Defining Discrimination against Women

last updated December 2014

 

In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women's Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.

 

Defining Discrimination against Women    

Legislation should broadly define discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” (See: Convention on the Elimination of All Forms of Discrimination against Women, Article 1) Legislation should also recognize that widows are entitled to freedom of movement, to access to social, educational or health services, to choose her residence, diet, attire and lifestyle, as well as equality with men in terms of citizenship. (See Model Charter for the Rights of Widows, Art. 4) In addition, legislation should protect widows living with or affected by HIV/AIDS by prohibiting discrimination based on HIV/AIDS in the sale, lease, inheritance or disposition of other property. (See: Canadian HIV/AIDS Legal Network, Respect, Protect and Fulfill: Legislation for Women’s Rights in the Context of HIV/AIDS, Vol. Two: Family and Property Issues, 2009, §5-7)

 

Promising Practice: On September 12, 2010, a constitutional referendum was held in Turkey, and the results are codified in Law 5982.  Several amendments to Turkey’s 1982 Constitution were approved, including to Article 10, “Equality Before the Law.”  The revised Article 10 clarifies that measures taken to ensure the equality of men and women “shall not be interpreted as contrary to the principle of equality.” This change removes an important barrier to the passage of legislation focused specifically on women, namely the argument that such legislation is discriminatory on its face because of its gender-based focus.

 

Specific Forms of Discrimination against women and widows

Discrimination against Women with Respect to Marriage

  • Legislation should guarantee women equal rights and responsibilities in marriage with men, irrespective of the form of family or the religion, custom, tradition or legal system under which it is established. Drafters should realize that discrimination against women in marriage encompasses several issues, including their civil status, ability to enter a marriage of their own choosing, legal capacity to own and administer property, right to inherit, right to maintain or change nationality, and rights and responsibilities with regard to their children. Legislation should address and prohibit discrimination in all of these areas to promote and protect the rights of widows.
  • Legislation should require the free and full consent of both parties to enter into a marriage and fully protect a woman’s right to choose, when, if and who she marries. (See: Forced and Child Marriage). Legislation should provide the same legal protections of equality of status between parties in de facto marriages, customary and non-formal marriages as those conferred upon parties in formal civil marriages. CEDAW Gen. Rec. Nos. 21, 29. Legislation should state that both parents have the same rights and responsibilities for the care, maintenance and protection of children. See: Section on Discrimination against Women with Respect to Children.
  • Drafters should repeal laws and prohibit practices that disallow women from entering into contracts; disallow women from accessing financial credit or preconditioning their access on male consent or guarantee; restrict a woman from holding property as the sole owner; disallow women from administering their own business; limit a woman’s right to effectively realizing or retaining her right to shared property with a man; limiting a woman’s right to seek a remedy before the courts; assigning a woman’s testimony or evidence lesser weight than a man’s before the law, and; restricting women’s right to choose her domicile on the same basis as men. Laws should prohibit laws and practices that allow polygamous marriages. (See: Polygamous Marriages in Forced and Child Marriage Section)
  • Legislation should ensure that women enjoy the same right to own, manage, use and dispose of property. Specifically, laws should protect women’s right to own, administer and dispose of equal shares of property during marriage and at its dissolution. Drafters should repeal or amend laws that grant males a larger share of property at the dissolution of a marriage or upon a spouse’s death. Upon division or distribution of joint marital property, legislation should accord equitable weight to monetary and non-monetary contributions, including unpaid domestic labor or agricultural work, to that property. Finally, legislation should ensure that women have an equal right as men to be beneficiaries of agrarian reforms and land redistribution schemes. (See: Section on Discrimination against Women in Land and Property Rights).  
  • Legislation should ensure that wives and husbands are entitled to inherit on an equal basis, including in equal shares and equal rank in the line of succession, upon the death of the spouse. Drafters should repeal any laws that prevent women from inheriting on an equal basis as men or that grant restricted rights of inherited property to a woman. (See: Section on Discrimination against Women in Inheritance).
  • Legislation should make modified or partial community of property the default legal regime with regard to marital property. (See: Section on Marital Property Systems)

 

(See: CEDAW, General Recommendation 21, Equality in Marriage and Family Relations)


Illustrative Example:


The Legal Capacity of Married Persons Act 9 of 2006 in Lesotho abolished multiple discriminatory practices that had been placed on women in marriage. Specifically, the law repealed the notion of “marital power”, which granted husbands power to control his wife’s actions:


Part II. (3) The following restrictions which the marital power places on the legal capacity of a wife are removed


(a) entering into a contact;


(b) suing or being sued;


(c) registering immovable property in her name;


(d) acting as an executrix of a deceased’s estate;


(e) acting as a trustee of an estate;


(f) acting as a director of a company:


(g) binding herself as surety; and


(h) performing any other act which was restricted by any law due to the marital power before the commencement of this Act.


