Guidance Note: Gender and Law

Temporary Special Measures to Promote Gender Equality

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• Publisher: Asian Development Bank
• Year: 2012
• Print ISBN: 9789290927464
• eBook ISBN: 9789290927471
• Edition: 1
• Topic: Business
• Subtopic: Project Management
• Index: Business

Nearly all developing member countries (DMCs) of the Asian Development Bank (ADB) have adopted laws and policies to promote gender equality. However, there is often a reluctance to operationalize these, and/or a lack of knowledge of the appropriate mechanisms. This publication presents a case for the use of temporary special measures as a mechanism to correct gender imbalances and accelerate progress toward gender equality goals. Temporary special measures are a set of proactive measures that include gender-inclusive design features, quotas, and targets in ADB projects. This note is designed to increase understanding of the legal obligations of DMCs to achieve gender equality, and what this means for designing and implementing ADB projects.

Introduction

Temporary special measures (TSM) are a set of positive or proactive affirmative action measures to narrow gender disparities, and promote gender equality and women’s empowerment. TSM are actions included and permitted under international and domestic laws to create and design projects, programs, laws, and policies; and allocate resources to narrow the gaps between men and women in all economic, social, and political spheres.

Nearly all developing member countries (DMCs) of the Asian Development Bank (ADB) have adopted laws and policies to promote and support gender equality and women’s empowerment. All but three ADB member countries¹ have ratified the United Nations’ Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The national laws and policies, combined with commitments under international conventions, require the state to eliminate gender discrimination and to take actions to promote gender equality and women’s empowerment. These actions often include TSM to correct gender imbalances and accelerate progress toward meeting gender equality goals.

Gender-inclusive design features, quotas, and targets in ADB loans and grants to promote women’s increased participation in project activities or access to project benefits are examples of TSM.

This guidance note is designed to increase understanding of DMCs’ legal obligations to achieve gender equality, and what this means when designing and implementing ADB projects.

It also responds to questions from mission teams, executing agencies, and implementing agencies about whether projects with proactive gender measures are in breach of constitutional and legislative equality measures, which require equal treatment between men and women. Including TSM in ADB-financed projects is also good development practice, and supports governments in meeting their own obligations under national laws and policies, as well as international commitments such as CEDAW.

Gender equality is enshrined in the constitutions of most countries. Aside from the constitution, many developing member countries have also enacted specific gender equality legislation

Is gender equality a legal obligation?

Gender equality is enshrined in the constitutions of most countries. Aside from the constitution, many DMCs have also enacted specific gender equality legislation. Examples are the Law of the People’s Republic of China on the Protection of Rights and Interests of Women (2005), the Philippines’ Magna Carta for Women (2010), and The Law of the Republic of Tajikistan on State Guarantees of Equal Rights for Men and Women and Equal Opportunities in the exercise of such rights.² Adoption of such legislation confers an obligation on all parties to support, comply with, and adhere to certain principles and provisions. (For country-specific citation of legislation, see Table 2.)

Why is CEDAW important?

CEDAW is an international treaty requiring state parties (governments) that have ratified it to prevent discrimination against women and promote substantive gender equality in all spheres. Consisting of 30 articles, CEDAW defines what constitutes discrimination against women and sets up an agenda for national action to end gender discrimination and achieve gender equality. It provides the basis for realizing equality between women and men by ensuring women’s equal access and equal opportunities in all aspects of development, including political and public participation, education, health, and employment. State parties agree to take all appropriate measures, including legislation and TSM, so that women can enjoy all human rights, fundamental freedoms, and development opportunities.

CEDAW requires state parties to adopt proactive measures, policies, and strategies to promote equality and empower women. It can also be used as a guiding principle by the courts of law to correct injustices against women as illustrated in the Indian Supreme Court case of Vishaka v. Rajasthan (Box 1).³

Box 1 Vishaka v. Rajasthan (Supreme Court of India)

This was a class action by civil society activists responding to the gang rape of a social worker. India’s Supreme Court used international law (the Convention on the Elimination of All Forms of Discrimination against Women [CEDAW]) to enact guidelines for combating sexual harassment in the workplace, in the absence of domestic legal provisions. It held that, “any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof.” Using CEDAW as a guideline, the court ensured that women would be better protected in the workplace, as violating the court’s standards protecting women would be a breach of the law. The court looked to CEDAW when it said that “[g]ender equality includes protection from sexual harassment and the right to work with dignity.” The court then drafted a detailed sexual harassment code and imposed a duty on employers to prevent sexual harassment in the workplace and to provide a grievance option for employees. CEDAW was used, therefore, to fill a gap in domestic legislation.

Source: All India Reporter. 1997. Supreme Court at 3011.

CEDAW requires state parties to adopt proactive measures, policies, and strategies to promote equality and empower women

How does CEDAW define TSM?

Article 4 of CEDAW covers the use of TSM as a mechanism to address gender disparities and to accelerate progress toward gender equality (Box 2). Under CEDAW, state parties may enter reservations to some provisions so that they are not immediately required to implement those provisions. No DMC has entered a reservation to Article 4. TSM are often also referred to as affirmative action or positive discrimination measures. Specific gender design features, gender targets, and gender-based quotas in ADB projects are a form of TSM. Such measures have been used to reserve seats for women in the legislatures and local councils of many countries, provide scholarships for women, and finance their participation in business opportunities.

Box 2 Article 4 of Convention on the Elimination of All Forms of Discrimination against Women—Temporary Special Measures

1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity, shall not be considered discriminatory.

Source: CEDAW.

Why is substantive gender equality relevant to CEDAW and TSM?

Substantive equality is the type of equality that requires more than not discriminating on the grounds of sex or gender. The substantive model of equality uses the actual conditions of women’s lives, rather than the wording used in legislation (i.e., “formal” equality), as the true measure of whether equality has been achieved. This is the type of equality preferred by CEDAW. The state, thus, must do more than just ensure that no existing policies, laws, projects, and programs directly discriminate against women. It must also take measures, including TSM, to ensure that women actually experience equality in their lives. Substantive equality has special relevance for accelerating gender equality because it attempts to achieve de facto, on the ground, real equality, as opposed to merely formal equality on paper, or de jure equality, which is purely formal legal equality.⁴ TSM promote substantive equality not only for women but also for other marginalized and socially excluded groups, such as indigenous peoples or ethnic minorities.

There is a significant difference between the legal duty to not discriminate on the grounds of sex or gender, and the legal duty to promote and achieve gender equality

What is the difference between not discriminating on the grounds of sex or gender, and actively promoting gender equality?

There is a significant difference between the legal duty to not discriminate on the grounds of sex or gender, and the legal duty to promote and achieve gender equality. The former is a negative legal obligation and the latter is a positive legal obligation. Gender equality laws have both negative and positive obligations. These obligations are two sides of the same coin, equal in the need for compliance. Negative obligations imply a duty to not do something, while positive obligations imply a duty to proactively do something. The latter promotes substantive equality. Negative obligations include ensuring equal employment conditions and labor contracts (the duty to not discriminate). Positive obligations include building in proactive gender design measures, such as minimum percentages or female quotas for electricity or water connections, livelihoods, scholarships, and employment. These are concrete steps and TSM to achieve gender equality. Negative obligations do not promote substantive equality in the long term, whereas positive obligations do. However, both are obligatory and not discretionary. Negative obligations, by themselves do not generally c...

Table of contents

• Front Cover
• Title Page
• Copyright Page
• Contents
• Tables and Boxes
• Abbreviations
• Introduction
• Back Cover