NON-DISCRIMINATION AND EQUALITY BETWEEN WOMEN AND MEN 1/2

Non-discrimination and equality between women and men are central principles of human rights law. Both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights prohibit discrimination on the basis of sex and guarantee women and men equality in the enjoyment of the rights covered by the Covenants. Article 26 of the International Covenant on Civil and Political Rights also provides for equality before the law and equal protection of the law.
The definition of discrimination in the Convention on the Elimination of All Forms of Discrimination against Women encompasses a variety of possible discriminatory actions (any distinction, exclusion or restriction) having either the express purpose or the actual effect of discriminating against women. The Convention goes further than other human rights treaties in also describing in detail the State obligations and actions to be taken to achieve gender equality in practice. It not only requires equality between women and men, but also prohibits practices that can perpetuate women’s inequality. Substantive gender equality and formal gender equality, as well as de facto discrimination and de jure discrimination, are central concepts in the Convention’s equality framework.

Discrimination and inequality can occur in different ways. Discrimination can occur through de jure or direct discriminatory provisions, such as when a law or policy restricts, prefers or distinguishes between certain groups, for instance, prohibiting women from driving, owning land or inheriting property. Ensuring formal equality requires eliminating all instances of de jure discrimination. While much progress has been made to eliminate discriminatory laws, many persist and reforming them should be a matter of the utmost priority for States to comply with their human rights obligations.

Laws, policies or programmes can also have detrimental effects on women even though they appear to be gender-neutral. This is known as de facto discrimination. For instance, aid programmes which distribute benefits to the “head of household” may not benefit women equally since men are often considered the head of a household. Similarly, given women’s disproportionate representation among those living in poverty, a government lending scheme to buy land may be inaccessible to women due to its cost—even if the scheme is open to both men and women.

Achieving substantive equality requires taking both historical inequalities and the present conditions of women in a certain context into account. Substantive equality may consequently require positive action by the State to address the specific disadvantages and needs of women.16 The Convention on the Elimination of All Forms of Discrimination against Women encompasses substantive equality, recognizing that genderneutral laws can have discriminatory effects and that formal equality is not enough to address them. Its article 4 on temporary special measures, the Committee’s general comment No. 25 (2004) on the same topic, as well as article 5 on modifying the social and cultural patterns of conduct of men and women, emphasize a commitment to substantive equality.

http://www.ohchr.org/Documents/Publications/HR-PUB-14-2.pdf