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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

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UN HUMAN RIGHTS COUNCIL RESOLUTION ON PROTECTION OF THE FAMILY

http://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/26/L.20/Rev.1

 

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----- Original Message -----

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To: WUNRN ListServe

Sent: Thursday, June 26, 2014 11:04 AM

Subject: Equity or Equality for Women?

 

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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.

http://www.iwraw-ap.org/publications/doc/OPS14_Web.pdf