The law specifically made the repeal of marital power applicable to common law marriages and customary marriages.

 

CASE STUDY – Discrimination in Respect to Citizenship and Residence Laws

To ensure full equality for women and men in marriage, legislation should recognize that widows are entitled to freedom of movement, to choose her residence, as well as equality with men in terms of citizenship. (See Widows for Peace Through Democracy, Model Charter for the Rights of Widows, Art. 4) The rights of women and widows to citizenship has been an issue around the world. Kenya’s Constitution 2010 specifies that “citizenship is not lost through marriage or the dissolution of a marriage.” (Art. 13(3))


In The Attorney General of the Republic of Botswana v. Unity Dow, 103. I.L.R. 128 (Bots. Ct. App. 1992), the plaintiff Unity Dow, a female citizen of Botswana, successfully challenged the legitimacy of Botswana's Citizenship Act on the constitutional ground that the Act unlawfully discriminated against her on the basis of her gender. Under Botswana's Citizenship law, citizenship was denied to the children of a female citizen married to a foreigner. The court of original jurisdiction found, and the appellate court upheld, that the Citizenship Act in this respect unconstitutionally discriminated against women. Significantly, to make this finding, the court rejected the argument that the absence of gender or sex as protected classes in the Botswana Constitution was an intentional reflection of the patriarchal nature of the society.  In reasoning to conclusion on this point, the lower court cited to a variety of cases from around the world, including the United States Supreme Court case South Dakota v. North Carolina, 12 U.S. 268 (1940), in which Justice White wrote that all of a Constitution's provisions “bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purpose of the instrument.”


The United States recently repealed a law that had a negative impact on the immigrant spouses of US citizens. Before the law was changed, immigrant spouses of US citizens could be deported from the United States upon the death of their citizen spouse. The so-called “widow-penalty” was ended in 2010 with passage of new immigration legislation. Watch a video about the impact of the “widow-penalty” in the US.


Discrimination against Women with Respect to Children

  • Legislation should state that laws and practices that deny women equal rights and responsibilities with regard to their children constitute discrimination against women. Drafters should repeal laws and prohibit practices that automatically transfer guardianship to someone other than the mother upon the father’s death or dissolution of the marriage. Legislation should prohibit practices that allow a testator to will the guardianship of children to a person not their mother and state that any such provisions that do so are null and void.
  • Laws should state that both parents, regardless of marital status, share equal rights and responsibilities for their children, including with regard to their guardianship, wardship and trusteeship. In cases where a child is conceived and born of an act of sexual assault, however, legislation should deny these equal rights, custody, guardianship, wardship and visitation privileges to the biological father who committed the rape.
  • Laws should state that a child has the right to know and be cared for by his or her parents, and the right to his or her identity, including family relations. Laws addressing the maltreatment of widows should state that a child may not be separated from the mother/widow against her will upon the death of the husband/father.

 

Discrimination against women in land and property rights    

  • Legislation should guarantee women equal rights to conclude contracts and to administer property. Specifically, legislation should grant women the independent right to enter a contract and access credit without requiring her husband or male relative’s permission or guarantee. Laws should treat women and men equally in all stages of procedure in courts and tribunals.
  • Land reform and redistribution programs should ensure women’s right to be a beneficiary of these schemes on equal terms with men. Legislation should take into account traditional roles and how it may impede women’s access to land in registration systems. Administrative forms that employ the “head of household” concept discriminate against women in practice and should either eliminate this concept or else include other measures to ensure women’s equal access. For example, land redistribution programs that require registration by the household head should ensure that such land is titled jointly in both spouses’ names, even if only one spouse registers.

Tool: Women, Business and the Law – Using Property is a World Bank database of legal information on women’s access to and use of property by country, including the marital property regime, the joint titling regime and any applicable presumption of joint titling, inheritance rights, as well as women’s rights over moveable and immovable property. Data is available for most countries in the world.


Discrimination against women in inheritance

  • Legislation should state that men and women in the same degree of relationship to a deceased are entitled to equal shares in the estate and to equal rank in the order of succession. Legislation should extend this equality of status in inheritance to intestacy cases. Drafters should repeal laws and prohibit practices that discriminate against women and girls in inheritance, including: disallowing females to inherit from their husbands or fathers, preventing women and girls from inheriting equal shares or on an equal rank as males, disallowing them from executing a will, curtailing the full inheritance rights of female heirs to only limited or controlled rights or only income from the deceased's property.

 

(See: CEDAW, General Recommendation 21, Equality in Marriage and Family Relations.)