"The Intersection of Race, Ethnicity and Gender in the
Context of Temporary Special Measures"

Working paper prepared by the
Human Rights Institute (Columbia University Law School),
International Women's Rights Action Watch Asia Pacific (IWRAW Asia Pacific),
and the Gender Justice Project in the Americas (American University)
with comments from members of the Women's Human Rights Caucus

and

Presented to the CEDAW Committee on 2 July 2001

I. Background Information

The Human Rights Institute, IWRAW Asia Pacific and the REG Justice Project have come together to draft this document in order to share with the Committee the ways in which groups working around issues affecting women from discriminated groups are beginning to reconceptualise temporary special measures. The Women's Human Rights Caucus (the women's caucus) for the UN World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (the World Conference) has been promoting new ways of understanding and working around the intersection of multiple forms of discrimination. As part of the group of women working in the women's caucus, and with the input of some of other members, we hereby share some initial recommendations on the ways of addressing race, gender and racial based discrimination in the CEDAW general recommendation on temporary special measures.

The women's caucus comprises women's groups and representatives from organisations that are committed to the elimination of all forms of discrimination. It is our priority to highlight how experiences of racial/ethnic and gender discrimination intersect with other forms of exclusion such as class, nationality, religion, sexuality, disability and other status. Until now, we have been actively exchanging information in order to strengthen our advocacy around the World Conference. After the second Preparatory Conference in Geneva, some of us decided to make a contribution in regard to the question of temporary special measures in relation to CEDAW. This working paper is the result of a joint effort.

In order to initiate an on-going dialogue with the Committee, we have limited our scope to race, ethnicity as it intersects with gender. Moreover, as caste based discrimination and xenophobia are not always considered to fall within the parameters of racial and ethnic discrimination, we find it important to include these issues as part of this analysis. It is also important to note that in the future, we wish to be able to develop a more inclusive analysis that will include the interplay of other elements such as nationality, religion, sexuality, and disability, among other statuses.

We feel that in order to contribute to efforts already undertaken by UN agencies and bodies such as CERD and CEDAW to mainstream gender into the World Conference, it is important for us to begin to analyse and systematise experiences that highlight the inter-relation of all the forms of discrimination experienced by women from marginalised groups. In this regard, and keeping in mind the relationship of women and their communities, it is also important to note that the intersection of multiple forms of discrimination experienced by the targeted/subordinated groups, are both, a cause and an effect of poverty and lack of resources. Many of the experiences we gathered point to the fact that often, subordination is closely related to economic status and that class based discrimination often shapes the experiences of women from discriminated groups.

Moreover, the World Conference has presented a challenge in regard to the need to acknowledge how "invisibility" contributes to the further marginalisation of groups of victims of racism, racial discrimination, xenophobia and related intolerance. When racial, ethnic and other groups are rendered invisible due to obstacles to the recognition of one or various forms of discrimination operating at the same level, this should be seen as discrimination (article 1 of CEDAW). In this regard, the only way to counter discrimination is by taking proactive steps for making marginalised groups visible and the voices of subordinated individuals within those groups, in particular women, heard. In this sense in addition to adopting immediate measures, states need to craft on-going policies and programmes to counter institutional racism. Consequently, temporary measures for addressing the impact of the intersection of multiple forms of discrimination should be considered from a broad perspective.

Seen from an analysis that addresses intersectional discrimination, temporary special measures need to be formulated and implemented at all levels. For example, in relation to process, we need to increase women's participation in decision-making bodies that design and implement affirmative action policy aiming to improve the situation of diverse marginalised communities. In relation to outcome, the multiple layers and ramifications of benefits resulting from affirmative action need to be closely evaluated in order to assess actual impact.

We express our support to the CEDAW Committee in regard to its contributions to the World Conference and in particular the initiative to prepare a general recommendation on temporary measures (art 4.1) that will promote legal and policy initiatives to improve the situation of all women, including those that experience multiple/intersectional forms of discrimination. We therefore have attempted to compile and recommend actions that encompass temporary special measures around some of the main themes of the World Conference from the following perspectives:

II. Race, Ethnicity and Gender: CERD, CEDAW, CESCR

One of the ways UN Treaty Bodies have contributed to advancing a vision of human rights that strengthens notions of indivisibility and universality. In particular, through the development of general recommendations that provide basis for expansive interpretation of rights in ways that respond to the need for governments to respect, protect, ensure and fulfill rights at all levels. In this regard, we hereby provide examples of the ways recent developments may be used as guidelines for addressing race, ethnicity, gender in ways that encompass a wider range of difference such as economic status, nationality, sexuality, disability status, etc.

