Proceedings of the Consultation on Women’s Economic Equality
Table of Contents
Friday December 8, 2000
Introduction
Session 1
The Women’s Economic Equality Project: History and Goals
Session II
Introduction of Participants
Session III
Part I
What Does Equality for Women Mean?
Gwen Brodsky and Shelagh Day (Canada)
Discussion
Part 2
South Africa’s New Equality Legislation
Sandy Liebenberg and Michelle O'Sullivan (South Africa)
Discussion
Saturday, December 9, 2000
Session IV
Part 1
Women’s Conditions of Social and Economic Inequality
Globalization and Women’s Social and Economic Rights in India
Subhashini Ali (India)
Rural Women in Urban Areas
Pumla Mncayi (South Africa)
Documenting Violations of Human Rights: Violence Against Women
Dr. Jessie Mbwambo (Tanzania)
Discussion
Part 2
Transforming Social and Economic Rights
The Right to Adequate Food
Simone Pingel (FIAN International)
The Right to Social Security
Lucie Lamarche (Canada)
The Right to Adequate Housing
Leilani Farha (Canada)
Discussion
Session V
The Draft General Comment on Women
Equality
Social Security
Adequate Standards of Living
Health
Macro-economics and Economic and Social Rights
Sunday, December 10, 2000
Session VI
What Strategies Are We Using To Promote Women’s Economic Equality?
Strategies used by the Legal Resources Centre
Sharita Samuel (South Africa)
Structural Adjustment Programmes, Challenging the World Bank in Argentina
Julieta Rossi (Argentina)
Women, Human Rights and Budget Analysis
Helena Hofbauer (Mexico)
Popular Education and Grassroots Organizing
Joy Butts (U.S.A.)
Discussion
Session VII
Planning Next Steps
Friday, December 8, 2000
Session 1
The Women’s Economic Equality Project: History and Goals
The Consultation on Women’s Economic Equality opened with a warm welcome to all of the participants. The organizers expressed their pleasure at being able to host the Consultation in South Africa, where economic and social rights are justiciable constitutional rights and where there is ongoing activism to advance women’s economic and social equality.
The Women’s Economic Equality Project was founded in 1998 in recognition of the need to ensure that women’s experiences and needs are considered in a meaningful way in the implementation and adjudication of economic, social and cultural rights treaties and related domestic laws.
A central goal of the Project is to make visible the connection between economic policy and women’s human rights, and to enlarge the idea of women’s equality to ensure it encompasses women’s economic and social rights. These goals are particularly relevant in light of the severe and negative impacts on women of globalization and neo-liberal political, economic and social agendas. The human rights framework needs to offer an effective counter-discourse to these dominant theories - a counter-discourse which can address women’s poverty and economic inequality as violations of women’s human rights.
The three founders of the Project - Shelagh Day, Leilani Farha and Sarah Zaidi - invited two organizations from South Africa, The Women’s Legal Centre and The Economic and Social Rights Project at the Community Law Centre, to co-host this first Consultation.
The South African hosts stated that in the South African context, women’s human rights have to be understood to relate to poverty and disempowerment, the legacies of colonialism and apartheid. Women’s issues have been marginalized in domestic human rights discourse, but there is the potential for this to change within the South African constitutional context as the Constitutional court recently ruled that the government has a responsibility to the most disempowered groups. To date, however, equality jurisprudence in South Africa has been led by the more privileged members of society: men and white women. The courts have yet to grapple with the problems of disempowered women, particularly poor black women.
Beyond developing new and more inclusive discourses, the Women’s Economic Equality Project is designed to assist women to develop strategies. By bringing together women who work at different levels – domestic, national, and international – a variety of approaches can emerge for contending with practices and policies that perpetuate women’s social and economic subordination.
A key initiative for the Project is the preparation of a Draft General Comment on Women for the Committee on Economic, Social and Cultural Rights (CESCR). The Chair of the Committee, Virginia Dandan, has invited the Women’s Economic Equality Project to develop a Draft Comment for consideration. The CESCR is responsible for monitoring States parties’ compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR ). Adopting a General Comment on Women affords an opportunity for the Committee to provide States that have ratified the ICESCR with an authoritative interpretation of what they are legally obliged to do to implement women’s economic and social rights.
Session 2
Introduction of Participants
Consultation participants each provided an overview of their work and how they have come to focus on women’s economic, social and cultural human rights.
(Please see Appendix A)
Session 3
Part I
What Does Equality for Women Mean?
