"Guidelines
for Addressing Intersectional Discrimination"
María
Herminia Graterol, IWRAW Asia Pacific
13
May 2003
I. Introduction
These guidelines
explore ways in which the CEDAW Convention's framework can be
used in assessing the real situation of women who experience intersectional
discrimination on the basis of gender and other status such as
race, ethnicity, sexual orientation, marital status, age, religion,
etc. It is hoped that these guidelines will be used by groups
planning to present alternative information on the situation of
specific groups of marginalised women to the CEDAW Committee during
the review of States party reports.
Although we
have focused on guidelines that can be used by women's groups
when evaluating policies, legislation and programs aimed at improving
the situation of marginalised groups of women, we hope some of
the ideas presented encourage further consideration of these issues
by others. We feel it is necessary to undertake sustained efforts
in relation to developing a greater understanding of all the dimensions
of intersectional discrimination in order to:
1. Explore
approaches to apply the CEDAW Convention's framework as a tool
to analyse and address intersectional discrimination
2. Contribute
to a better understanding of the compounded effect of intersectional
discrimination and its impact on the advancement of marginalised
groups of women in order to suggest effective changes in law and
policy.
3. Contribute
to the expansive interpretation of principles of substantive equality
and non-discrimination as contained in the CEDAW Convention.
4. Suggest
various approaches to monitoring the implementation of the full
scope of human rights guarantees contained in other international
human rights treaties such as CERD, CESCR, ICCPR and CRC in light
of the commitments that resulted from the UN World Conference
Against Racism, Racial Discrimination, Xenophobia and Other Forms
of Intolerance
II. Overview of Various Approaches to Intersectional Discrimination
A significant
proportion of women experience distinct forms of discrimination
because they experience the effects of sexism, racism and other
forms of exclusion at the same time. For example, migrant and
refugee women experience distinct forms of discrimination because
they are targets of women's rights violations resulting from their
multiple identities: they are poor, they are women and they are
non-citizens.
Women experience
multiple barriers to equality when gender discrimination intersects
with (a) other forms of discrimination (such as discrimination
based on race, ethnicity, age, sexuality, religion, disability
status, citizenship, health status, etc) as well as (b) other
barriers (such as poverty, inequality in the private sphere, negative
stereotypes, rural residence, etc). Unfortunately, until now,
in most countries, intersectional discrimination is not recognised
in law, in policy or in practice.
To ensure
that all groups of women fully and substantively enjoy their human
rights, specific measures are needed to address the ways in which
women are differently affected in their enjoyment of a right as
a result of the intersectional discrimination based on sex with
discrimination based on other grounds. In this connection, the
Committee on the Elimination of Racial Discrimination has drawn
attention to the compounded disadvantages that discrimination
on the basis of race and sex may have on women and girls in its
General Comment XXV. At another level, the outcome documents of
the UN World Conference Against Racism, Racial Discrimination,
Xenophobia and Other Forms of Intolerance also acknowledge the
need to address intersectional forms of discrimination at the
national level.
| Intersectional
discrimination (also known as multiple forms of discrimination):
Intersectional oppression, marginalisation and/or exclusion
that arises out of the combination of various oppressions
(i.e. sexism, racism, xenophobia, homophobia, etc.) which,
together, produce something unique and distinct from any one
form of discrimination standing alone. The effect of multiple
forms of discrimination experienced by one woman is compounded
and therefore, leaves her in a situation of further disadvantage.
The
intersectional approach to address multiple forms of discrimination:
Takes into account the historical, social and political
context which recognises the unique experience of one woman
marginalised on several grounds. It allows for particular
experiences of discrimination to be acknowledged and remedied.
The
intersectional approach can help us determine: (1) the form
multiple discrimination takes and its nature; (2) the circumstances
in which it occurs; (3) the consequences of intersectional
discrimination; and (4) the need for appropriate remedies,
laws, policies and measures to be implemented at the national
level.
The
intersectional analysis requires: (a) A shift from a single
ground perspective to an analysis based on the assumption
that an individual's experiences are based on multiple identities
that can be linked to more than one ground of discrimination.