CERD: General Recommendation XXV on the gender dimensions of racism has been instrumental in mainstreaming gender into the work of the Committee around the Race Convention. In this regard, a dialogue among CERD and CEDAW would be timely. CERD has developed expertise in temporary special measures and CEDAW has often addressed gender issues in ways that appropriately point to the needs of sub-groups of women across a wide range of difference. Considering the strengths of both committees, present exchanges among CERD and CEDAW would be benefit women who experience intersectional discrimination.

CESCR: As an example of "best practice", General Recommendation XIV on health specially takes note of the social factors that determine women's standard of health and access to healthcare thus, opening way to a gender perspective that also takes note of the intersection of multiple forms of discrimination. In this regard, availability and access of means to fully fulfill the right to health are part of the analysis. For this reason, it would be interesting for the CEDAW Committee to expand on the content of this general recommendation, particularly in regard to affirmative action for women from discriminated groups to access health services. At the same time, dialogue and exchanges among the CEDAW Committee and the CESCR, particularly as the latter is preparing a general recommendation on gender, should be considered as a means to strengthen expertise of all treaty bodies in regard to the intersection of multiple forms of discrimination.

It must also be acknowledged that the CEDAW Committee by virtue of the fact that the CEDAW Convention does, in itself, crosscut a wide range of issues and categories has often acknowledged and addressed differences among women taking note of racial, ethnic, nationality and other dimensions. Furthermore, considering the need to mainstream a gender perspective that appropriately corresponds with an ethno-racial analysis of human rights protections necessary to eliminate racism, racial discrimination and related intolerance, the Committee is in a particular position to provide guidelines on how to address the experiences of women in ways that encompass temporary special measures as a priority in all areas of the Plan of Action of the World Conference.

III. Recent Advances in Addressing Intersectional Discrimination

a) UN Expert Group Meeting on Race and Gender Discrimination

The UN Expert Group Meeting on race and gender discrimination provided us with an opportunity to initiate a dialogue among experts, NGOs and the UN bodies on the importance of acknowledging multiple forms of discrimination as they intersect with race, gender, ethnicity and other status.

As expressed in the background paper of the UN Expert Group Meeting on race and gender discrimination:

b) The 45th Session of the Commission on the Status of Women

Another opportunity for dialogue among NGOs, inter-governmental bodies and experts was provided in the CSW. At this point, it was possible to build on and strengthen the recommendations of the Expert Group Meeting on race and gender discrimination.

Some important points of the agreed conclusions by the CSW on gender and all forms of discrimination, in particular racism, racial discrimination, xenophobia and related intolerance are that governments and inter-governmental bodies should:

Having developed an initial framework for addressing intersectional discrimination, it seems that the current challenge is to be able to integrate and further this analysis into key issues of the World Conference such as temporary special measures. For this reason, we find of importance to initiate on-going discussions and exchanges among the CEDAW Committee, NGOs participating in the World Conference and groups with expertise and experience in this field.

c) The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance

It is important to note the fact that the regional document that develops temporary special measures on a wider range of issues and across themes is the Draft Declaration and Plan of Action of the Regional Conference of the Americas (the Santiago Document). In this regard, it is also necessary to note that this document has a section on victims of aggravated and multiple discrimination. As there is no agreed draft outcome document available for the World Conference, it has been considered that previous commitments will make it easier for NGOs to identify areas that should remain in the document.

As of June 15th, the Draft Declaration of Durban Principle 19 states: "We recognize the necessity of affirmative action or special measures for the victims of or persons vulnerable to racism, racial discrimination, xenophobia and related intolerance in order to rectify their disadvantaged position in society and the historical wrongs committed against them, because past discriminatory policies directed against them. Measures for effective action should aim at correcting the conditions that impair the enjoyment of rights and the introduction of special measures to encourage equal participation of all racial and cultural, linguistic and religions groups in all sectors of society and to bring all on equal footing. Those measure should include, inter alia, special quotas in educational institutions, housing, political parties, parliaments, institutions, employment, specially in the judiciary, police, army and other civil services, as well as electoral reforms, land reforms and campaigns for equal participation."

