English - CEDAW Southeast Asia

CEDAW and the Law:
Indirect discrimination against women may occur when laws, policies and programmes
are based on seemingly gender-neutral criteria which in their actual effect have a detrimental
impact on women. Gender-neutral laws, policies and programmes unintentionally
may perpetuate the consequences of past discrimination. They may be inadvertently
modeled on male lifestyles and thus fail to take into account aspects of women’s life experiences
which may differ from those of men. These differences may exist because of
stereotypical expectations, attitudes and behaviour directed towards women which are based
on the biological differences between women and men. They may also exist because of
the generally existing subordination of women by men. 117
Using the earlier example on access to credit (see Part III.2.1. Substantive Equality),
despite the apparently neutral rights to access credit, in effect, women were discriminated.
Even legislation that appears to benefit women may, in fact, be discriminatory. An example is
legislation that requires that 10 percent of all advertised land should be given to women provided
there is a payment upfront of high collateral that is nonrefundable. In a context where
women are generally poorer than men, many women cannot afford this amount and are, therefore,
less likely to benefit from the policy. The law thus discriminates against women by failing
to ensure their equal access to, and enjoyment of the land policy, even if on its face it seems
to be pro-women.
Important notes
In addition to the concepts of and prohibitions on direct and indirect discrimination, there are
a few important notes to bear in mind relating to the wider notion of discrimination.
First, it is important to recognize that discrimination can stem from sources other than
present discrimination. 118 Often past discrimination is not seen because the focus is on the
more immediate or current action or omission; for example, a lack of women leaders is attributed
to inexperience not a past discriminatory practice of not electing or hiring women. On this
note, Paragraph 14 of GR 25 points out: “The Convention targets discriminatory dimensions
of past and current societal and cultural contexts which impede women’s enjoyment of their
human rights and fundamental freedoms.”
54
Second, discrimination in one field can affect the enjoyment, exercise or recognition of
a right in another field, so discrimination can be interrelated; for example, discrimination in
access to education can result in discrimination in access to leadership positions. Another
example that has been previously discussed is that discrimination in access to credit opportunities
may be due to discrimination in the ownership of property, inheritance and the ability to
enter into contracts, and it often results in lack of access to education and loss of opportunity
for personal and professional development.
Third, gender discrimination may exist with other grounds of discrimination, such as on
account of ethnicity, social status, religion or age. 119 These other grounds must not be ignored.
Rather, it is important to bear in mind that interventions should take into account all forms of
117
Ibid., Note 1
118
Ibid., Paragraph 14
119
Ibid., Paragraph 12
CEDAW: basic information