(b) An analysis based on the assumption that an individual's
experiences are based on multiple identities that can be
linked to more than one ground of discrimination.
|
Some benefits
of the intersectional approach are:
-
It
acknowledges the complexity of the forms of discrimination experienced
by marginalised groups of women;
-
It
recognises that the experience of discrimination may be unique
and takes into account the social and historical context of
the victims;
-
It
places the focus on society's response to the individual as
a result of the confluence of grounds of discrimination and
does not require women to slot themselves in to rigid compartments
or categories of identity;
-
It
addresses the fact that discrimination has evolved and tends
to no longer be overt, but rather more subtle, multi-layered,
systemic, environmental and institutionalised; and
-
It
reveals the extent of discrimination even if main groups affected
by a particular form of discrimination are "discreet and
insular minorities".
Note:
Most of the points from this section were taken from: "Discussion
Paper on an Intersectional approach to discrimination: Addressing
multiple grounds in human rights claims". Ontario Human Rights
Commission. (2002). Full copy available electronically <http://www.ohrc.on.ca>.
Also see background paper: "Towards the Progressive Interpretation
of temporary special measures under CEDAW" posted on the
same website.
III. Guidelines
on Intersectional Discrimination under CEDAW
If you are
interested in highlighting intersectional discrimination in your
shadow/alternative report to the CEDAW Committee, we recommend
you use this set of guidelines in conjunction with the general
guidelines on preparation of shadow/alternative reports.
a) Analysis
of specific articles of the CEDAW Convention that can be useful
to address intersectional discrimination:
Article 1:
The definition of discrimination
Analysis
of the terms of article 1 of the CEDAW Convention demonstrates
that the over arching framework of the Convention can be used
to approach intersectional discrimination. According to article
1, discrimination against women is:
-
Any
distinction (e.g. a regulation according to which women
need to obtain higher grades than men to enter engineering school)
exclusion (e.g. a law establishing women cannot apply
to University).
restriction (e.g. an institutional practice discouraging
indigenous women to apply to nursing school)
-
In
the law
(de jure) or in practice (de facto)
-
Made
on the basis of sex
(and gender stereotypes that perpetuate ideas of subordination
and inequality)
-
With
the effect or purpose (whether intended or unintended) e.g.
a gender neutral provision that establishes that only persons
that can read and write can exercise their right to vote may
have a disproportionate effect on women, as their illiteracy
levels are higher
-
Of
impairing or nullifying the recognition, enjoyment or exercise
-
By
women (as individuals or as a group)
-
Irrespective
of their marital status (and other status such as nationality,
religion, race, ethnicity, sexuality, etc.)
-
On
the basis of equality of men and women (and ensuring equality
among all women)
-
Of
human and fundamental freedoms in all fields (as contained in
the CEDAW Convention and other human rights instruments that
have contributed to the expansive interpretation of the human
rights of women)
Article
4(1): Recommends states to adopt temporary special measures
to accelerate de facto equality between men and women. In particular,
measures benefiting groups of women vulnerable to multiple forms
of discrimination.
Article
5(1): Establishes the obligation of the State to take appropriate
measures to modify the social and cultural patterns of conduct
that are based on the idea of superiority of: men over women,
of one race over the other, etc.
Article
14: Takes into account the specific problems of a particular
group of women, rural women. The measures recommended in this
article can be used as a starting point to frame recommendations
to the State.
b) Suggested
guidelines for assessing the situation of women who face intersectional
discrimination
1. Evaluating
the status of human rights and democracy in a particular country:
-
Constitutional
provisions on pluralism, multiculturalism and diversity
-
Constitutional
guarantees related to human rights
-
What
provisions establish the relationship of international human
rights treaties and the constitutional text?
2. Evaluating
the effectiveness of standards for ensuring and promoting non-discrimination
and substantive equality. Consider the constitution, legislation
and policies in order to determine:
-
How
discrimination and equality are defined
-
Whether
there are consistent standards to promote non-discrimination
and ensure substantive equality
-
Whether
discrimination against women is prohibited and whether there
are remedies available to victims
-
Whether
other forms of discrimination are prohibited and whether there
are remedies available to victims
3. Approaches
to intersectional discrimination:
-
Are
there laws and policies that address intersectional discrimination?
-
Is
there jurisprudence on intersectional discrimination?