"We underscore the need to design, promote and implement at the national and international levels strategies, programmes and policies, and adequate legislation, which may include measures of affirmative action [special/positive measures], for furthering equal social development and the realization of the civil, political, economic, social and cultural rights of victims of/[individuals] and groups [affected by or vulnerable to] racism, racial discrimination, xenophobia and related intolerance, including through more effective access to the political, judicial and administrative institutions, as well as the need to increase/promote access to [the national administration of justice], free from racial discrimination and related intolerance of any kind; as well as guaranteeing that the benefits of development, science and technology contribute effectively to the improvement of the quality of life of these populations."

One current concern is that as the final version of the outcome document is being drafted, areas essential to women, particularly in regard to the recognition of the intersection of multiple forms of discrimination will be eliminated from the document. It is for this reason, that we find it of special importance for the Committee to continue to provide guidelines in regard to all the themes of the conference and specifically, in regard to temporary special measures.

After highlighting the advances already made at the inter-governmental level and our concerns in regard to strengthening the gender dimension in the World Conference, we aim to contribute information on the realities and accounts by victims of multiple forms of discrimination. We feel that this information will be able to assist the Committee in highlighting the situation of discriminated groups.

IV. Methodology: Making Experiences Visible

The following guidelines were sent to members of the listserve of the women's caucus to the World Conference. In this connection, we have received input and hope to continue to gather information related to temporary special measures throughout the processes related to the World Conference.

In accordance to our guidelines the question of temporary special measures could be considered from any of the following perspectives:

a) Considering the experiences of minority women in regard to measures aimed at improving the situation of all women. In other words, we would be assessing the actual needs of victims of intersectional discrimination from a racial/ethnic discrimination lens.
b) Considering the experience of women in connection to measures aimed at improving the general situation of their groups and communities. In other words, we would be assessing the actual needs of victims of intersectional discrimination from a gender lens.
c) Considering the experiences of women from marginalised groups in relation to measures that incorporate the ethno-racial and gender perspective.

Thus, some of the areas we have identified to group possible case studies and experiences with temporary special measures are:

V. Contextualising Temporary Special Measures

This section will illustrate through the use of case studies and by the elaboration of recommendations, the varied ways in which temporary special measures need to be contextualised and determined. These include the need to be creative in identifying temporary special measures and the different forms it can take. Among other things, there is a need to ensure that enabling conditions are in place so that women can access temporary special measures, a need for protection against backlash and unintended adverse effects that result from a temporary special measure as well as a need to monitor effectiveness of the measures and establish complaints mechanisms.

a) Education

The process by which the temporary nature of special measures is assessed should include members of discriminated groups in decision-making. At the same time, new areas for policies must be identified as equality in one field may not be sustained unless other underlying factors that contribute to the marginalisation of women from discriminated groups are addressed.

b) The Workplace/Employment

A large number of women from minority groups work in the informal sector. Their work is not regulated and they often can't access complaints mechanisms or remedies in cases where they experience discrimination, particularly when they are domestic workers. Some examples of the subordination of domestic workers along racial-ethnic-gender lines are:
According to a 1999 National Survey on Households in Peru, more than 100,000 indigenous girls between the ages 14 and 17 work in domestic service, earning half the basic wage. Afro-Uruguayan women earn 50% less than Afro descendent men and 40% less than white women. Most of them are employed in domestic service.

For this reason, affirmative action policies in employment must also aim to improve the situation of women from discriminated groups working in the informal sector.

Often women from discriminated racial/ethnic groups do not have enough access to education and training and thus, only a small percentage compete for posts with women that come from groups that now enjoy opportunities to education, training and opportunity. It is still common to see job advertisements that describe the "ideal candidate" as a young woman who should not only be qualified but also be of "good appearance." Even if a woman from a marginalised group applies for a position and she is qualified often: (a) either her qualifications will be questioned as she may not be considered "bright" or (b) she will be told she does not "good appearance," particularly if she can be easily identified with a particular racial/ethnic group.

At one level, it is clear that racist and gender stereotypes around "good appearance" place barriers to the advancement of women at many levels. Thus, article 5 of CEDAW should be interpreted in ways that are more inclusive.

At another level, the impact of racist attitudes and gender bias in the labor market causes the small number of minority women who try to compete to be excluded. Thus, the inter-locking nature of various forms of discrimination requires multiple layers of action. If a woman is provided an opportunity to study but cannot find work or continues to earn lower wages, does she benefit from a temporary special measure?

c) Women's Participation in Political Processes

Testimony from Perú by the current president of Fedecma de Ayacucho, an organisation that groups together more than 100,000 women in a region:

Based on this illustration, even if a quota system had been in place, the conditions to enable effective participation in political processes would have required capacity-building, media sensitisation, resources to support campaign and incentives for families and communities to support women's nominations.