- Gwen Brodsky and Shelagh Day (Canada)
The presenters stressed that this is an important moment for women to push forward a big, substantive idea of women’s equality. Despite the many commitments to women’s equality that have been made by governments at the domestic and international levels over the last fifty years, women are being pushed backwards by the impacts of structural adjustment programs and by the global neo-liberal agenda. This agenda promotes small government, the privatization of public services and institutions, deregulation, and trade liberalization. In this political climate, it is too easy for governments, international financial institutions, and corporations to embrace a version of equality that treats economic policy as though it is completely unrelated to the advancement of women. At stake is the ability of women’s human rights to be a vital, responsive, alternative discourse in a time of national and global restructuring. There is a danger that the human rights of women may slide into irrelevance unless they are understood by women, and interpreted by governments, courts, and corporate actors to have content that can address the threats to women’s advancement that neo-liberal economic policies currently pose.
Offering an example from Canada, the presenters noted that Canada’s social programs were restructured in a profound way in 1995. Federal legislation that set standards for social assistance in all jurisdictions was repealed, cost-sharing arrangements between federal and provincial governments for social assistance and key social services were abandoned, and the federal government cut the amount of its financial transfers to the provinces for health, post-secondary education, and social assistance. The result has been cuts in welfare rates and tightened eligibility rules, cuts to social services - including shelters for battered women and home care for people with disabilities, increased tuition fees and high debt loads for students, and a beleaguered health care system.
This restructuring has harmed women, who are the majority of the poor in Canada, the majority of those reliant on social assistance, and major users of social services. For Aboriginal women, women of colour, immigrant women, women with disabilities, single mothers, and elderly women, groups who have the highest rates of poverty, the impact is most severe.
It is clear that this restructuring has increased the economic and social vulnerability of women. It has meant cuts to the “good jobs” that women had in the care-giving sector – full-time jobs with union security and benefits; cuts to social services, such as child care, home care services, and counseling that many women count on to fill in essential gaps, to keep themselves and their families afloat; and cuts to social assistance rates, ensuring that the poorest women will be even poorer. In addition, this restructuring pushes more unpaid care-giving work back onto women, constraining their participation in paid work and making them more economically dependent.
In Canada, social programs and social services are a central means of assisting women to contend with conditions of social and economic inequality. What is most disturbing of all, in light of the tight connection between social programs and social services and women’s equality, is that the most drastic changes to Canada’s social programs of the last 40 years were presented as a purely budgetary matter, unrelated to the rights of women.
How can this happen? The commitments to equality for women that have been made over the last fifty years by many nations in domestic law and through international treaties must be understood to encompass the goal of redressing the social and economic inequality of women. This seems an incredibly obvious claim. Why is it even necessary to argue that the commitment to women’s equality includes a commitment to address the social and economic dimensions of women’s inequality? The answer to this, the presenters contended, lies, in part at least, in the persistence of formal equality thinking.
Formal equality is an old idea. Formal equality theory assumes that equality is achieved if the law treats likes alike. An absence of different treatment of men and women in the form of the law (gender neutrality), together with neutral application of the law, is thought to make men and women equal. Certainly, there are times when like treatment is exactly what women want. Fights for the vote and for the right to inherit property are fights by women to be treated the same as men at law. In circumstances where women and men are identically situated with respect to the opportunity or right sought, the model of formal equality works. However, when women and men are not identically situated, which is most of the time, the formal equality model is no help; in fact, it perpetuates discrimination, because it cannot address actual inequality in conditions.
Closer examination of formal equality reveals that it is not just one concept but rather a package of interlocking puzzle pieces, which together, function to both conceal and legitimize the oppression of marginalized groups in the society. The formal equality framework is characterized by:
acceptance of the highly mechanical Aristotelian formulation that things that are alike should be treated alike, while things that are unalike should be treated as unalike in proportion to their unalikeness;
a refusal to see that equality is actually a question of inequality, that is, of dominance and subordination between groups in the society;
a refusal to see that relations of inequality between groups are sustained by government inaction as well as by government action;
a propensity to place many forms of inequality in a realm, such as the family or the market, that is categorized as “private,” beyond the reach and responsibility of government;
a central commitment to a policy of blindness towards personal characteristics thought to be out of the control of the individual, such as genitalia and skin colour;
resistance to dealing with discrimination relating to a category of stigmatization concerning which there may be a significant element of choice, such as being lesbian, or which, like poverty, is not readily reduced to personal characteristics that are analogous to genitalia and skin colour;
an incapacity to deal with the adverse effects of facially neutral laws or policies;
an understanding of discrimination, not as systemic, but rather as consisting of explicit, differential treatment;
a tendency to individualize everything so that patterns of group-based oppression and subordination are rendered invisible;
a conception of government as always a threat to individual liberty, and not as a significant actor in creating the conditions necessary for human flourishing.
