The Principle of Equality

The principle of equality is central to the CEDAW Convention. The concept of equality however has been problematic because the term equality for women is traditionally understood to mean "the right to be equal to men." The basis for this understanding came from the fact that women faced gross inequalities in relation to employment opportunities, wages, access to and enjoyment of health, rights within the family, citizenship etc. At this level of argument being equal to men is understood to mean having equal rights to that of men.

The problem arose because equality is then extended to the understanding that women must be treated exactly like men if they are to gain equality with men. The implication of this is that women must be treated according to male standards. This obscures the ways in which women are different from men. If rules of procedure, expected behaviour, processes by which a task is carried out, institutional arrangements etc. are the same for women and men, then women will be disadvantaged because of the differences between them. Women will not be able to access opportunities in the same way as men.

The CEDAW Convention promotes the substantive model of equality and consolidates two central approaches to equality. First it stresses the importance of equality of opportunity in terms of women's entitlements on equal terms with men to the resources of a country. This has to be secured by a framework of laws and policies, and supported by institutions and mechanisms for their operation. But the CEDAW Convention goes beyond this in emphasising that the measure of a State's action to secure the human rights of women and men needs to ensure equality of results. The indicators of State progress, in the eyes of the CEDAW Convention, lie not just in what the State does, but in what the State achieves in terms of real change for women. Article 2 of the CEDAW Convention enjoins the State to ensure the practical realisation of rights. Thus the State is obligated to show results, not just stop at frameworks of equality that are strong on paper. Hence the CEDAW Convention stresses that equality must inform the practice of institutions.

The conceptual framework underpinning this is the recognition that formal equality, often manifested in a gender-neutral framing of policy or law, may not be sufficient to ensure that women enjoy the same rights as men. That is to say, framing a policy for "people" implicitly including women and men, while not excluding women per se, may result in a de facto discrimination against women. This is because of the fact that women and men are not the same. Not only is there a significant biological difference between women and men (women bear children, not men), but gender differences (socially-created differences between men and women upheld by ideology and perpetuated by socialisation processes) also result in norms and assumptions made about what women and men's roles in society are, what their capabilities, needs and interests are, which influence both policy-making and its implementation. Differences between women and men whether based on biological (sex) difference or socially created (gender) differences results in women's asymmetrical experience of:

Initiatives for the realisation of women's rights need to compensate for or cater to the difference, disparity or disadvantage. This means taking into account the ways in which women are different from men, and ensuring that these differences are acknowledged and responded to by policy or legal interventions and programmes. However, how this is done, depends on what kind of analysis informs the content of policy and programmes. All approaches that take into account differences between women and men are not immediately favourable to women - in fact they could be discriminatory in effect, if not in intention. To be able to intervene effectively in favour of women's equality, it is important to have a conceptually sound understanding of what or why differences exist between women and men.

There are two ways of responding to gender differences in policy or approach. A protectionist approach, while recognising the differences, seeks to curtail or curb women's activities or freedoms with the rationale that the aim is to "protect" women from harm or wrongdoing. Protectionist approaches are inherently limiting in that they do not challenge gender discrimination, but reproduce it in the garb of protecting women. An example of a protectionist approach is the ban on women's employment in night shifts, which can be found in some countries; while this ban purports to protect women from working in unsafe environments at night, it serves to curtail women's freedom to work, which is a right men enjoy, and are not denied on the basis of their sex. Further, such a protectionist approach reproduces old myths: that women are less safe at night-time, that violence against women only happens at night; it also frees the State from carrying out its obligation to secure environments for women so that they are free to carry out activities of their choice at any time.

The second approach which is a corrective or substantive approach recognises that in order to redistribute benefits equally between women and men, approaches to promoting women's rights must transform the unequal power relations between women and men in the process. For this to happen not only should there be equal opportunities for women but there should be equal access to the opportunities. Hence, policies, laws and programmes must aim to provide the following:

This approach recognises that women and men cannot be treated the same, and for equality of results to occur, women and men may need to be treated differently. In summarising this approach to equality we can say that the obligation of the state is to ensure:

The challenge is to know when to take note of difference, and to decide on appropriate measures for different treatment that will facilitate equal access, control and equal result. Such measures will have to be assessed to ensure they promote autonomy rather than protection or dependency. This has to be done without compromising the claim for equal rights and equality as a legal standard. For example, there can be no compromise on the claim for legal equality in matters pertaining to personal status such as:

 

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