Rethinking Sex Equality as a Human Right
| Author | Titia Loenen |
| Published date | 01 September 1994 |
| Date | 01 September 1994 |
| DOI | http://doi.org/10.1177/016934419401200302 |
| Subject Matter | Part A: Article |
Part
A: Articles
Rethinking Sex Equality as a Human Right-
Titia
Loenen"
Abstract
This article critically examines the way the principle
of
sex equality is interpreted by
several international, (quasi) judicial bodies. It argues that the current, mainly formal
approach to equality
and
discrimination is in need
of
a fundamental reinterpretation
towards a more substantive one, asformal equality often leads to the exclusion
of
those,
like women, who do not
fit
the dominant models or standards. Though the role
of
the
courts in striving
for
substantive legal equality is necessarily limited given the division
of
powers between the courts and the legislature in the democratic state, courts can
contribute more than they currently do. In this respect it is held that the concept
of
indirect discrimination as developed in the case law
of
the ECJ provides openings
for
a
more substantive approach to equality and discrimination
and
should be adopted by
human rights courts as well. Further, the article argues
for
a new, asymmetrical model
of
equality analysis, based on the acknowledgement that the prohibition
of
discrimination
is primarily directed at protecting historically 'sensitive' groups (like women), that is
groups which have experienced or are still experiencing systemic forms
of
discrimination
and disadvantage and not just isolated instances
of
disadvantageous treatment.
Introduction
Equality is one of the most fundamental concepts in international and municipal law
systems and operates on several levels. As a moral norm it refers to the notion of the
inherent equal worth of all human beings. This is exactly what lies at the roots of the
Universal Declaration of Human Rights. As such, human rights may be thought as
deriving from this fundamental notion.' As a specific legal, human rights norm equality
is usually formulated as a demand for equal treatment of all before the law, without
discrimination on the basis of, for instance, race, sex, birth or any other ground. In both
respects equality is often considered to be closely related to justice. 2Due to this central
position, the way equality is conceptualized is crucial to the functioning of any legal
system.
This is an extended version of a paper presented at the joint conference of the American Association of
International Law and the Nederlandse Vereniging voor Internationaal Recht, July 1993. (panel: Sources
of international law: entrenching the gender bias).
Dr. Titia Loenen, Department of Women and Law, University of Leiden; Department of Women's Legal
Studies, Utrecht University.
Cf
R. Dworkin, Taking rights seriously, London 1977, pp. 273-274. See also R. Dworkin, 'Rights as
trumps', in: J. Waldron, Theories
of
rights, Oxford 1984, pp. 153-173.
See e.g.
M.H.
Freedman, 'Equality in the administration
of
criminal justice', in: J.R. Pennock &J.W.
Chapman (eds.), NOMOS IX, Equality, New York 1967, pp. 250-260; T. Koopmans, 'Conceptual analysis
and evaluation', in: T. Koopmans (ed), Constitutional protection
of
equality, Leiden 1975, pp. 215-255;
. E.W. Vierdag, The concept
of
discrimination in intemauonal law, The Hague 1973, p. 59.
253
NQHR
3/1994
In this article I will contend that the way the principles of sex equality and non-
discrimination on the basis of sex are interpreted and applied by three of the main
international (quasi) judicial bodies dealing with this basic human right is gendered, and
is
in
need of change along the lines suggested in feminist legal literature. By 'gendered'
I mean that the dominant interpretation of equality hides in several ways a 'male' bias,
by reflecting in a certain sense masculine norms and values under the guise of objectivity
and neutrality. Thus
it
may help reproduce and enforce current gender positions and
gender relations." Apart from the EC Court of Justice (ECl) and the European Court of
Human Rights (ECIIR) I will discuss the approach taken by the Human Rights Committee
(lIRC). It is not my objective here to give a detailed account of their case law, but to
subject their method
of
review regarding equality and non-discrimination to closer
scrutiny. Their inclination towards a strictly formal approach to equality in which the
'male norm' is often the implicit standard of comparison, threatens to disqualify the
inferior position of women in society as a problem of legal equality. The specific needs
and interests connected to a female life pattern (which may be characterized by taking
care of others) can hardly be acknowledged in a mode of thinking which only demands
likes to be treated alike, and remains silent on the question what treatment is due to
people who do not find themselves in positions similar to the group who has on the whole
been the standard of reference of the law, i. e. mostly men." In a formal approach to
equality, 'difference' results for women in exclusion, not in inclusion. In this respect it
is interesting to note that the
ECl
has grown increasingly sensitive to gender based
inequalities and has developed a somewhat more substantive approach to equality. How
far will this meet the abundant feminist critique of dominant equality thinking? Even
if
it is, in my view, not enough to transcend the dilemmas current equality analysis poses,
it makes it possible to have the socially and economically disadvantaged position of
women defmed as a problem of legal equality. In this specific respect the EC Court's
approach may provide a model for other judicial bodies.
To conclude I will sketch a way out of the other problems involved in current
equality thinking, which the
ECl's
approach does not solve.
Of course this is not
to
say that tbis is due to some conscious, misogynistic effort by men nor that men
by definition will profit from it and women will not. Saying that law or a specific legal concept is gendered
does not mean that the law or the concept always serves the interests of men as opposed to those of
women. That would be a ridiculously simplistic position to take. What is atstake, however, is that many
legal concepts are implicitly geared much more to norms and values wbich correspond (in our society at
least) with male models of working and living thanwith female life patterns and thus tend to exclude the
latter because they do not fit the dominant standard.
Again (if. note 3) I would like to emphasize that when I talk about 'female' and 'male' life patterns or
models I do not refer to anything wbich I consider as intrinsic to either women or men: given the actual
differences in lifestyles etcetera between women and men as a group it is possible and useful to speak
about 'the position of
men'
and 'the position of women' (or a subcategory of any of these two groups) and
about 'male' and 'female', without denying the immense variety which may exist on an individual level.
Not all women take care of cbildren and are affectionate, sensitive, dependent on men etcetera nor are all
men breadwinners, keen on their independence and autonomy and not inclined to take care of cbildren.
To avoid this problem the notion of 'gender' is often used.
It
refers to a social category instead of
biological sex.
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