-
Are
there mechanisms in place to bring forward complaints on intersectional
discrimination?
-
Are
there means of protection to victims of intersectional discrimination
implicitly or explicitly provided in the laws?
4. Identifying
critical issues affecting groups of women that experience intersectional
discrimination:
-
What
are the problems and issues that affect women from discriminated
groups? Analysing the context - circumstances in which discrimination
occurs and main areas of concern (e.g. health, education, etc.)
-
What
evidence is there of the existence and extent of the problem?
-
What
are the contributing factors (immediate, historic, structural,
systemic, etc.)?
-
Listing
of discriminatory stereotypes that could be linked to article
5 of the CEDAW Convention in order to determine competing grounds
for discrimination
-
What
are the obstacles/impediments to the realisation of the human
rights of women who are vulnerable to or victims of intersectional
discrimination?
-
In
your view, what steps should States take to promote the advancement
of victims of intersectional discrimination in all areas covered
by the CEDAW Convention? i.e. political participation, education,
health, etc.
-
In
your view, what steps should the State take to eliminate intersectional
discrimination?
5. Evaluating
the effectiveness of steps already taken by the government to
address and eliminate intersectional discrimination:
-
How
effective is government action aimed at the elimination of all
forms of discrimination against women? Are there gaps?
-
How
effective is government action aimed at the elimination of other
forms of discrimination? For example, are men and women victims
of racial discrimination treated equally?
-
How
does the State assess the needs of women belonging to discriminated
groups?
-
Is
there statistical data or evidence of the scale or effectiveness
of government action?
-
Does
the government monitor its own actions?
6. Assessing
the real impact of temporary special measures:
-
Provide
a historical background on temporary special measures aimed
at improving the situation of disadvantaged groups of women
-
Use
Table 1 to gather, analyse and evaluate data on special measures
aimed at improving the situation of marginalised groups of women
-
Formulate
recommendations regarding implementation and monitoring of temporary
special measures that aim at improving the situation of women
facing intersectional discrimination.
Table
1
| Package
of Implementation Measures (legal, administrative, policy-based,
educative etc.) |
Purpose:
To achieve women's
de facto equality
(article 3)
|
Qual'tive
Outcome
for
Women
|
Qual'tive
Outcome for Men |
Qual'tive
Outcomes
for Subgroups Women
|
Qual'tive
Outcomes for Subgroups Men: |
Evaluate
Effectiveness - Redesign package as necessary
|
| Gender-neutral
(same) treatment of women and men |
Are
measures consistent with
guidelines for tackling structural impediments to women's equality?
|
|
|
i)
ii)
iii)
|
i)
ii)
iii)
|
Is
substantive equality achieved?
If not, what additional or different measures are required?
|
| Gender-
differentiated treatment of women and men |
|
|
i)
ii)
iii)
|
i)
ii)
iii) |
| Different
treatment for subgroups of women |
|
|
i)
ii)
iii)
|
i)
ii)
iii)
|
| Combination
of measures |
|
|
i)
ii)
iii) |
i)
ii)
iii) |
Source:
Dianne Otto. (2002). "Gender Comment": Why does the UN
Committee on Economic, Social and Cultural Rights need a General
Comment on Women? In the Canadian Journal of Women and the Law.
pp67-68.
7. Evaluating
the efficiency and effectiveness of state machinery meant to promote
human rights, women's equality and rights of disadvantaged groups:
-
Describe
agencies and mandates in relation to human rights, women's equality
and rights of disadvantaged groups
-
Highlight
programmes addressing discrimination
-
Is
there institutional recognition of intersectional forms of discrimination?
-
Are
remedies available and accessible to victims of intersectional
discrimination?
-
Make
recommendations on mapping adequate responses to address these
problems
8. Monitoring
the implementation of WCAR and the Beijing Platform of Action:
9. Assessing
the successful implementation of the CEDAW Convention:
- Specify ways
in which the State has failed to eliminate intersectional discrimination
- What makes
specific groups of women vulnerable to intersectional discrimination?
- What enabling
conditions need to be established in order for women from discriminated
groups to access rights?
- What should
the State do to rectify the situation and fulfill its obligations?
This
page was last updated on August 30, 2003
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