Through a constitutional amendment in 1992, 30% of seats were reserved for women in all panchayats - local government bodies of elected representatives - in India. It had two important features. The one-third minimum reservation was not only in total membership but also among seats reserved for the weaker sections of Scheduled Castes and Scheduled Tribes proportionate to their population in the area. Secondly, the reservation was also extended to the posts of chairpersons which, particularly at the village level, has the elements of chairperson as well as chief executive and therefore carries special attraction and expectation in the rural communities.

From the experiences of India and Nepal, it is seen that women need support of different social institutions to enable them to perform their role in panchayats or local decision-making bodies, effectively because they have to continue their domestic responsibilities as well as earning of livelihood. This is particularly so in the case of women from the weaker sections. They need (a) information about reservations and election (b) encouragement/motivation to women to contest (c) support in election processes and (d) consultation and support to carry on the panchayat work They need support from informal institutions -the family, the neighbours, other community members and caste persons as well as from the more formal institutions of government, political parties, other Panchayat representatives, government officials and women's organisations in the context of their new role and responsibilities in panchayats.

In regard to the need to train Afro-Brazilian women to assume position of power, Benedita de Silva, the Vice-Governor of Rio de Janeiro shared the following thought with leaders from the Sfro-descendant women's movement: "Have you thought about investing in yourself, to enable to confront the challenges that lay ahead? We are investing in ourselves, in our leaders, to be able to compete, even in difficult moments, in public life."

Considering the barriers and hostility women from racial/ethnic groups tend to find in the political processes, affirmative action policies in this regard must be formulated in ways that respond to the need to increase chances of success in highly competitive environments. Programmes that facilitate access to economic and human resources to support a political campaign should be designed.

d) Standard of Living

Health: Marginalised women and girls have little access or no access to the highest standard of health as a result of the lack of adequate physical, mental, reproductive, community-based or culturally appropriate health care in terms of preventive or treatment-based services. For example, as structural adjustment programmes have pointed to the privatisation of health care in many countries, cures and services are now unavailable to marginalised sectors of society. Affirmative action polices to access health care should be considered a remedy to structural discrimination.

e) Gender Sensitive Services

In urban centers in Bolivia "where two thirds of the population speak Spanish, the risk of death for women who speak only Aymar or Quechua is higher." As an example of "best practice", affirmative action policies should employ Aymar/Quechua speakers in health care centers and should also be implemented to facilitate access to certain services.

f) Access to Justice

As noted by reports by Human Rights Watch and the U.N. Special Rapporteur on Violence Against Women, in the United States the majority of women in prison tend to be women from racial and ethnic "minority" groups and thus, suffer multiple oppression. Many have experienced violence and other forms of abuse that contributed to their circumstances leading to their incarceration. Most are low income, and a significant percentage has been incarcerated for non-violent offences, such as welfare fraud. All women, and particularly racial/ethnic minority women, are more likely to be subject to custodial rape by police and other criminal justice personnel. They also tend to experience gender discrimination throughout the judicial process and few have access to justice. Moreover, because the majority of female inmates are mothers, the effects of the increase of female incarceration will have long-term cumulative adverse effects in their families and their communities.

In this regard, affirmative action policies and programmes that aim at building capacities for women of communities where there are "high levels of crime" are needed. At the same time, programmes to assist women borrow money, manage welfare, etc. should also be established. Furthermore, access to justice entails processes that are not only gender sensitive but also processes where the ethno-racial perspective is considered. Alternative programmes should be implemented in order to avoid incarceration, particularly for single mothers charged with non-violent offenses. Affirmative action policies in the criminal system should point to innovative ways to assist women break from cycles of subordination. Moreover, complaints mechanisms and remedies should be considered as special measures important to helping women be reintegrated into society.

g) Citizenship

Roma peoples are often denied the right to citizenship. The consequences of this exclusion from the public sphere (exercising political rights, accessing services) are evident in the private sphere where for example, Roma women do not have a choice for sending their children to school. Even in cases where there are schools for Roma children, they are treated as "second class" citizens and are educated in ways that discriminate against their origins.

It is necessary to acknowledge that class, race and gender continue to function as obstacles to exercising citizenship in ways that enable minority groups to benefit from the possibilities that exist for the rest of the collectivity. In this sense, affirmative action policies need to be put in place in order to ensure basic needs of non-citizens are met, on the basis of basic standards of equality and non-discrimination.

