By Keyword
Sex & Gender
Discrimination
Australia
McBain v. State
of Victoria & ORS,
(July 28, 2000)
Federal Court of Australia
Keywords: Discrimination-Gender/Sex
Brief Summary: The applicant was a gynocologist who was asked to
provide a patient with in vitro fertilization (IVF) treatment. While otherwise
suitable, the applicant was prevented from providing the treatment to the
patient, a single woman, by the Infertility Treatment Act 1995 (Vic) (the State
Act), which required women undergoing reproductive treatment to be married or
in a de facto relationship. The applicant sought a declaration from the court
that s 8 of the State Act is inoperative because it is inconsistent with s 22
of the Sex Discrimination Act 1984 (Cth) (the Commonwealth Act). Section 8(1)
provides that women who undergo treatment must either be married and living
with their husband on a genuine domestic basis or living with a man in a de
facto relationship. Section 22 prohibits, inter alia, discrimination on grounds
of marital status in the provision of services (subject to the exclusion under
s 32 of treatment that that can only apply to members of one sex).
CEDAW: CEDAW was used to refute the claim of the Catholic Church
(which submitted an Amicus Brief). The Catholic Church contended that the term
"services" could be read consistently with Section 8. The court noted
that since the Sex Discrimination Act was enacted to give effect to CEDAW, and
the term could not be read consistently with CEDAW, the terms of CEDAW must
prevail.
Full Text
AB v. Registrar
of Births, Deaths and Marriages, (August 16, 2006)
Federal Court of Australia
Keywords: Discrimination-Gender/Sex; Sexual Orientation
Brief Summary: Applicant was a married person who had undergone a sex
change operation and subsequently applied for alteration of the birth record. The
Registrar refused registration based on an Australian law which did not allow
alteration of birth records for married persons.
CEDAW: The court held that Australia's Sex Discrimination Act was
meant to give legal effect to CEDAW but ultimately held that discrimination on
the basis of "marital status" applied only to laws which
discrimination against women not to laws which burden both sexes equally.
Full Text
U v. U, (September 5, 2002)
High Court of Australia
Keywords: Discrimination-Gender/Sex
Brief Summary: The case involved a custody dispute in which the appellant
mother sought leave to move to India from Australia with her child who would
reside there permanently in her mother's care; the respondent cross-petitioned
that the child remain in his permanent custody in Australia.
CEDAW: In determining how custody should be decided, the court
acknowledged that the wishes of the child to remain in contact with the father
is a legitimate concern, however in today's society such contact does not
require physical face to face contact. To require such contact would be to
"impose serious deprivations upon the human rights of custodial parents,
who are mostly women...[and] to entrench gendered social and economic
consequences of caregiving upon women in a way that is contrary to the
Convention on the Elimination of All Forms of Discrimination against Women to
which Australia is a signatory. That Convention requires that such
discrimination and inequality should be eliminated from the law of this
country."
Full
Text
Jacomb v.
Australian Municipal Administrative Clerical and Services Union, (September 24, 2004)
Federal Court of Australia
Keywords: Discrimination-Gender/Sex
Brief Summary: This discrimination case is a challenge to union rules
which imposed inflexible quotas for the election of women representatives. The
rules were adopted pursuant to Australian domestic law enacted to give effect
to CEDAW. The rules were challenged on the basis that they were discriminatory
in nature and did not meet the requirements of a "special measure"
within the meaning of the Sex Discrimination Act.
CEDAW: The provisions of CEDAW as well as the purpose of the
Convention were discussed in depth by the court. The court also examined how
several other countries have dealt with the problem of achieving equality
through facially discriminatory means. The court ultimately held that the union
laws were discriminatory against men, however in view of the SDA, "read as
a whole can render the rules lawful for so long as the rules are required to
achieve substantive equality for women."
Full
Text
Ferneley v.
Boxing Authority of New South Wales and Another, (December 10, 2001)
Federal Court of Australia
Keywords: Discrimination-Gender/Sex
Brief Summary: Applicant was a professional boxer who applied to the
Boxing Authority of New South Wales for registration, but was denied on the
basis of her gender; the Boxing and Wrestling Control Act 1986 stated that only
men could apply to be registered. Applicant complained to the Human Rights and
Equal Opportunity Commission; the complaint was rejected. She later appealed to
the Federal Court alleging that her denial was discrimination in contravention
of the Sex Discrimination Act 194.
CEDAW: The court recognized that the purpose of the Sex
Discrimination Act was to give "effect to [CEDAW]...and prohibits sex
discrimination in various fields of public life, including the provision of
services. The rights set forth in CEDAW are intended to apply throughout
Australia and guarantee that women will be treated on an equal basis with men. Australia
is internationally obliged to remove such legislation and other administrative
barriers which prevent the equal treatment of men and women in relation to
relevant fields of activity." However, the court dismissed the applicant's
petition finding that other provisions of the SDA were controlling in the
instant case.
