing Declaration that states should not wash their hands of responsibility for tackling negative attitudes that lead to an impairment of women’s enjoyment of their rights. It has done this by drawing the attention of states to two of its provisions. Article 2(f) requires states parties to “modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women” while article 5(a) requires states to “modify the social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”

The next section of this think piece focuses on gender stereotyping as a means to address the arguments made against women’s rights on grounds of culture. Some states as well as religious and community leaders have often argued that customs, cultures and religions are beyond the reach of human rights law. CEDAW has countered this by showing that gender stereotyping strongly hinders gender equality.

Striving against gender stereotyping after Beijing

Given the emphasis of the Beijing Declaration on tackling both legal and socially rationalized discrimination, it is worth flagging up the emerging case law and academic thinking on the impact of gender stereotyping. Cook and Cusack's analysis in their seminal book Gender Stereotyping (2009) has been influential. Taking an interdisciplinary approach, the authors underline the importance of a methodology that takes in: (a) diagnosis, that is naming the stereotype; ( b) the identification of the ways in which it creates or reinforces gendered inequalities, and, (c) the provision of analytical and practical solutions to challenging this prejudice.

Judges have made many gender-sensitive decisions challenging stereotyping in all jurisdictions. These include the Cotton Fields case in the Inter-American human rights system. Three young women failed to return from their jobs as waitress, textile factory worker and domestic maid. Their families contacted the police who refused to act, saying that the women had “probably gone off with their boyfriends.” The bodies of the young women were later found in a cotton field, together with five other bodies. They had been sexually assaulted and brutally killed. A complaint was made to the regional human rights body detailing the failure of the Mexican state to prevent the disappearances of women and thereafter its negligence in not investigating those disappearances, prosecuting those implicated and offering compensation and remedies to the families affected. While the case focused on the three women, it was pointed out that there many others who had disappeared and had later been found murdered. The disappeared women were generally young (between the ages of 15 to 25) and migrants, meaning they were poor and vulnerable. Some of them worked in factories away from the town centre. Transport provision was inadequate. The authorities did not regard these women as worthy of protection. The circumstances of their disappearance were not considered worthy of investigation by the police. Indeed the prevalence of violence had become so normalized as to be unworthy of comment or action.

Similar examples are known from the European system, in particular the failure to take seriously rape allegations made by a young woman because of doubts about the credibility of the teenage victim. She was perceived to have put herself in harm’s way by being in the company of the men who raped her at night (M.C. v. Bulgaria). The reluctance of both police and prosecution to take her complaint seriously seemed to turn on stereotypes surrounding the ‘correct/expected’ response from a woman who had been raped. These include the expectation that a woman under threat would scream, resist, run away or raise the alert as soon as the opportunity presented itself after the rape. However, expert evidence presented to courts has shown that there is not one, or indeed any ‘right’ response to rape or a threat of rape.

The CEDAW Committee in its deliberations has also challenged these rape myths in a case of a woman raped by her influential and powerful boss who had raped her in a motel after a work function. If she had really been raped, the court argued, why had she accepted a lift home from him afterwards? This was not the expected behavior of a ‘real’ rape victim (Vertido v. Philippines). However, CEDAW noted that victims/survivors of rape respond to violation differently. Requiring one ‘acceptable’ response was itself a form of gender stereotyping. Citing articles 2(f) and 5(a) of the Convention, the Committee recommended that the state train police, prosecutors and judges to ensure that they were not falling back on gender stereotypes in their assessment of the victim’s credibility and in their decision making.

Finally, the African Human Rights system challenged the failure of a state (Egypt) to investigate the deliberate targeting of female journalists who had been unlawfully arrested, sexually harassed, threatened and denied their procedural rights by the authorities. Its analyses of gender-based violence highlighted the gendered stereotyping of women that had led to these actions, in particular the stereotype that women should have no place in the public space of political protest (Personal Rights Project and Interights v. Egypt).

Remaining challenges despite many achievements

The rest of this think piece identifies the undecided understanding of gender as a topic worthy of clarification at the Beijing +20 meeting.