The neo-liberal restructuring agenda tends to reinforce formal equality thinking, because formal equality tends to idealize market freedom and demonize State intervention to ameliorate extreme disparities in wealth and social power. It supports social Darwinism by asserting that as long as laws and policies are facially neutral, everyone has the same opportunities, and those who flourish do so because of their fitness.
Fortunately, however, equality thinking has moved well beyond this narrow interpretation over the last 50 years. The meaning of equality has changed and expanded dramatically. It is widely understood now that women as a group are disadvantaged, and that equality measures must address the economic, social, legal and political dimensions of that group disadvantage. This newer and broader understanding is referred to as substantive equality. By contrast with formal equality, a substantive version of equality reflects the following insights:
equality is not a matter of superficial sameness and difference, but rather a matter of inequality, that is, of dominance, subordination, and material disparities between groups;
it is the effects of laws, policies and practices, not the absence or presence of facial neutrality, which determines whether they are discriminatory;
addressing inequality between groups requires government action;
the so-called “private” realms of the family and the marketplace cannot be set outside the boundaries of equality inquiry or obligation, because they are key sites of inequality;
neither liberty nor equality for individuals can be achieved unless equality is achieved for the groups of whom disadvantaged individuals are members;
it is essential to be conscious of patterns of advantage and disadvantage associated with group membership;
the test for inequality is not whether a law or policy treats an individual unfavourably in comparison to members of a group whom he is like; rather the test for inequality is whether a law or policy causes, keeps in place, or exacerbates disadvantage in real conditions, including economic conditions, for the members of an historically oppressed group.[1]
If formal equality is the accepted version of equality, the violation of women’s rights that is inherent in the restructuring of social programs is made invisible. On its face, restructuring is gender neutral; as a policy, it applies to men and women in the same way. There appears to be no problem. On the other hand, substantive equality, which is focused on effects, can recognize that the pre-existing disadvantages of women are exacerbated by cuts to social programs, and that this violates women’s human rights.
However, whether our starting point is women’s equality or women’s economic and social rights, there is a fundamental problem rooted in dominant thinking about rights that confronts any claim for redistributive justice. The fundamental problem is that “real rights” are seen to be negative checks on government, intended to assure a large sphere of individual freedom. The individual is conceptualized as universal (that is, male), autonomous, and unconstrained by group circumstances. The greatest threat to individual freedom is understood to be the heavy hand of government, as expressed through policing and laws that diminish personal liberties, including freedom of contract. State inaction and omissions are not the subject matter of such rights.
The civil and political rights contained in the International Covenant on Civil and Political Rights(ICCPR) are generally understood to fall within the negative rights paradigm, and therefore to enjoy the status of real, enforceable rights. Formal equality, as we have defined it, exemplifies this version of rights. A necessary corollary to this negative rights paradigm is that redistributive social and economic measures undertaken by governments are not seen as falling within the scope of rights. Governments may choose to initiate redistributive measures if they wish, and may make commitments to social and economic “rights”, but redistributive measures are not subject to rigorous judicial review, and social and economic rights commitments are not actually enforceable. The positive rights in the ICESCR are considered by many to be of the “not real rights” variety.
This disconnection within dominant rights discourse between rights on the one hand and social and economic policy on the other, of which the separation of the civil and political rights covenant from the social and economic rights covenant is just a reflection, threatens to terribly diminish the effectiveness of women’s rights guarantees if it prevails, no matter what our starting point is.
In practice, we face this dilemma. If a woman’s equality rights claim is seen as falling in the civil and political/negative rights category, and the claim involves the State in a redistributive role, only facially discriminatory laws are likely to be seen as constituting rights violations. Conversely, if a woman’s claim is seen as falling in the social and economic rights category, it is unlikely to be enforced. Nothing short of breaking away from this categorical approach to women’s claims of economic inequality will suffice.
A current Canadian example illustrates the point. In the 1980’s the Government of Quebec instituted a welfare regime under which people younger than 30 had their social assistance benefits reduced to one-third of the amount that the government had determined was necessary to meet basic needs for food, clothing, and shelter (that is, to about CDN170 dollars, or about USD110).
The affected group was poor young people, including poor young women. The Quebec regulation, which on its face, discriminated against all people under 30, was challenged by a woman named Louise Gosselin in a class action under the Canadian Charter of Rights and Freedoms and s. 45 of the Quebec Charter of Rights. The claim was defeated at two levels of court in the province of Quebec. At the time of this writing an appeal is pending in Canada’s highest court, the Supreme Court of Canada.
The Quebec Court of Appeal judgement exemplifies both faces of the “real rights”/social policy distinction that plagues both domestic and international human rights law. Because the challenged regulation was facially discriminatory on the basis of age, it fit easily within the formal equality paradigm, and, the majority of the Court held that it violated the Charter’s equality guarantee, although ultimately, as explained below, the Court found that the discrimination was justified.