Full Text
Gardner v. All
Australia Netball Assn Ltd,
(March 13, 2003)
Federal Magistrates Court of Australia
Keywords: Discrimination-Gender/Sex
Brief Summary: Applicant alleges that she was injured by the action
of the AANA when they posed an interim ban on pregnant women playing in a
netball competition. Applicant later obtained an injunction permitting her to
play, but she missed several competitions in the meantime. AANA admitted the
ban discriminated against pregnant women but stated that an exemption in the
Sex Discrimination Act of 1984 controlled.
CEDAW: The Court discussed CEDAW as it related to the meaning and
purpose of the Sex Discrimination Act (SDA) and concluded that prohibiting
applicant from playing in the competition due to pregnancy was violative of the
SDA as written. The court left to the legislature whether or not to expand the
exemptions to the SDA but abstained from judicial legislation.
Full Text
Thomson v. Orica
Australia Pty Ltd,
(July 30, 2002)
Federal Court of Australia
Keywords: Discrimination-Gender/Sex, Employment
Brief Summary: Applicant, Thomson, sued Orica alleging discrimination
on the grounds of sex and pregnancy. Applicant, an Orica employee, took
maternity leave from the company intending to return to work; she alleges,
however, that the circumstances of her return were such that it amounted to a
repudiation of her contract of employment and unlawful discrimination under the
Sex Discrimination Act.
CEDAW: CEDAW mentioned in conjunction with the applicability of the
SDA.
Full Text
Belize
Roches v. Wade, (April 30, 2004)
Supreme Court of Belize
Keywords: Discrimination-Gender/Sex; Marital Status
Brief Summary: The applicant was dismissed from her post as a teacher
in a Roman Catholic School upon the grounds that she failed to "live
according to Jesus' teaching on marriage and sex"--namely, the applicant
was pregnant yet not married at the time of her dismissal. Applicant instituted
this case against the Managing Authority of Catholic Public Schools alleging
that her dismissal amounted to sexual discrimination in violation of the Belize
Constitution.
CEDAW: The court acknowledged that Belize had an affirmative duty to
eliminate discrimination against unmarried pregnant women as a signatory to
CEDAW. Specifically, Article 11, paragraph (2) subparagraph (a) of CEDAW states
that "In order to prevent discrimination against women on the grounds of
marriage or maternity and to ensure their effective right to work, State Parties
shall take appropriate measures: To Prohibit...dismissal on the grounds of
pregnancy or of maternity leave and discrimination in dismissals on the basis
of marital status." The court therefore held that respondant's actions
were in violation of CEDAW, and to allow the action to stand would result in a
material breach of Belize's obligations under CEDAW.
Full Text
Botswana
Dow v.
Attorney-General of Botswana, (1992)
Botswana High Court
Keywords: Discrimination-Gender/Sex
Brief Summary: Dow, a Botswanan activist married to an American man,
challenged the Botswana Citizenship Act of 1984 which, in accordance with
customary law, declared that the nationality of any child born in Botswana
would be determined exclusively by the nationality of the father. Two of Dow's
children, born in Botswana, required residency permits to stay in the country,
were excluded from voting, and were denied subsidized University education. Dow
argued that the Act denied her and her children equal protection and that the
Act discriminated on the basis of sex although the Constitution did not
prohibit such discrimination.
CEDAW: The High Court held that although Botswana had not yet
ratified CEDAW, the Constitution should be interpreted to prohibit
discrimination on the basis of sex. When Botswana ratified CEDAW in 1995, it
amended the Citizenship Act to give equal rights to men and women with respect
to the citizenship of thier children.
Case brief from CEDAW At Work
in "CEDAW: Treaty For The Rights of Women"
Canada
Chan v. Canada
(Minister of Employment and Immigration), (October 19, 1995)
Supreme Court
Keywords: Discrimination-Gender/Sex; Sexual Violence
Brief Summary: Appellant sought Convention refugee status based on the
likelihood of her forced sterilization if she returned to China because of her
breach of the one-child rule.
CEDAW: The Court accepted the premise that "the right...to
decide freely and responsibly the number, spacing and timing of their
children" was a basic human right recognized in international law in the
ICCPR, and CEDAW to both of which Canada and China adhere.
Full Text
Fiji
S v. Bechu, (December 2, 1999)
Magistrate's Court
Keywords: Discrimination-Gender/Sex; Sexual Violence
Brief Summary: Bechu was charged with rape of his former girlfriend
contrary to ss 149 and 150 of the Fijian Penal Code. He admitted in a police
interview that he had committed the offence and that he had done so because he
was drunk. He pleaded not guilty on the grounds that he believed that the
victim had consented to sexual intercourse.
CEDAW: The Court declared that women, being equal to men, must not be
discriminated on the basis of gender. The holding chastised the lower Court,
announcing: "Men should be aware of the provision of 'Convention on the
Elimination of all forms of Discrimination against Women' (CEDAW), which our
country had ratified in 1981. Under the Convention the State shall ensure that
all forms of 'discrimination against women' must be eliminated at all costs.
The Courts shall be the watchdog with this obligation. The old school of
thoughts, that women were inferior to men; or part of your personal property,
that can be discarded or treated unfairly at will, is now obsolete and no
longer accepted by our society."