Undecided understandings of gender

As is well known, at the 1995 Beijing Conference there was a failure to reach consensus on the meaning of gender. The discussions were heated. There were those who wanted the definition of gender to reflect the socially ascribed differences placed on the roles of men and women in society. Others, not least the Holy See (the ecclesiastical jurisdiction of the Catholic Church), were adamant that “socially ascribed differences” might lead to the recognition of people with diverse sexual identities. A compromise was reached which is codified in a statement on gender made by the president of the Beijing +20 conference. Attached to the final conference document as an appendix, the statement noted blandly:

"[T]he word "gender" had been commonly used and understood in its ordinary, generally accepted usage in numerous other United Nations forums and conferences; there was no indication that any new meaning or connotation of the term, different from accepted prior usage, was intended in the Platform for Action. Accordingly, the contact group reaffirmed that the word "gender" as used in the Platform for Action was intended to be interpreted and understood as it was in ordinary, generally accepted usage." (Beijing Final Conference Document, p. 218)

The Holy See, which has been given legal recognition to participate as if it were a state under international law (it has observer status), added its own statement noting gender was “grounded in biological sexual identity, male or female.” It went on to say: “The Holy See thus excludes the dubious interpretations based on world views which assert that sexual identity can be adapted indefinitely to suit new and different purposes” (Holy See 1995). This narrow and inadequate view has had a detrimental effect on the construction of gender, not least in the Rome Statute of the International Criminal Court, whose definition of gender is, like that in the Beijing Declaration, inadequate (Rome Statute art.7 (3)).

Times have changed. The CEDAW Committee has made it clear that sexual orientation is to be considered a ground on which discrimination is not permitted. In making this important declaration, the CEDAW Committee joined other United Nations human rights committees, the UN Human Rights Council and regional human rights bodies, including the African Commission on Human and Peoples’ Rights, in reiterating that discrimination on grounds of sexual orientation and gender identity were forbidden.

Given these developments in UN and regional human rights law, the final outcome document of the Beijing+20 meeting must adopt a definition of gender that includes gender identity and sexual orientation. No doubt this statement will be met with outrage from some political camps who will issue voluble denunciations of the definition and its incorporation of sexual diversity and gender identity. Human rights attach to each and every person because they are human. The right to be free from discrimination and to live a life of dignity is fundamental and to be enjoyed, without qualification, by all. In 2012, the UN Secretary General noted: “Some say that sexual orientation and gender identity are sensitive issues. I understand. Like many of my generation, I did not grow up talking about these issues. But I learned to speak out because lives are at stake, and because it is our duty under the United Nations Charter and the Universal Declaration of Human Rights to protect the rights of everyone, everywhere.” — UN Secretary-General Ban Ki-moon to the Human Rights Council, 7 March 2012.

Concluding Reflections

The 1995 Beijing Conference set an ambitious agenda, not the least in recognizing human rights of women. The Platform recognized the gap between norm and practice and asked states to bridge this divide. The intervening 20 years have seen some progress in both the development of new laws to protect women and also attempts to ensure that their rights are respected in practice. Central to this has been the recognition that identifying and eradicating gender stereotypes is key to the transformation of societies around the world.

Looking into the future, it is important that the Beijing +20 outcome document will reflect the socio-cultural and legal changes that have taken place, not least the expansion of the category of gender to encompass sexual orientation and gender identity. We are, after all, “more alike, my friends, than we are unalike” (Angelou, 1990).

REFERENCES
Angelou, Maya. 1990. I Shall Not Be Moved. New York: Random House.

Cook, Rebecca, and Simone Cusack. 2010. Gender Stereotyping: Transnational Legal Perspectives. Philadelphia: Pennsylvania Press.

Holy See. 1995. Final statement at Women’s Conference in Beijing: Statement of Interpretation by the Holy See Delegation Beijing, 15 September 1995.

Holtmaat, Rikki. 2012. “Article 5”. In Freeman, Marsha, Christine Chinkin, and Beate Rudolph, eds. The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary. Oxford Commentaries on International Law. Oxford: University Press.

Case Law
Gonzàlez et al. ("Cotton Field") v. Mexico, Preliminary Objection, Merits, Reparations and Costs, Judgment of November 16, 2009. Inter-Am Series C No. 205, f113-136.

M.C. v. Bulgaria, Eur. Ct. H.R., 39272/98 (2003).

Vertido v. Philippines, Communication No. 18/2008, UN Doc. CEDAW/C/46/D/18/2008 (1 September 2010).

Egyptian Initiative for Personal Rights and Interights v. Egypt, Communication No. 323/2006.

ABOUT THE AUTHOR

Fareda Banda is Professor of Law at SOAS, University of London where she teaches Human Rights of Women and Family Law. She holds a DPhil from University of Oxford and BL Hons, LLB, University of Zimbabwe, 1988. She was a Hauser Global Visiting Professor at NYU in 2009 and 2014. She has also taught in Harare, Kampala, Onati and Oslo and continues to teach women’s rights on the Oxford human rights summer programme. Her publications include Women, Law and Human Rights: An African Perspective (2005); Gender, Minorities and Indigenous Peoples with Christine Chinkin (2004), a number of book chapters and articles on international human rights, women and family laws and a report for the UN OHCHR Mechanism to Address Laws that Discriminate against Women. She is currently co-editing (with Lisa Fishbayn) a book on Gender, Religion and Equality to be published by Routledge.