WUNRN
2015 UN REPORT OF THE WORKING GROUP ON DISCRIMINATION
AGAINST WOMEN IN LAW & IN PRACTICE
Thematic Analysis: Eliminating Discrimination Against
Women in Cultural and Family life, with a Focus on the Family as a Cultural
Space
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United Nations |
A/HRC/29/40 |
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General Assembly |
Distr.:
General 2
April 2015 English Original:
French |
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Human
Rights Council
Twenty-ninth session
Promotion and protection of all human rights,
civil, political, economic, social and cultural rights,
including the right to development
Report of the Working Group on the issue of discrimination against women in law
and in practice
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Summary |
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In this report, the Working Group examines discrimination against women and
girls in cultural and family life. The cultural construction of gender
determines the role of women and girls within the family, including in
marriage. After analysing the impact of culture and religion on the enjoyment
of equal rights by women and girls in society and the family, the Working
Group redefines family by incorporating a gender perspective. In reaffirming
equality between the sexes and family diversity, it is necessary to apply the
principle of women’s right to equality in all forms of family law, in secular
family law systems, State-enforced religious family law systems and plural
systems. After recalling the obligation of States to combat discrimination
against women in cultural and family life, the Working Group makes several
recommendations, drawing on good practices, for the establishment of true
equality between the sexes in cultural and family life. |
III. Thematic analysis: eliminating discrimination against
women in cultural and family life, with a focus on the family as a cultural
space
8. The legal rights of women and girls to equality and non-discrimination in cultural and family life, established in 1948 by the Universal Declaration of Human Rights and by international human rights law, are often restricted in national laws and in practice, including in cultural practice. The Working Group emphasizes that, in accordance with international human rights law, States have an obligation to adopt appropriate measures with a view to eliminating all forms of discrimination against women and girls in laws, cultural practices and the family, whether perpetrated by State agents or private actors.
9. In order to prepare this report, the Working Group used responses to a questionnaire received from 32 Member States, as well as studies and research by United Nations programmes and bodies, international human rights mechanisms and other stakeholders that were transmitted to it directly or have been carried out recently on the subject.[1] The Working Group also identified good practices in respect of equality in the family and in cultural life, as required by Human Rights Council resolution 15/23.
(THEME CONTINUES THROUGH END OF REPORT – PAGE 20.)
IV. Conclusions and Recommendations
71. The cultural construction of gender makes women’s subjection to gender-based discrimination and violence appear to be inherent and immutable. The patriarchal family is the product of this construction and the most important social mechanism for its perpetuation. Women and girls’ human potential is restricted in families. The recognition that women’s rights are human rights and that they are universal and indivisible has laid bare the adverse impact of this gender construction on women and girls in families and communities. The need for a paradigm shift has been clearly set out in international human rights law, which, since 1948, has established women’s right to equality in all spheres of life, in culture and in the family. As Eleanor Roosevelt said as far back as 1958: “Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. […] Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere.”[2]
72. The State must act as an agent of change as regards women’s place in cultural and family life, by fostering and creating a culture free of all forms of discrimination against women.[3] A transformative approach to women and girls’ status in the family is crucial. There needs to be awareness that, in the past, a patriarchal concept of family pervaded all secular, religious, customary and indigenous laws and institutions and that some States and groups are now trying, in a retrograde manner, to subject women to the most oppressive forms of patriarchy, particularly in the context of religious fanaticism. It should also be understood that the transition towards equality between women and men, and girls and boys, in the culture and in the family is a prerequisite for a decent society.