Full Text
Guatemala
Guatemala
Constitutional Court Case No. 936-95, (1996)
Constitutional Court
Keywords: Discrimination-Gender/Sex
Brief Summary: The Constitutional Court examined a claim which
alleged that certain provisions of the penal code treated women and men
differently and that these provisions contradicted the equality guaranteed to
all by the Constitution.
CEDAW: The Court upheld the challenge and further declared that his
"represented a failure by Guatamala to fulfill its obligations under CEDAW
and other international instruments."
Full Text
(Searchable Database in Spanish); Case brief from CEDAW At
Work in "CEDAW: Treaty For The Rights of Women"
Hong
Kong
Secretary for
Justice & ORS v. Chan Wah & ORS, (December 22, 2000)
Court of Final Appeal
Keywords: Discrimination-Gender/Sex
Brief Summary: The dispute centered on election procedures in two
villages which prevented non-indigenous people from voting or holding office.
The procedures also discriminated against male spouses in that a non-indigenous
woman married to an indigenous man could vote, but the converse was not true.
The court dismissed the appeals but set forth a list of criteria which
electoral proceedings had to meet in order to accord with the Hong Kong Bill of
Rights.
CEDAW: Referenced Only. CEDAW is not mentioned explicitly in the
text, but is listed under documents referred to.
Full Text
Equal Opportunities
Commission v. Director of Education, (June 22, 2001)
Court of First Instance
Keywords: Discrimination-Gender/Sex
Brief Summary: The case centered around an Ordinance carried out by
the Director of Education for the transfer of students from primary to
secondary school. Each student received a score based upon subjects taught and
internally administered aptitude tests. Students were then placed in three
separate bands based on their scores, with students in the top band having a
higher chance of receiving the school transfer of his or her choice. Because
female students often scored higher than male students, the Department
introduced a scaling system whereby boys and girls were ranked separately. The
result was that the scores of the boys were boosted and those of the girls
reduced. Applicants alleged that the 'skewing' of the results in this manner
resulted in unequal treatment and thus constituted gender discrimination.
CEDAW: The Court acknowledged that the Convention on the Elimination
of All Forms of Discrimination Against Women ('CEDAW') was extended to Hong
Kong in 1996 and "Article 10 of the Convention makes it plain that
stereotyped concepts of both men and women are in themselves, if not
discriminatory, at least the wellspring from which discrimination flows."
Article 10 and Article 2 of CEDAW obliges all State parties "[t]o adopt
appropriate legislative and other measures, including sanctions where
appropriate, prohibiting all discrimination against women...[t]o establish
legal protection of the rights of women on an equal basis with men and to
ensure through competent national tribunals and other public institutions the
effective protection of women against any act of discrimination." The
Ordinance must, therefore, be read to comply with the terms of CEDAW and as
such it cannot rely on "broad assumptions, even if statistically
well-founded, that categorize women according to stereotypes. Even if such
broad assumptions have some general or statistical validity, they still
derogate from the rights of the individual." If girls are treated
unequally it is "due solely to the fact that they are girls. But for that
fact they would have enjoyed a better choice of secondary school." Such
gender classifications are in direct conflict with the directives of CEDAW.
Full Text
India
Municipal
Corporation of Delhi v. Female Workers (Muster Roll), (March 8, 2000)
Supreme Court of India
Keywords: Discrimination-Gender/Sex, Employment
Brief Summary: Female workers of the Corporation sought maternity
leave under the Maternity Benefit Act 1961 which was denied because they were
not "regular" employees. The court held that nothing "contained
in the Act . . . entitle[d] only regular women employees to the benefit of
maternity leave."
CEDAW: As India is a signatory of CEDAW, Article 11 of the Convention
which governs marriage and maternity must "be read into the contract of
service" between the Corporation and the women employees; "and so
read these employees immediately become entitled to all the benefits conceived
under the Maternity Benefit Act 1961."
Full Text [No Link as of Yet (LEXIS ONLY)]
Githa Hariharan
& Anor v. Reserve Bank of India & Anorand, (February 17, 1999)
Supreme Court of India
Keywords: Discrimination-Gender/Sex, Marital Status, Religion
Brief Summary: Challenge to Hindu law which held that a mother could
be the guardian of a child "after" the father. The court resolved the
situation by holding that "after" did not exclusively mean death but
could include a variety of situations.
CEDAW: The court stated, "India is a signatory to CEDAW...[t]he
interpretation...placed on s6(a) gives effect to the principles contained in
these instruments. The domestic courts are under an obligation to give due
regard to international conventions and norms for construing domestic laws when
there is no inconsistency between them."
Full
Text
Vishaka &
Ors v. State of Rajasthan & Ors, (August 13, 1997)
Supreme Court of India
Keywords: Discrimination-Gender/Sex
Brief Summary: Following a brutal gang rape of a publicly-employed
social worker in a village in Rajasthan, a group of activists and NGO's filed a
class action under Art 32 of the Constitution seeking the court's enforcement
of the fundamental rights provisions relating to working women, and India's
international obligations under Arts 11 and 24 of the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW).