In the Dominican Republic, Haitian migrant workers and refugees are considered "in transit" and thus, do not have citizenship rights. Whether children are born of third generation Haitian born in the Dominican Republic, as children of parents "in transit" they never obtain citizenship or nationality rights. Thus, the daughter of a Haitian refugee born in Dominican Republic was only allowed to go to school because the institution believed that her citizenship "problems" could be solved before she graduated. She was the best student in her class and won a contest at the national level. She was denied her diploma and the benefits of the prize as she was an "outsider". Two years after completing her studies she has not been able to receive her diploma and it is possible that the case may be brought to an international human rights body.

The most important issue highlighted in this case studies is that structural problems of marginalisation should be addressed by special measures.

At the same time, raising the concern for "forced assimilation" into a dominant culture, affirmative action policies need to take into account realities and needs of minority children in regard to access to education. Access to education should be interpreted in ways that provide for bilingual education and ensure the non-discriminatory approach in regard to the ways ethnic/racial/gender differences are portrayed.

Francoise fled Rwanda when she was eight months pregnant. Her only living relative, Bratrice was living in Quebec. Desperate Francoise found herself in Chile seeking to obtain refugee status in Canada. Her son, Jesus was born in Chile and is considered stateless, she has been in Santiago two years and has already been granted refugee status. She has a working permit issued by the government, no welfare assistance and no support for her child. There is no programme to help her learn the language and because she is Black, nobody will give her work.

Temporary special measures should approach the realities of refugees and internally displaced women from a perspective that empowers them. Access to information, legal aid and capacity-building need to be important components of programmes specially designed for non-citizens.

h) Unintended Negative Effects from Temporary Special Measures

Colombia is one of the few countries in Latin America that has recognised afro-descendants as a disadvantaged group in the Constitution (1991). As a result, a Law on the Rights of Afro-descendant Communities was passed. Subsequently, this law was considered by the Supreme Court as an affirmative action measure aimed at improving the situation of Afro-Colombians that provides, among other things, opportunities to benefit from measures in regard to political participation and land titles. As is often the case in regard to the problem of over-inclusion, the situation of Afro-descendant women was not addressed and thus, only men are currently benefiting from affirmative action aimed at Afro-colombians. At this point, women find themselves in a position in which they cannot access the benefits of this law in order to improve their situation, some are not considered "qualified" by members of their communities. Afro-colombians find themselves in a position where no affirmative actions aimed are women or afro-descendants benefit them. This is of particular importance in the context of an on-going armed conflict that has caused large numbers of afro-descendant women to be internally displaced.

Affirmative action measures that respond to specificity need to be provided within affirmative actions that aim to benefit a larger group. For example, policies aimed at benefiting Afro-descendants should also specifically refer to the need to develop affirmative action policy that aims to benefit afro-descendant women.

A dalit boy is provided an opportunity to attend a private school in a big city. The community threatens to rape his mother if he accepts. This case study shows how women's vulnerability to certain forms of violence is used as coercion to keep them and their families from advancing. Affirmative action polices are often considered interventions by "outsiders" that threaten cultural values.

At the same time it is also important to note that even when accepting to attend private schools, dalit children often drop out. Often times, teachers discourage children from pursuing their goals and segregation is practiced thus, creating a hostile environment for children from discriminated racial/ethnic groups.

When minority women and their children "opt out" of benefits of affirmative actions, it is necessary to consider the factors that contribute to such results. In this regard, affirmative actions need to be monitored in ways that actual impact and context can be assessed.

A minority woman living in a marginalised community in an urban setting is suddenly promoted in the workplace as a result of an affirmative action policy. She begins earning more and her husband begins to question her behavior and begins to batter her regularly. Monitoring the impact of Affirmative Action policies should take into account "backlash" in the private sphere/community level in order to provide effective protection to women who may find themselves in vulnerable positions resulting from the "benefits" of temporary special measures.

A woman is benefited by a certain temporary measure designed in ways that she is the only person in her family and community to be granted a scholarship in a decade. Because she refuses to marry and quit school, she is isolated and lacks support systems. As a result, she migrates to the city.

Do such polices contribute to the advancement of communities or is implementation so rare that the gap between members of one community, particularly among women, increases?

VI. Recommendations

These bodies should endorse participatory processes and ensure the representation of disadvantaged women in all processes and at all levels. At the same time, a gender and human rights perspective should be integrated into the work of these independent bodies. Some of the main responsibilities of the monitoring bodies would be:

We hope that the committee may establish ways to continue an on-going dialogue with NGOs on temporary special measures and that this discussion will be taken up the world conference against racism and beyond.

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