Frontiers of Gender Equality: Transnational Legal Perspectives (Pennsylvania Studies in Human Rights)

Image of Frontiers of Gender Equality: Transnational Legal Perspectives (Pennsylvania Studies in Human Rights)
Release Date: 
May 30, 2023
University of Pennsylvania Press
Reviewed by: 

This is a substantive, as well as rather substantial (616 pages) publication, whose primary task is to analyze international and regional human rights treaty legislation designed to eliminate gender discrimination and to secure gender equality.

Divided into three parts, the publication presents a series of very thoughtful essays from a number of renowned legal experts on (a) what is gender equality (being “equal” not to be confused with being the same, as is frequently stressed, though the condition of different and equal has been hard to envisage or achieve); (b) how human rights treaty systems can advance the case of gender equality better; and (c) how can the concept of gender equality evolve continually to meet new social realities?

It is fair to say that while a number of authors provide detailed case material on the concrete application of human rights treaties, the essays are strongest in terms of their consideration of the letter of the law. They also demand some more than basic knowledge of these treaties from the average reader.

A number of international treaties are addressed through these essays with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979), often called “the bill of rights for women,” receiving priority attention. Several writers note that it assumes binary and heteronormative relationships as the model; that promotion and achievement of gender equality is still framed as women’s business (very little interest is directed to encouraging men into a caring role, for example!); and that moving from formal to substantive equality, requires consideration of other intersecting dimensions such as race, class, ethnicity, religion, nationality, ability etc, in recognition of the fact that not all women are living the same lives, nor indeed all men.

Several writers quote Kimberly Crenshaw’s foundational essay on “intersectionality” at length. Crenshaw convincingly skewered a top-down approach to addressing discrimination of all kinds, claiming that feminism and anti-racist politics had failed all of those individuals and groups who face both discriminations simultaneously.

Since CEDAW was adopted by the United Nations in 1979 there have been several attempts to broaden and strengthen its original scope through a variety of Recommendations (e.g. CEDAW Recommendation on Violence Against Women (1992); on Female Circumcision (1990); on Measurement of and Quantification of the unremunerated domestic activities of women and their recognition in the Gross National Product (1991); on Disabled Women (1991));and through Protocols such as the CEDAW Optional Protocol, which came into effect in 2000 and establishes complaint and inquiry mechanisms for individuals who consider that their rights under CEDAW have been violated.

Another more recent international framework that attempts to address a range of development goals, the United Nations Sustainable Development Goals and Agenda 2030, which includes Sustainable Development Goal (SDG) 5, “to achieve gender equality and empower all women and girls” is also examined, and found wanting, inter alia for its emphasis on quantitative over qualitative or substantive aims, and its negligible attention to the “causes and consequences of the subordination of diverse subgroups of women.”

These essays are at their best when addressing the minutiae of the letter of different treaties, and whether they enforce or undermine each other. Inevitably, several essays indulge at length, in what will seem to the non-legally trained, as rather tautologous and self-evident discussions as to whether discrimination and subordination are wrong. (“Subordinated social groups also often receive less approval and attract less deference from others in society.”)

What is interesting and valid is the recognition by many of them of the aforementioned “intersectionality,” demonstrating that equality cannot be achieved unless different pre-existing conditions of individuals (age, race, class, gender, religion, education, income, etc.) can be addressed. As several of them note the need to fight discrimination can appear to be in conflict with the need to acknowledge special pre-existing needs of certain individuals, as the State, and private organizations strive to fulfil their obligation not to “treat any person as the inferior of others.” This apparent conflict is easily instrumentalized by those opposing gender or other equalities.

The most successful chapters combine theoretical discussion with detailed examples and case studies of the ways in which pre-existing inequalities and discriminations, encapsulated in traditional, gender stereotypes, affect the contents of legislation at all levels as well as its application.

Outstanding in this regard is Sandra Fredman’s chapter Challenging the Frontiers of Gender Equality: Women at Work in which she shows how “deeply neoliberal and patriarchal assumptions” that stigmatize and undervalue care work, on which women are assumed to have a near monopoly, have entrenched women’s disadvantage in the labor market in both public and private sectors. She also notes wryly that bringing more women into the workforce has not brought more men into the home. She also demonstrates how the rigors of the Covid pandemic lockdown have increased the care burden for many women, and increased the care gap between themselves and their male partners.

Many of the essays in this excellent publication hover around the question of the “transformative” potential of human rights law. However, in general, laws follow rather than lead positive social transformation. There are many examples where international and national legislation is slow in validating (and later sometimes denying) generally accepted social norms and values. The legalization and criminalization of abortion is a good example. Several essays discuss sex and gender stereotypes that underly discriminatory or subordinating behavior, and these discussions could have benefited from greater recognition that these stereotypes are constructed from a number of political, economic, religious, scientific and other forces, of which the legal system is only one

This situation has recently been succinctly expressed in an article in the New Yorker (June 19, 2023) on the epidemic of dowry deaths in India; “legislative action without social transformation has proved strikingly impotent. A culture in which women are not merely devalued but negatively valued can’t be reformed by a few well-drafted statutes.” (Lives in the Balance: Why Do Dowry Deaths Persist by Manvir Singh)

The letter of the law changes along with other influences that affect ideas about gender equality, and resurgence (or decline) in political, economic, religious, and other conservatisms, inevitably has an effect on ideas about gender equality and the likely application of existing laws.

The section on the regional treaties which have been developed to address gender equality in the Arab region, in Africa, in Latin America, and in Asia helpfully illustrates the limitations of Western human rights instruments in non-Western contexts and the persistence of Western colonial stereotypes.

International human rights treaties and gender equality legislation can only do so much, even allowing for supplementary recommendations and protocols. As stated above, the law is only one element in the mix of influences determining how gender equality is understood and maintained.

In this light it would have been helpful to have included more consideration of the ratification and reporting processes, particularly with respect to the CEDAW, to show the real practical limitations of even the most thoughtfully drafted instruments. Under CEDAW for example States Parties can ratify the treaty, while making a number of reservations to critical articles. And there are still countries that have not ratified, including the United States!

“Countries may ratify the Convention whilst making certain “reservations” or objections to certain Articles, if for example, they consider that the article is not consistent with existing national laws. Article 16, which pertains to the rights of women in the family, and Article 5, which deals with custom and culture, are the most reserved (against) articles. Some reservations made by countries concern areas of fundamental importance, such as the reservations made against Articles 1 and 2 concerning the need to eliminate discrimination and appear therefore to be inconsistent with CEDAW’s overall object and purpose.” (European Commission, 2006)

Effective application of these treaties requires the informed knowledge, commitment, and action of many public and private sector actors at many levels (treaty bodies, commissions, parliaments, NGOs, activist movements, religious bodies, media, etc.), and not least the actual or potential victims of gender inequality—and this complexity could have been addressed more directly, though it is glimpsed in some of the case studies.

A major issue of course is that human rights treaties need to be expressed in a way that is comprehensible to the mere humans they aim to protect, although this is clearly a challenge it is not insurmountable. Several treaties prior to their adoption by the UN undertook major social mobilization at many levels and media, and globally to secure support. This “popular” aspect tends to get buried after ratification. This is an expensive exercise and needs intricate planning and vision. However, the process of periodic reporting on implementation of human rights treaties by countries who have ratified, by both public and private institutions, does in principle allow for mainstreaming of these often abstractly expressed ideas, and the creation of bottom-up demand that is needed and called for.