CEDAW: Any international convention not inconsistent with the
fundamental rights guaranteed in the Constitution and in harmony with its
spirit must be used to construe the meaning and content of the constitutional
guarantee and to promote its object; this is now an accepted rule of judicial
construction. It follows that Arts 11 and 24 of CEDAW, General Recommendations
Nos 22, 23 and 24 of the CEDAW Committee, relating to sexual harrassment in the
workplace, may be relied upon to construe the nature and ambit of the gender
equality guarantee and, since the guarantee includes protection from sexual
harassment and the right to work with dignity, to formulate preventive
guidelines. The court issued a series of guidelines to be observed at all
workplaces or other institutions for the preservation and enforcement of the
right to gender equality of working women.
Full Text
Apparel Export
Promotion Council v. A K Chopra, (January 20, 1999)
Supreme Court of India
Keywords: Discrimination-Gender/Sex, Employment
Brief Summary: Sexual harassment case. Appellant alleged attempted
sexual molestation, but because no actual molestation had occurred, appellant
was dismissed. The court held that this was error and any distinction between
attempted and actual molestation "rebel[led] against realism."
CEDAW: The court stated that the message of CEDAW and other
international agreements was to direct state parties "to take appropriate
measures to prevent discrimination of all forms against women besides taking
steps to protect the honour [sic] and dignity of women." Such
international agreements must be applied when there is no inconsistency between
the conventions and the "norms and the domestic law occupying the
field."
Full Text
Masilamani
Mudaliar & Ors v Idol of Sri Swaminathaswami Thirukoil & Ors, (January 30, 1996)
Supreme Court of India
Keywords: Discrimination-Gender/Sex
Brief Summary: A Hindu man bequeathed certain property to his wife S
and his cousin's widow J, for whom he was duty-bound to provide maintenance.
The property was to be shared equally by S and J but not sold during their
lifetimes. His will further provided that, should one predecease the other, the
survivor would have the right to enjoy the property 'in its entirety' and that
it should be held in trust after both their deaths for religious and charitable
purposes. After J died, a power of attorney holder appointed by S arranged for
the property to be sold to the respondents. This was challenged by
beneficiaries of the trust on the basis that, at the time of sale, S had only
limited rights to the property under s 14(2) of the Hindu Succession Act. Section
14, which provides that 'Any property possessed by a female Hindu, whether
acquired before or after the commencement of this Act, shall be held by her as
full owner thereof and not as a limited owner,' is limited by s 14(2) which
provides that, inter alia, 'Nothing contained in sub-section (1) shall apply to
any property acquired by way of gift, Will or other instrument.' The High Court
held that S did not have full ownership of the property. The respondents
obtained special leave to appeal.
CEDAW: In allowing the appeal, the court held that, amongst other
things, the Convention for the Elimination of All Forms of Discrimination
against Women (CEDAW) obliges India to prohibit all gender-based discrimination
(Art 2) and makes specific mention of property issues (Art 16).
Full
Text
Valsamma Paul v.
Cochin University & Ors; Kerala Public Service Commission v. Dr. Kanjamma
Alex & Anor,
(January 4, 1996)
Supreme Court of India
Keywords: Discrimination-Gender/Sex
Brief Summary: Apellant, a member of the "forward class",
married a member of a "backward class." The Constitution of India
permits the State to make special provisions for members of any "backward
class" despite the provisions of non-discrimination. Appellant applied for
and obtained a lecturing post reserved for members of the "backward
classes." Appellant's post was challenged on the theory that appellant did
not assume her husband's class status and was therefore not entitled to the
reserved post. Appellant argued that the reservation violated the guaratees of
non-discrimination and equal opportunity.
CEDAW: Appeal dismissed. Affirmative action is necessary to assist
those suffering from social and economic inequality. CEDAW protects the right
of the State to enact measures enabling a woman's social mobility and
integration.
Full Text [From ???]
Kenya
In re Wachokire, (August 19, 2002)
Chief Magistrate's Court at Thika
Keywords: Discrimination-Gender/Sex
Brief Summary: Jane Watiri petitioned the court to award her one-half
of a parcel of land that belonged to her deceased father on which she lived
with her four children. Her brother objected, arguing that he had cultivated a
larger portion of the land during his father's lifetime than his sister and
therefore was entitled to that larger portion. Under Kikuyu customary law, an
unmarried woman like Watiri lacked equal inheritance rights because of the
expectation that she would get married.
CEDAW: The court held that this customary provision discriminated
against women in violation of Section 82(1) of the Kenyan Constitution, which
prohibits discrimination on the basis of sex. It also violated Article 18(3) of
the Banjul Charter and Article 15(1)-(3) of the Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW), which provide for legal
equality between men and women. Watiri and her brother were each awarded an
equal share of their father's property.
Case Brief from International Association of Women
Judges
Malaysia
Beatrice A/P at
Fernandez v. Sistem Penerbangan Malaysia & ORS, (March 11, 2003)
Chief Magistrate's Court at Thika
Keywords: Discrimination-Gender/Sex, Employment
Brief Summary:The applicant in this case was employed by the
respondent as a flight stewardess. The collective agreement required all
stewardesses to resign on becoming pregnant. The applicant refused and was
ultimately terminated. Applicant commenced the action, alleging that the
collective agreement discriminatory and therefore violated article 8 of the
Federal Constitution. The court dismissed applicant's complaint, declaring,
amongst other things, that the article 8 could not be expanded to include
within its scope the collective agreement.
