GLOBAL | summer 2004
A global perspective on women under the law
Around the world, real discrimination against women persists — much of it in blatant, tolerated, legal form. Why?
It makes no sense. The right to equality has been affirmed repeatedly, in international law, national constitutions and various treaties. Name them: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) — all provide for equality before the law and equal protection. The Beijing Platform for Action, adopted at the 1995 United Nations Fourth World Conference on Women, states the need to “ensure equality and non-discrimination under the law and in practice” and to “revoke any remaining laws that discriminate on the basis of sex.”
It sounds good. But the reality on the ground, in cities and villages, homes and schools, and even in the courts, is quite different.
Many discriminatory laws still relate to family law, limiting a woman’s right to marry, divorce and remarry, and allowing for such marital practices as polygamy. Mali, Sudan and Yemen are among countries with laws still mandating “wife obedience” in marital relations. Sudan’s 1991 Muslim Personal Law Act provides that a husband’s rights include being “taken care of and amicably obeyed” by his wife. Yemen’s 1992 Personal Status Act even enumerates the elements of wife obedience, including requirements that a wife “must relationpermit him [her husband] to have licit intercourse with her,” that she “must obey his orders,” and that “she must not leave the conjugal home without his permission.”
But if you think blatant legal discrimination is a problem only in Muslim societies and/or developing countries, think again.
Many nations, including the United States, explicitly discriminate on the basis of sex in the transmission of citizenship: to children, depending on the sex of the parent, and/or through marriage, depending on the sex of the spouse. The U.S. law — which gives children born abroad and out of wedlock differing rights to citizenship, depending on whether their mothers or fathers are U.S. citizens — was upheld by the Supreme Court in 2001: Children of U.S. mothers have a lifetime right to citizenship, while children of U.S. fathers (including all those GIs stationed overseas) must take legal steps, before turning 18, to claim citizenship.
In its 5-4 decision, the Court held that the law was justified on the basis of two governmental interests: “assuring a biological parent-child relationship exists” and a “determination to ensure that the child and the citizen parent have some demonstrated opportunity or potential to develop … a relationship that … consists of the real, everyday ties that provide a connection between child and citizen parent, and, in turn, the United States.”
The majority opinion, authored by Justice Anthony M. Kennedy, did not address the fact that such a relationship was arbitrarily required by law for U.S. citizen fathers but not U.S. citizen mothers. In the dissent, Justice Sandra Day O’Connor noted, “Indeed, the majority’s discussion may itself simply reflect the stereotype of male irresponsibility that is no more a basis for the validity of the classification than are stereotypes about the ‘traditional’ behavior patterns of women.”
Other “personal status” laws that discriminate on the basis of sex range from the denial of women’s right to vote in Kuwait to the prohibition against women driving in Saudi Arabia.
Inheritance and property laws are also key areas where discrimination exists. Lesotho’s laws provide that “no immovable property shall be registered in the name of a woman married in community of property.” Chile’s Civil Code mandates that “the marital partnership is to be headed by the husband, who shall administer the spouses’ joint property as well as the property owned by his wife.”
Until 2002, the law in Nepal was that daughters had the right to a share of family property only if they were at least 35 years old and unmarried; after years of effort, the Nepali Women’s Movement succeeded in amending the law — but just in part: Now, daughters are born with the same right to family property as are sons, but the law requires women to return any such property upon marriage.
In many countries, criminal offenses — their definitions as well as rules governing admissible evidence — are explicitly sex-discriminatory. In Pakistan, for example, written legal documents concerning financial obligations must be attested to by two men, or by one man and two women. In rape cases there, four Muslim adult males must testify to witnessing the rape; there is no provision for testimony from female witnesses.
Marital rape is explicitly excluded from rape laws in many nations — for example, India, Malaysia and Tonga. Ethiopia, Lebanon, Guatemala and Uruguay exempt men from penalty for rape — if they subsequently marry their victims. Northern Nigeria’s penal code notes that assault is not an offense if inflicted “by a husband for the purpose of correcting his wife” so long as it “does not amount to the infliction of grievous hurt.”
And in cases of socalled honor killings, men who murder their wives are exempt from punishment by law in Syria, Morocco and Haiti. In Jordan, a campaign against “honor” killings did change the law — but only to make it gender neutral, exempting any spouse from punishment for an “honor” killing. Since virtually all such killings are perpetrated by men, this amendment removes the appearance of sex discrimination, not the discrimination itself.
Laws that explicitly discriminate are only the tip of the iceberg. The denial of equal opportunity in education and employment, exclusion from political representation, deprivation of sexual and reproductive rights, plus the use of social forces and physical violence to intimidate and subordinate women — all these are violations of the right to equality. In many countries, abortion is a criminal offense that burdens women with medical consequences, often fatal, of unsafely terminating a pregnancy. In some countries — the Philippines, for example — prostitution is a criminal offense for the prostituted female but not for the male customer.
In virtually all countries, there are laws, policies and practices that, though not explicitly discriminatory, in practice deny women equality. This in itself is illegal. Whenever laws perpetuate women’s inequality — even when their language appears gender neutral — they constitute discrimination in violation of international norms.
In June 2000, a Special Session of the U.N. General Assembly reviewed implementation of the Beijing Platform, five years after its adoption. An Outcome Document was adopted, outlining achievements, obstacles and further actions to be taken by governments and by the U.N. to implement the Platform. Paragraph 21 cites gender discrimination as one such obstacle to implementation of the Platform, noting that discriminatory legislation persists. It notes, too, that new laws discriminating against women have been introduced (in Nigeria, for example).
The Document also provides that countries should review legislation “striving to remove discriminatory provisions as soon as possible, preferably by 2005.” The preliminary draft had noted 2005 as an unequivocal target date for the elimination of discriminatory laws; the final document reflects a compromise, with the target date stated as a preference.
Elimination of such laws doesn’t require financial expenditure. It requires political will, in the form of a legislative act. This political will is obviously absent; the very notion of setting a target date five years into the future — merely to remove explicitly discriminatory legal provisions — was hotly contested at the General Assembly Special Session.
Still, there has been progress. A number of countries have repealed discriminatory laws since the adoption of the 1995 Beijing Platform for Action. Venezuela adopted a new constitution that removed discriminatory citizenship provisions. Mexico rescinded a law that required a woman to wait 300 days from the dissolution of marriage before remarrying. Turkey rescinded a law that designated the husband as the head of a marital union, responsible for all family savings. Papua New Guinea removed the exemption of marital rape from its definition of rape, and Costa Rica removed the exemption from punishment for rapists who subsequently married their victims. Switzerland amended a law that had barred women in the military from using arms other than for self-defense, thus opening all military functions/responsibilities to women.
In 2001 (after threat of financial sanctions from the European Commisson), France rescinded a law prohibiting women from night employment in industrial “workplaces of any nature, be they public or private, civil or religious, even if such establishments are for the purpose of professional education or charitable work.”
Laws are changing. But the pace of change is lethargic, while the need for change is urgent. The substantial gap between the rhetoric and the reality of sex-equality rights indicates the lack of meaningful commitment to applicable treaty obligations and commitments governments have made. Public pressure can play a role in helping to overcome such lethargy.
The diplomatic community can feel shame under pressure, and that itself is a powerful technique too rarely used by governments, themselves fearful of the same spotlight. NGOs, of course, continually work to shatter the silence. But until governments match their interest in setting standards with an interest in implementing the standards they set, the integrity of the legal process will remain a question. That there are any laws explicitly discriminating against women is unacceptable, and must be universally seen and acknowledged as such — even in the diplomatic corridors of the United Nations.
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