Report - Office of the High Commissioner on Human Rights

– ensuring <strong>the</strong> “practical realisation” <strong>of</strong> (substantive) equality between men and women, i.e., de
jure and de facto equality (Articles 2 and 3).
Under this model, <strong>the</strong> equality standards are inclusive <strong>of</strong> women’s experiences. It also introduces
measures necessary for addressing women’s historical disadvantage and structural impediments to
equality. Though this model has few limitations, it has been found to provoke, on occasion, a negative
response in <strong>the</strong> form <strong>of</strong> backlash, for instance, men’s groups have argued that it gives women unfair
advantages, or that <strong>the</strong> measures are too costly. It is <strong>the</strong>refore important, when employing this model,
to devise ways to prevent it from appearing as a competitive model between men and women, but
ra<strong>the</strong>r as a means for addressing past disadvantages. In this way, women’s differences can be taken
into account in a manner that is at once both positive and consistent with principles <strong>of</strong> equality.
c. CEDAW’s definition <strong>of</strong> discrimination against women
The definition <strong>of</strong> “discrimination against women” provided in CEDAW (Article 1) is:
“…<strong>the</strong> term ‘discrimination against women’ shall mean any distinction, exclusion, or restriction
made on <strong>the</strong> basis <strong>of</strong> sex which has <strong>the</strong> effect or purpose <strong>of</strong> impairing or nullifying <strong>the</strong> recognition,
enjoyment or exercise by women, irrespective <strong>of</strong> <strong>the</strong>ir marital status, on a basis <strong>of</strong> equality <strong>of</strong> men
and women, <strong>of</strong> human rights and fundamental freedoms in <strong>the</strong> political, economic, social, cultural
civil or any o<strong>the</strong>r field.”
Some important elements <strong>of</strong> this definition to understand are:
– Discrimination can take different forms (i.e. distinction, exclusion or restriction);
– The grounds for discrimination can include sex and marital status. This has also been
interpreted by <strong>the</strong> CEDAW Committee to include o<strong>the</strong>r grounds such as pregnancy, breastfeeding
and widowhood;
– It prohibits discrimination in ei<strong>the</strong>r purpose (direct discrimination) or effect (indirect
discrimination);
An example <strong>of</strong> an indirect discrimination case from Australia involved a company that had
recently revised its policy to begin employing women. Subsequently, it introduced a ‘last hired
first fired’ policy. Although seemingly a gender-neutral policy, <strong>the</strong> subsequent firing policy
had a disproportionately adverse effect on women employees who, having been hired more
recently, were <strong>the</strong> first to be fired.
– Discrimination in all spheres is addressed, including <strong>the</strong> private sphere(i.e. homes, private
organisations).
The CEDAW Committee has also recognised violence as a form <strong>of</strong> discrimination against women
(General Comment 19)
d. Intersectional discrimination
Discrimination against women can be compounded by discrimination on o<strong>the</strong>r grounds such as race,
disability, age, ethnicity, caste, sexual orientation and so on. Ra<strong>the</strong>r than considering each as an
independent ground criteria for discrimination, <strong>the</strong> concept <strong>of</strong> intersectional discrimination recognises
that two or more forms <strong>of</strong> discrimination may combine to create new forms <strong>of</strong> discrimination against
women, e.g. sexual violence directed at women <strong>of</strong> a particular ethnic group; forced sterilisation <strong>of</strong>
indigenous women or women with disabilities; and forced eviction <strong>of</strong> widows.
16 WOMEN’S RIGHTS TO ADEQUATE HOUSEING AND LAND