CEDAW:The applicant argued that CEDAW was applicable to the terms and
conditions of the collective agreement. The court failed to address the
applicability of CEDAW in the final judgment.
Full
Text
Namibia
Mllr v.
President of the Republic of Namibia and Another, (May 21, 1999)
Supreme Court, Namibia
Keywords: Discrimination-Gender/Sex, Marital Status
Brief Summary:The case involves a male who immigrated to Namibia and
sought to assume the surname of his wife. While a wife was able to assume the
surname of her husband without difficulty, the inverse was not true. Plaintiff
was denied relief and appealed. The court held that such procedures were
necessary in order to ensure proper administration by the state.
CEDAW:Appellant relied on CEDAW in order to demonstrate the
discriminatory nature of the laws in question. The court dismissed CEDAW
stating that "[s]uch Conventions are of course subject to the Constitution
and cannot change the situation."
Full Text (LEXIS ONLY)
Nepal
Dhungana v. the
Government of Nepal,
(August 2, 1995)
Supreme Court of Nepal
Keywords: Discrimination-Gender/Sex
Brief Summary: The case challenged a Nepalese law which entitled sons
to a share of their father's property at birth, but daughter could only obtain
the same share if they remained unmarried until the age of 35.
CEDAW: The court referenced the state's obligations under CEDAW as it
directed the Nepalese Government to draft new, non-discriminatory legislation.
Case brief from CEDAW At Work
in "CEDAW: Treaty For The Rights of Women"
New
Zealand
New Zealand Van
Lines Ltd v. Proceedings Commissioner, (August 3, 1994)
High Court, Rotorua
Keywords: Discrimination-Gender/Sex, Employment
Brief Summary: Originally a sexual harassment claim, appellant
objected to an order from the court requiring appellant's company prevent
sexual harassment and to implement an anti-sexual harassment policy program.
CEDAW: The complaint arose under the Human Rights Commission Act
1977. CEDAW was offered by the respondent as a document relevant to the
interpretation of the Act. The court held that CEDAW was irrelevant in this
case as the Act predated the ratification of CEDAW.
Full Text (LEXIS ONLY)
Coburn v. Human
Rights Commission,
(June 3, 1994)
High Court, Auckland
Keywords: Discrimination-Gender/Sex, Marital Status; Other
Brief Summary: The court examined whether a particular retirement
benefits scheme was discriminatory within the meaning of the Human Rights Act
1993.
CEDAW: CEDAW mentioned as relevant in determining the meaning of the
Human Rights Act 1993.
Full Text (LEXIS ONLY)
Nigeria
Muojekwo &
Ors v Ejikeme & Ors,
(December 9, 1999)
Court of Appeal (Enugu)
Keywords: Discrimination-Gender/Sex
Brief Summary: R died intestate in 1996 without any surviving
children. The appellants were R's two great grandsons, and his granddaughter,
the third appellant. The granddaughter was born to R's daughter V and the great
grandsons were born to V's two daughters. The appellants claimed that the Nnewe
custom of Nrachi had been performed for V and accordingly the appellants were
entitled to inherit R's property. The Nrachi custom enabled a man to keep one
of his daughters perpetually unmarried under his roof in order to raise
children, especially males, to succeed him. Any such daughter took the position
of a man in the father's house and was entitled to inherit her father's
property, and any children born to the woman would automatically be part of the
father's household and accordingly entitled to inherit. A different custom,
Ili-Ekpe, provided that where a man has no surviving male issue, including the
daughter in respect of whom Nrachi was performed, and her children, the man's
brother or his male issue are entitled to inherit. The respondents, five male
members of R's brother's family, claimed that Nrachi was performed for V's
sister C, who had died childless, and not V. They contended that when C died
R's family lineage became extinct, and they, rather than the appellants, should
inherit R's property. The legal action began when the respondents, without the
appellants' permission, entered the compound once belonging to R. The
appellants laid claim to a statutory right of occupancy over R's estate and
requested an injunction restraining the respondents from trespassing.
CEDAW: Article 5 of the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) calls on States Parties to modify social
and cultural patterns of conduct in order to eliminate prejudices, customs and
practices based on the inferiority or superiority of either sex. V is a victim
of such prejudices.
Case Brief from Interights
Pakistan
Mst Humaira v.
Malik Moazzam Ghayas Khokhar & Ors, (February 18, 1999)
High Court, Lahore
Keywords: Discrimination-Gender/Sex
Brief Summary: Petitioner, Humaira was arrested and beaten by the
police while attempting to leave Pakistan a man she claimed to be her husband.
Her family claimed that she was the wife of Khokhar, although Humaira
maintained that her alleged marriage to Khokhar was a sham, formed under duress
and after her marriage to the other man and therefore the former marriage was
void. Her father instituted a criminal case gainst her under Hudiid law which
includes the offense of adultery.
CEDAW: In quashing the criminal indictment against the petitioner,
the court held a woman can contract marriage of her own free will and a
marriage performed under coercion is not valid under the law. The court also
declared that as a member of the International Committee of Nations, Pakistan
must respect the international human rights instruments to which it is a party,
in particular Article 16 of CEDAW.
