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FROM FRANCES
RADAY, CHAIR OF THE UN WORKING GROUP ON DISCRIMINATION AGAINST WOMEN IN
LAW & IN PRACTICE RE: EQUALITY VS. EQUITY & UN HUMAN RIGHTS
COUNCIL RESOLUTION ON PROTECTION OF THE FAMILY
Thank you, Shanti Dairiam, for clarifying the dangers inherent in the calls to
shift our normative framework from equality to equity (See below) and Alda
Facio for reinforcing her posting.
As Shanti pointed out, the CEDAW Convention secured a normative framework of
substantive equality for women. This has been re-emphasised with all relevant
examples of CEDAW General Recommendations and Concluding Observations in the
CEDAW Commentary, Oxford University Press, 2012 and in my article on Gender
and Democratic Citizenship – Confronting Traditionalism and Neo-liberalism: the
Impact of CEDAW, Cardozo L. Rev., 10 International Journal of
Constitutional Law 512 (2012).
It is of immediate importance to reassert women's universal human right to
substantive equality. Other values such as equity, complementarity and human
dignity allow interpretation which is consonant with traditional patriarchal
values and does not secure equality for women, either in the public space or in
the family.
Equity,
complementarity and human dignity can only be properly understood where they
are well founded on women's right to equality and interpreted in accordance
with women's universal right to equality.
The immediate relevance of this
issue is evident in the resolutions, in 2010 and 2012, of the Human Rights
Council to restore traditional values to the interpretation of international
human rights. Furthermore, last Friday the Human Rights Council adopted a Resolution
on the Protection of the Family.
This resolution on Protection of the
Family fails to recognise the diversity of families or to include any reference
to the right to equality within the family. The former problem regarding the
failure to recognise diverse families was the chief concern expressed by those
states which opposed the resolution or proposed amendments to it.
However, the second problem - the
failure to assert the right to equality for family members within the family -
seems to have passed under the radar of the opponents to the resolution.Since
the 1948 UDHR and as later detailed in CEDAW article 16, human rights
regulation of the family has recognised the individual rights of family members
to equality within families: "equal
rights as to marriage, during marriage and at its dissolution".The absence
of an equality clause in the resolution threatens the loss of this essential
fundamental right, especially for women and girl children. What women and girls
must be guaranteed within the family is first and foremost equality.
Frances Raday
President, Concord Research Center for Integration of International Law in
Israel
The Haim Striks School of Law, COLMAN
Professor of Law, Hebrew University, Jerusalem (emerita)
Mandate Holder, UN Human Rights Council, Chair WG on
Discrimination against Women
_________________________________________________________________________________________________
UN HUMAN RIGHTS COUNCIL RESOLUTION
ON PROTECTION OF THE FAMILY
___________________________________________________________________________________
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Original Message -----
From: WUNRN
LISTSERVE
To: WUNRN ListServe
Sent: Thursday, June 26, 2014 11:04 AM
Subject: Equity or Equality for Women?
WUNRN
Equity or Equality
for Women?
By Shanthi Dairiam - IWRAW AP
Founder & Board of Directors
22 June 2014 - Equity or equality is a current debate among women’s
groups from around the world as they link up and prepare for the
great UN debates and decisions that are taking place with regard to Sustainable
Development Goals, the Post 2015 Development Agenda as well as the
forthcoming celebration of Beijing plus 20 in 2015. Through the emails that are
circulated on the subject, one can see the debates among women on the
usefulness of supporting the concept of equality versus adopting the use of the
concept of equity. The latter is seen as based on the principle of fairness and
as addressing inequality and the realities of women’s lives; while the former is seen as merely promoting equal or
same opportunities as that enjoyed by men. The conclusion is that equality may
just continue to perpetuate inequality.
I would like to add to this discussion. In the debates by the
women’s groups, the meaning that is given to the concept of equality is
outmoded. The concept of equality that the CEDAW Convention prescribes and as
used by the CEDAW Committee is substantive equality. This concept of equality
goes beyond equal opportunities or what is known as formal equality.
Those who prescribe the concept of equity over equality do so
because they say that equity requires that each person is given according
to their needs; they believe that if you speak of equity instead of equality it
will be clear that the objective is not treating women the same as men but more
importantly, giving women what they need. Equality on the other hand they say,
stops at giving same opportunities to women and men but does not guarantee that
women will be able to access these opportunities due to pre-existing/
existing inequalities that women experience. This shows a
misunderstanding of what equality means especially since the advent of the
CEDAW Convention.
Under this Convention, substantive equality is the goal to be achieved
in all spheres. To achieve this, the obligation of the State extends
beyond a purely formal legal obligation of equal treatment of women with
men. In fact under article 2 of the Convention, states have the dual obligation
of incorporating the principle of equality in the law (formal equality) and
ensuring as well, the practical realization of the principle of equality.
Hence a purely formal legal approach is not sufficient to achieve women’s de-
facto equality with men, which is substantive equality. It is not enough to
guarantee women treatment that is identical to that of men which is the
provision of equal opportunities. Rather, biological as well as socially and
culturally constructed differences between women and men must be taken into
account and under certain circumstances, non-identical treatment of women and
men will be required in order to address such differences. This includes a
redistribution of resources and power between men and women favouring women.
(CEDAW Convention article 4.1 and General Recommendation 25) If this is
not done then such inaction or neutral or identical treatment of women and men
is discrimination against women under article 1 of CEDAW as the practical
enjoyment of equality as a right would have been denied to women. Discrimination
includes any treatment that has the effect of nullifying the enjoyment
of human rights by women in all spheres, though such discriminatory effect was
not intended. (Summary of article 1 of the CEDAW Convention).
Equality and the practical enjoyment of it by women, is a universal
value, a legal standard and goal and a human right. In fact, without equality,
human rights would have no meaning. It is equality that demands that human
rights is for all regardless of sex, status, origin, descent, location, sexual
orientation and gender identity.
Equity is a not a standard or a goal. It is subjective,
discretionary and arbitrary. It is fragile as a policy if used as a stand
-alone concept without it being linked as a means to achieve the goal of
equality.
It can also be used against women. During the debates when the Beijing Platform
was drafted in 1994/1995, Muslim countries and the Holy See and its followers
from Latin America strongly argued for the use of the term equity and resisted
the term equality. For them, women and men could not be valued equally.
They demanded the use of the term equity, as in their view, this term
justified greater resources and power skewed in favour of men on the basis of
their god- given and immutable responsibilities as providers and
leaders. Equity was used to give men according to their "need".
The determination of need itself is political and value driven. But the
conservative forces did not get their wish during the Beijing Platform
debates as the Human Rights Caucus argued heatedly and long against the term
equity. The Beijing Platform adopted the term equality. We will be retracting the hard won conceptual
gains made in our understanding of equality twenty years ago if we now say the
concept of equality is not useful. Equity cannot stand alone or be used
interchangeably with equality.
(For an elaboration of this subject see "Equity or Equality for
Women? Understanding CEDAW's Equality Principles". IWRAW Asia
Pacific Paper Series. No.14.