73. The Working Group recommends that States:
(a) Establish a
national legal framework recognizing gender equality in cultural and family
life, in accordance with regional and international standards:
(i) Recognize and enshrine, in their
constitutions and laws, the right to equality, which should apply in all areas
of life and have primacy over all religious, customary and indigenous laws,
norms, codes and rules, with no possibility of exemption, waiver or
circumvention;
(ii) Promote access to, participation in and
contributions by women to all aspects of cultural life, including the
definition, creation and interpretation of cultural and religious norms and
practices, by providing equal resources, adopting special measures and
policies, and facilitating women’s access to decision-making positions and
policymaking processes, at all levels;
(iii) Develop national strategies to eradicate cultural
practices that discriminate against women and girls, as well as gender
stereotypes, through awareness-raising campaigns, educational and informational
programmes and stakeholder mobilization. Engage men, as appropriate, in
prevention and protection efforts in respect of gender-based discrimination and
violence;
(iv) Develop effective mechanisms to combat the multiple and
intersecting forms of discrimination suffered by all marginalized women,
including minority women, women living in poverty, women with disabilities,
refugee and displaced women, migrant and immigrant women, rural women,
indigenous women, older women and single women;
(b) Promote a
culture free of discrimination:
(i) Establish an executive body that applies the
due diligence framework (prevention, protection, prosecution, punishment and
redress), addressing all forms of discrimination against women in cultural and
family life, including by non-State actors;
(ii) Reject any cultural or religious practice that
violates human rights and the principle of equality or prevents the
establishment of an egalitarian society free of gender-based discrimination;
(iii) Punish institutions, State officials and non-State
actors whose actions threaten women’s rights, even where the grounds for such
actions are the preservation of culture and religion;
(c) Guarantee
women’s de jure and de facto right to equality in family diversity:
(i) Recognize and protect, in their constitutions
and laws, all forms of family, and affirm and protect women and girls’ right to
equality in family diversity, by adopting and implementing appropriate measures
to protect women from exploitation and discrimination in diverse families,
particularly women living in vulnerable situations;
(ii) Eliminate in law and in practice all forms of marriage
that restrict and/or deny women and girls’ rights, well-being and dignity,
including early and/or forced marriage, polygamous marriage and temporary
marriage;
(iii) Establish appropriate solutions, remedies and redress
to ensure respect for the rights and well-being of women and girls living in
the forms of marriage referred to above, including the possibility for them to
leave such marriages with their share of the matrimonial assets, custody of
their children and the right to remarry;
(iv) Eliminate all laws or practices that restrict the rights
and opportunities of widows or divorced women, but not widowers or divorced
men, to remarry, work, have guardianship or custody of their children, and own
the family home, assets and land;
(v) Repeal all laws that support the patriarchal
oppression of women in families, such as laws that exclude marital rape from
the crime of rape, laws that grant pardon to rapists who marry their victims
and laws that criminalize adultery;
(vi) Prohibit and punish domestic violence, including incest
and marital rape, and provide measures to protect women and girls who are
victims of such violence, such as protection orders and shelters;
(vii) Respect, protect, fulfil and promote the right to gender
equality in the family in the various types of legal system – secular family
law systems, State-enforced religious family law systems and plural legal
systems. The adoption of a family code or personal status laws free of any
reference to culture or religion is encouraged;
(viii) In countries where several legal systems coexist, establish and
implement national mechanisms to ensure the effective implementation of
guarantees of equality and non-discrimination between men and women in all
areas and at all levels, offering women, especially rural and indigenous women,
the possibility of removing themselves from the arbitral authority and
jurisdiction of customary institutions. Bring parallel customary, religious and
indigenous law systems into line with international human rights law,
particularly in respect of gender equality, while acknowledging the importance
of the wealth and diversity of culture and traditions. Grant women the right to
appeal, in State courts, decisions of religious, customary or indigenous
authorities, whether formal or informal, that have violated their right to
equality;
(ix) Make the formal State legal system accessible to all
women, regardless of their social status, and address the shortcomings of the
formal system. Formal justice should be preferred to informal justice for the
settlement of all family matters, including those relating to sexual violence
and domestic violence;
(x) Set up gender-awareness training for all State
civil servants involved in education, health, social services, law enforcement
and judicial decision-making. Include women, on an equal basis, in all bodies
that interpret and apply family law;
(d) According to
general recommendation No. 29 of the Committee on the Elimination of
Discrimination against Women, the
family
is a social and legal construct and, in various countries, a religious
construct. It also is an economic construct. The Working Group
recommends that States:
(i) Take measures to ensure that families allow
girls to access education on an equal basis with boys, by raising awareness in
the community and providing families with financial incentives to allow girls
to finish their studies;
(ii) Ensure that women are free to participate in
economic activities outside the house or village, without the supervision of
male relatives;
(iii) Ensure that women, on an equal footing with men, and
girls, on an equal footing with boys, have the right to at least half the
family property and inheritance in the event of divorce or widowhood.
Facilitate the invalidation of any waiver of these rights obtained from a woman
as a result of pressure from her family or community;
(iv) Recognize the right of women living in polygamous
marriages to end their marriage when their husband takes another wife and grant
them a share of the family property, including the value of the house or land;
(v) Recognize women as heads of family on an equal
basis with men so that they may enjoy the same financial or social benefits;
(vi) Assess, quantify and take account of the impact of women
and girls’ status in the family in all poverty-reduction policies.
74. The Working Group recommends that international and
regional human rights mechanisms:
(a) Develop
standards, principles and guidelines to combat all forms of gender stereotype,
in accordance with the Convention on the Elimination of All Forms of
Discrimination against Women;
(b) Conduct
empirical studies on family diversity and the strategic implications of
protecting human rights for the family and for all its members, on an equal
basis;
(c) Explore the
establishment of an essential framework of minimum legal protection for all
types of family, including self-created or self-defined families, that would
guarantee women’s fundamental rights in the family, in accordance with
international law.