Full Text
South
Africa
Bhe and Others
v. Magistrate, Khauelitsha and Others, (October 15, 2004)
Constitutional Court
Keywords: Discrimination-Gender/Sex; Family/Marriage
Brief Summary: Challenge to the "Black Administration Act 38 of
1927" which excluded women and extra-marital children from inheriting
property.
CEDAW: The court acknowledges that given the development "of
African communities into urban and industrialized communities, and the role
that women play in . . . society, the exclusion of women from succeeding to the
family head can no longer be justified." These changes must also be
examined against international conventions such as CEDAW, to which South Africa
is a signatory, which require South Africa "to ensure, amongst other
things, the practical realisation [sic] of the principle of equality between
men and women and to take all appropriate measures to modify or abolish
existing laws, regulations, customs and practices that constitutes
discrimination against women."
Full Text (LEXIS ONLY)
Brink v.
Kitshoff NO,
(May 15, 1996)
Constitutional Court
Keywords: Discrimination-Gender/Sex
Brief Summary: The court examined the constitutionality section 44
(1) and (2) of the Insurance Act 27 of 1943 which limits the amount of recovery
available on a life insurance policy ceded to a wife; the court ultimately
found that the provisions discriminated unfairly against women and therefore
violated section 8 of the Interim Constitution.
CEDAW: The court only mentions CEDAW as one of the many international
conventions to which South Africa is a party and which prohibit various forms
of discrimination.
>Full Text
Tanzania
Ephrahim v.
Pastory,
(1990)
High Court of Tanzania
Keywords: Discrimination-Gender/Sex
Brief Summary: The petitioner challenged a Tanzanian law, pursuant to
the Haya custom, that forbade her from selling customary land that her father
had bequeathed her through a will.
CEDAW: The High Court cited the Constitution and international
treaties such as CEDAW to outlaw this custom, holding that it was discriminatory
as it violated women's property rights. The court declared: "the
principles enunciated in the above named documents [including CEDAW] are a
standard below which any civilzed nation will be ashamed to fall."
Case brief from CEDAW At Work in
"CEDAW: Treaty For The Rights of Women"
Chilla v. Chilla, (January 6, 2004)
High Court of Tanzania at Dar Es Salaam
Keywords: Discrimination-Gender/Sex
Brief Summary: Ivona Chilla, sister of the deceased, filed suit
objecting to the appointment of Demetria Chilla, the decedent's wife, as
administrator of the decedent's estate. She further argued that she should have
custody over the decedent's son because his mother was a widow and would be
dependent on relatives. The Judge rejected the appellant's custody claim,
holding that under the welfare of the child embodied in Article 3 of the
Convention of the Rights of the Child (CRC), the respondent was the best person
to have custody of the boy as she was his mother and had cared for him since
his birth.
CEDAW:The Judge further held that the appellant's argument that the
respondent wife had no right to serve as administrator because she was not
chosen to do so by her husband's clan was contrary to the equality provisions
of Articles 13, 19, and 26 of the Tanzanian Constitution and Articles 2 and 16
of CEDAW. In addition, the judge noted that the trial magistrate's gratuitous
finding that only male children can inherit was both irrelevant and contrary to
the Tanzanian Constitution, which bars gender discrimination in all aspects.
She dismissed the appeal with costs.
Case brief from International Association of Women
Judges
Mtefu v. Mtefu, (January 20, 2003)
High Court of Tanzania at Dar Es Salaam
Keywords: Discrimination-Gender/Sex
Brief Summary:Appellant husband argued that the trial court erred in
granting the parties a divorce on grounds of his adultery and cruelty and in
ordering the equal division of the marital property. The Judge rejected the
appellant's argument that the respondent had consented to the adulterous affair
and found that the appellant was cruel in his adultery and in having his wife
arrested when she protested the affair. The Judge also rejected the appellant's
claim that the respondent's housework was a purely conjugal obligation that did
not contribute to the marital property, explaining that such arguments are a
"clear reflection of the violence and discrimination which a woman has
lived with in the society for years" and that domestic services require
recognition and compensation.
CEDAW:The Judge stated that awarding all of the marital property to
the appellant husband would be contrary to the equal protection provision of
Article 13(1) of the Tanzanian Constitution and held that the trial court's
equal division of marital property was proper and consistent with the
principles of nondiscrimination and human dignity found in Article 9(f) and
13(1) of the Constitution of Tanzania, Article 15 of CEDAW, and the UDHR.
Case brief from International Association of Women
Judges
Ndossi v. Ndossi, (February 13, 2003)
High Court of Tanzania at Dar Es Salaam
Keywords: Discrimination-Gender/Sex
Brief Summary:The appellant was appointed the administrator of the
estate of his deceased brother by the primary trial court. The widow of the
deceased successfully challenged that appointment in the appellate district
court. The brother of the deceased appealed, seeking restoration of the primary
court decision.
CEDAW:The Judge held that the widow was entitled to administer the
estate on behalf of her children under the Constitution of Tanzania, which
provides that "every person is entitled to own property and has a right to
the protection of that property held in accordance of the law." She
further held that the Article 9(a) and (f) of the Constitution recognizes human
rights by requiring "that human dignity is preserved and upheld in
accordance with the spirit of the Universal Declaration of Human Rights."
