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Part I
Women and the law
Addressing inequality
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1
In pursuit of gender-responsive legislation
Transforming women’s lives through the law
Ramona Vijeyarasa
The latter part of the 20th century witnessed a burgeoning call for neutrality in the law. Scholars and legal practitioners began to question why the traditional – and until then largely accepted – legal ‘he’ should also stand in for ‘she’ (Williams 2008). The call for gender-neutral pronouns had arrived (Schweikart 1998). Alternative language – everything from the use of ‘they’ and ‘them’, both ‘he and she’, or gender-neutral job titles such as ‘chairperson’ – was demanded of law-makers. Legislators stepped up to the challenge (Government of Canada 1999).1 Some legislative bodies even considered gender neutrality a redundant issue: Australia’s Office of Parliamentary Counsel claims to have adopted drafting directions on gender-neutral language as early as 1984 (Office of the Parliamentary Counsel 2019, para. 95). As far as English-speaking legislators were concerned, the ‘battle for neutrality’ had been won by the end of the 20th century. Today, in the majority of legal systems, it is difficult to find legal drafting exclusively using the ‘male’ pronoun.
Despite this apparent success in the widespread adoption of gender-neutral legal language, scholars were quick to point out that a mere linguistic shift is far from what is required to address the widespread gender discrimination that continues to exist in our societies. Sometimes – even often – gender discrimination is embedded in the law itself. A more substantive demand developed: the call for ‘gender-neutral language’ gave way to the demand for ‘gender-neutral legislation’. With the term ‘gender-neutral legislation’, I refer to legislation that makes no distinction on the basis of gender or sex. This notion of ‘gender neutrality’ continues to carry positive connotations today.
However, the efficacy of such ‘gender-neutral legislation’ in eradicating discrimination in the law has been questioned. Research makes clear that in countries, both rich and poor, where governments have adopted gender-neutral language – or even apparently gender-neutral legislation – the result has been ‘anything but neutral’, facilitating (rather than undermining) the perpetuation of gender stereotypes and traditional practices (Halperin-Kaddari and Freeman 2016, p. 185). It is evident that the opposite of ‘neutrality’ is needed. The label ‘gender-neutral’ is too quick to forgive what may be a gender-blind response (Vijeyarasa 2019, p. 278). Obvious differences between men and women are ignored when they ought to be considered in the drafting of laws. This failure to acknowledge difference is further undermined by the ‘inherent bias of those empowered to interpret, apply and enforce law’ (Hevener Kaufman and Lindquist 2018, p. 118). To the contrary, women need to be ‘seen, heard and written as a woman’ in the law (Mooney 2006).
This journey – from men’s law, to ‘neutrality’, to slow acknowledgement of the gender-blind nature of laws in many (if not most) jurisdictions, gives rise to a bigger question: what should be our expectations of the law? Should the law merely paper over entrenched inequalities between men and women – and risk reinforcing the status quo – or should the law play a more fundamental role in correcting discrimination? International Women’s Rights Law and Gender Equality builds on decades of campaigning from women’s rights movements, scholars and practitioners who have challenged the apparent facial gender neutrality of law. This book reinforces the relentless efforts of advocates and strives with them toward the ultimate goal of making the law work better for women. It does so by bringing visibility to the concrete areas of law that fail women and by offering good practice examples of domestic laws that advance women’s rights across the globe and work more effectively for women.
Why the law? Why women?
While it may seem obvious to some that we must continue the struggle for equality and use the law to help us get there, many would ask the question: why the law and why women? Some scholars argue that the very male-centric nature of the law and legal systems is the problem. Often drafted by men and with men in mind, legislation is neither blind to sex – as it so often claims to be – nor objective. As Charlesworth, Chinkin and Smart have powerfully argued in relation to international law (Charlesworth and Chinkin 2000), the international human rights system (Charlesworth 2018) and domestic legal systems (Smart 1989a), at best law excludes women’s perspectives; at worst, law sustains women’s oppression. Many scholars today would stand by Smart’s eloquent critique of the law as being ‘[too] deaf to core concerns of feminism’ (Smart 1989b, p. 2). Why work with a broken system?
Regardless of its limitations, the law remains a powerful tool – one which may reflect a changed society, or which may help to change society (Revell and Vapnek 2020, p. 110). The law determines how society functions; it can shift norms and set new trends. Law shapes how people live (Vijeyarasa 2019, p. 276). The powerful potential of the law to legislate better, and with women in mind, invites us to revisit the law as a solution to gender inequality.