This clause generally domesticated human rights instruments ratified by
Tanzania, including the anti-discrimination principles of CEDAW, Article 2(b) &
(f), and the best interest of the child principle found in Article 3 of the
CRC. She found that these provisions protect widows and children from
"uncouth relatives prying and/or attempting to alienate the estate of
deceased fathers and mothers under the shield of custom."
Case brief from International Association of Women
Judges
Njobeka v.
Mkorogoro,
(July 13, 2001)
High Court of Tanzania at Dar Es Salaam
Keywords: Discrimination-Gender/Sex
Brief Summary: Respondent husband issued a talak to appellant wife,
divorcing her under Islamic law. BAKWATA, the National Muslim Council of
Tanzania, confirmed the talak and advised the parties that respondent husband
should pay his wife Tsh 500,000 as a parting gift. When the respondent failed
to pay, the appellant filed civil matrimonial proceedings in the primary court.
The primary court issued a decree of divorce and ordered the respondent to pay
Tsh 500,000, on the ground that this had been the agreement between the
parties. On appeal, the appellant argued that the primary court's award was
inadequate because it failed to take into account both parties' contributions
to the marital property.
CEDAW: The Judge held that the primary court erred in adopting the
relief recommended by BAKWATA. She noted that BAKWATA is a reconciliation
council; once reconciliation fails, its authority ends. The primary court erred
by failing to provide the appellant an effective remedy in accordance with the
principle of equal protection of the law guaranteed by Article 13(1) of the
Tanzanian Constitution. Moreover, the primary court's decision was contrary to
Article 2(a) of CEDAW, which requires state parties to embody the principle of
equality before the law in their national Constitutions and ensure the
practical realization of that principle. The Tanzania Constitution expressly
recognizes the UDHR, which is a source of all other international treaties
dealing with human rights. The Judge ordered that the appellant be awarded one
of the two houses the couple had jointly acquired as her share of the
matrimonial assets.
Case brief from International Association of
Women Judges
Jonathan v.
Republic,
(September 21, 2001)
High Court of Tanzania at Dar Es Salaam
Keywords: Discrimination-Gender/Sex
Brief Summary: Appellant Jonathan, with 3 companions armed with
sticks and machetes, forcibly seized a 23-year-old woman from her home, took
her to his house, and raped her. The appellant claimed that his conduct had
been permissible as a traditional marriage under customary norms.
CEDAW: The Judge found that the sexual encounter was violent and
nonconsensual and held that without volition, there could be no marriage
between the parties under Tanzania's Law of Marriage Act, which provides that
"[m]arriage means the voluntary union of a man and a woman." The
Judge held that the complainant was further protected by Article 4 of the
DEVAW, which calls upon States to reject custom, tradition, or religion as
excuses to avoid their obligation to protect and offer adequate relief to women
victims of violence; Article 14 of the UDHR, which requires volition and
consent for a valid marriage; Article 16(b) of CEDAW, which guarantees the
right to equality in entering into marriage and freely choosing one's spouse
with free and full consent; and Article 23 of the ICCPR, which guarantees the
same. The court thus held that the appellant was correctly convicted of rape
for the complainant "never consented to the appellant carnally knowing her
nor marrying her under the obnoxious customary practice of grabbing women,
locking them up, and sexually assaulting them in the name of Chagga customary
marriage."
Case brief from International Association of
Women Judges
Mohamed v.
Makamo,
(June 8, 2001)
High Court of Tanzania at Dar Es Salaam
Keywords: Discrimination-Gender/Sex
Brief Summary: Appellant Guliya Mohamed appealed the decision of the
district court awarding the appellant wife 5 percent of the marital property
and the husband 95 percent upon their divorce. The Judge found that the
respondent had introduced no evidence of his own contribution to the property.
She found that "With greatest respect to the trial magistrate the decision
is discriminatory and a reflection of stereotyped concepts of the roles of man
and woman. The appellant was given 5 percent division because she is a woman
and women are taken to be inferior in all respects to men."
CEDAW: The Judge held that this decision was contrary to Section 114
of the Law of Marriage Act and Article 13(1) of the Constitution of Tanzania,
which guarantees equal protection of the law and which is a reflection of
Article 7 of the UDHR and Article 15 of CEDAW. Consequently, the Judge ruled
that appellant wife should be awarded 50 percent of the assets.
Case brief from International Association of Women
Judges
Uganda
Uganda v. Matovu, (October 21, 2002)
High Court of Uganda at Kampala
Keywords: Discrimination-Gender/Sex
Brief Summary: Defendant Peter Matovu was indicted on charges of defilement.
The Judge declined to apply the common law rule that where a victim alleges
that the accused committed a sexual offense against her, the court must warn
itself that it is dangerous to act upon the uncorroborated evidence of the
victim and before so acting must satisfy itself that the victim is a truthful
witness. He explained that the rule discriminated against women, who were the
most frequent victims of sexual offenses.
CEDAW: The law was therefore inconsistent with Uganda's Constitution
and international law obligations, particularly Article 1 of CEDAW. He noted
that "under Article 21 of the Constitution that proclaims equality of all
persons under the law, equal protection of the law, and prohibition against
discrimination on the ground of sex, Uganda enacted the heart of the above
international instruments in one stroke [and t]herefore Uganda has the
obligation to give effect to the contents of those international
instruments." The Judge held that the discriminatory rule was unconstitutional
and therefore null and void.
Case brief from International Association of Women
Judges
United
Kingdom
R (on the
application of Hooper and Others) v. Secretary of State for Work and Pensions, (February 14, 2002)
Queen's Bench Division (Administrative Court)
Keywords: Discrimination-Gender/Sex; Other
Brief Summary:Case brought by widowers alleging discriminatory
practices in government social security benefits; widowers were not permitted
to receive the same benefits as widows from their deceased spouses.
CEDAW: The Court acknowledged that the UK was a party to CEDAW, an
international agreement which recognized everyone's right to receive social
security benefits.
Full
Text
R v. Secretary
of State for Trade and Industry, (April 26, 2004)
Queen's Bench Division
Keywords: Discrimination-Gender/Sex; Sexual Orientation; Other
Brief Summary: Claim brought challenging certain provisions of the
Employment Equality (Sexual Orientation) Regulations 2003 which exempted
organized religion from the prohibition on the grounds of sexual orientation.
CEDAW: CEDAW cited as an international agreement which recognized
equality before the law.
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EM (Lebanon) v.
Secretary of State for the Home Department, (November 21, 2006)
Court of Appeal (Civil Division)
Keywords: Discrimination-Gender/Sex; Other
Brief Summary: Claimant is appealing a removal decision following her
asylum claim on the grounds that the return of claimant and her son to Lebanon
would violate her right to family life.
CEDAW: Claimant uses the provisions of CEDAW to strenghten her human
rights claim under English law. The court does not dispute the binding nature
of the documents but finds that the evidence at hand does not rise to the level
of a "complete violation" or nullity of claimant's human rights.
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Zambia
Longwe v.
Intercontinental Hotels,
(1984)
Zambia High Court
Keywords: Discrimination-Gender/Sex
Brief Summary: The Intercontinental Hotel had a policy of refusing entrace
to women unaccompanied by a male escort.
CEDAW: Longwe claimed that the hotel's actions violated the
anti-discrimination provisions of the Zambian constitution as well as Articles
1, 2, and 3 of CEDAW. The court agreed, affirming Zambia's obligation to uphold
the CEDAW treaty which Zambia ratified without reservation.
Full Text
International
Courts
Hellmut
Marschall v. Land Nordrhein-Westfalen, (May 15, 1997)
Court of Justice of the European Communities
Keywords: Discrimination-Gender/Sex, Employment; Other
Brief Summary: Discrimination action challenging a national law which
mandated that women must be given priority over an equally qualified male
candidates in official sectors where fewer women than men occupy high grade
posts.
CEDAW: Several nations used CEDAW in order to support the action,
specifically Article 4(1) which provdies for "special measures aimed at accelerating
de facto equality between men and women." The court concurred.
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Webb v. Emp Air
Cargo, (July
14, 1994)
Court of Justice of the European Communities
Keywords: Discrimination-Gender/Sex, Employment; Other
Brief Summary:Applicant was hired by the defendant corporation to
replace a pregnant employee during her pregnancy leave. Applicant later learned
that she, herself, was also pregnant; the Corporation then terminated her
employment.
CEDAW: Applicant relies on CEDAW although the court never directly
addresses how the Convention ought to be read in such an action.
Full Text
Unal Tekeli v.
Turkey,
(November 16, 2004)
European Court of Human Rights
Keywords: Discrimination-Gender/Sex; Other
Brief Summary: Applicant, a lawyer, petitioned the Karpiyaka Court of
First Instance for permission to use only her maiden name (as she was
professionally known by her maiden name, even after her marriage). She was
denied and thereafter applied to the European Court of Human Rights alleging
that the refusal to allow her to bear only her maiden name infered with her
right to protection of her private life and discriminated against her on the
basis of gender (as married men could continue to bear their own family name).
CEDAW: CEDAW is referred to as affirming "women's rights
regarding the choice of family name and the possibility of keeping their own
name if they so desire."
Full Text
EFTA
Surveillance Authority v. Kingdom of Norway, (January 24, 2003)
The EFTA Court
Keywords: Discrimination-Gender/Sex, Employment; Other
Brief Summary: Case concerned a challenge to the Norwegian
Universities Act 1995 which allowed academic positions to be earmarked for
women. The EFTA Surveillance Authority brought infringement proceedings against
Norway alleging that the Act contravened the EC Equal Treatment Directive in
that it discriminated against men on the grounds of sex.
CEDAW: In answer to the proceedings, Norway claimed that the
under-representation of women in higher academic positions sustained a need for
affirmative action measures such as are called for under Article 4(1) of CEDAW.
The court disagreed, noting that the Directive was rendered after CEDAW came
into force and the affirmative action measures in CEDAW are "clearly
permissive rather than mandatory. Therefore they cannot be relied on for
derogations from obligation under EEA law."
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