Some may consider this to be overstating law’s potential. Yet if we are in the business of rewriting the law to correct past harms, we must believe in the law’s potential – a potential demonstrated through recent history and evidenced in the chapters which follow. Compulsory education helped shift social views about the need to send both boys and girls to school (Dror 1958). International law played a direct role in the prohibition of polygamy (Committee on the Elimination of Discrimination against Women 1994, paras 14, 39) while simultaneously shifting social attitudes against the practice. In recent times, amendments to law in order to legalise same-sex marriage demonstrate the power of the law to help advance – albeit far from achieve – elements of social and cultural equality for same-sex couples (Hull 2003).
In many legal systems, the law has historically codified women’s secondary status. The law must play its part in correcting this inequality, and remedying the discrimination which has been (and continues to be) suffered by women as a result. This notion of the law’s correctional role encompasses the idea of gender-responsive legislation (Vijeyarasa 2019). This correctional language has been recognised as a legitimate vehicle: for addressing situations where women are victimised or made vulnerable; for facilitating a more women-centred response; and for encouraging an active policy response to – rather than passive elimination of – discrimination (Hevener Kaufman and Lindquist 2018, p. 114).
International Women’s Rights Law and Gender Equality scrutinises the many ways in which gender inequality still manifests in contemporary legislation, and provides an evidence-base to enable legislators and legal systems deliver laws that work for women. It builds on a common definition of gender-responsive legislation in order to set out concrete examples of laws which achieve gender responsiveness, as well as laws which fail to do so. International Women’s Rights Law and Gender Equality also advances a broader project whose ultimate goal is to get good laws on the legislative books in the first place. While the law can only go so far in disrupting the political and economic structures of society, even the harshest critics of law, legal systems and formal equality, acknowledge that law reform can deliver concrete and identifiable benefits, contributing to both symbolic and formal change (Crenshaw 1988, p. 1378).
The use of the term ‘women’ in this book is a political one (Ramji-Nogales 2019, p. 242). It acknowledges that while the world for women today in many countries may be vastly different from several decades ago, there is still much work to be done. According to the World Economic Forum’s Gender Gap Index, at the current rate of progress it will take 108 years to close the global gender gap (World Economic Forum 2018). Highlighting this chasm between where we are and where we want to be is not designed to question the commitment of the many institutions – local, national and international – who have made the achievement of substantive equality between men and women their goal. Rather, it is to illustrate the need for an urgent and more effective solution to accompany the strategies used to date.
These examples also remind us that the term ‘women’ must be understood to encompass women in all their diversity, rather than placing all women into a monolithic category. This diversity speaks not only to discrimination suffered on the basis of sex, but also of other layers of identity such as gender identity, marital and maternal status, disability, ethnicity, race and others. International Women’s Rights Law and Gender Equality responds to this diversity by identifying in the chapters which follow how particular groups of women – especially those who are most marginalised and excluded – experience the law. This intersectional perspective allows us to question who is left out of current legal frameworks and structures (Ramji-Nogales 2019, p. 242) and how this can be improved.
How do we know what makes a law good for women?
The next step in making law work for women is to determine which legislative approaches work effectively to correct discrimination and advance equality. The international human rights system, for example, offers universal standards for women’s rights. One of the most obvious places to look is the Convention on the Elimination of All Forms of Discrimination against Women (United Nations General Assembly 1979) (CEDAW), enacted in 1979, and which entered into force in 1981. Some authors in this collection consider this to be the ultimate pinnacle to which we must strive. At the very least, CEDAW (United Nations General Assembly 1979) offers us concrete considerations for how laws and policies can better take account of gender difference, and how other differences such as race, economic status, maternal and marital status, etc., intersect with sex and gendered norms to give rise to discrimination. There is also a spate of other women’s rights standards which this book draws upon, including the Beijing Declaration and Platform for Action (United Nations 1995) developed at the Fourth World Conference on Women, and the more recent Sustainable Development Goals (United Nations Development Programme 2015).
These international standards form the subject of much critique. Some scholars have illustrated well the limits of what pursuing human rights has achieved for women’s freedoms (Kapur 2018). Throughout this collection, several authors and commentators give voice to these critiques and express legitimate concerns with what are often top-down, male-centric systems and approaches. These contributions shed much-needed light on the problematic nature of the current human rights treaty system, which tends to reinforce binary distinctions between men and women.
Claimants in cases of human rights breaches, for example, are frequently forced to identify with only one form of discrimination (i.e. sex-based). This substantial limitation in the human rights treaty system does not adequately account for the multiple, intersecting and overlapping nature of many women’s experiences of discrimination (Maria Frisso 2019, p. 489). By homogenising groups and obscuring the ways that gender, race, ethnicity, class, sexuality, age, nation, ability and so on can work independently or together to marginalise women and create inequalities within and across groups, the human rights system often fails to adequately respond to the realities of discrimination and inequality (Parisi 2002, p. 574). People are ‘atomized’ into abstract bundles of rights rather than seen as a whole (Hernandez-Truyol 2008, p. 1318).
At the same time, however, CEDAW (United Nations General ...
