(2(a)) HR and Gender Flashcards
3 forms of HR obligations
1) to respect (refrain from interference etc) - negative obligation
2) to protect (prevent violations by 3rd parties), eliminate incentives for violations, provide legal remedies
3) to fulfil - legislative and other measures etc
formal equality =
treating likes alike
substantive equality =
treating dif situated ppl differently according w difference –> result focused or opportunity focused
example of substantive equality focus of CEDAW
Art 4(1) - provision for temporary different treatment and preferential treatment to accelerate de facto equality btw men and women
What are the limitations of the unidimensional approach to international HR Law (ie universal rights for all and enjoyment by all)
- ppl have and prioritise dif needs/interests –> dif interests can lead to individual exercise of rights by ppl (ie right to marry vs freedom of religion/movement prioritised differently)
- dif of interests can impact protection against interferences
LIMITATION: whilst dif of interests/needs won’t affect scope of absolute rights, they can affect Rs subject to limitations (cf SAS v France)
States must ensure the enjoyment of human rights by all citizens, meaning they must take into account and balance dif interests –> where is this challenging?
in situations of morally sensitive issues (women’s equality, same-sex marriage, gender identities etc.)
SAS v France: key question
- whether act banning full face coverings breached ECHR re pri ate life + freedom to express religion and beliefs
SAS v France: held
ECtHR unanimously held law didn’t violate ECHR
- recognised was aimed towards muslim women minority but held that margin of appreciation was such that it was not disproportionate to French principle of living togethers’ which was a min requirement of life in society and had that legitimate aim as an element of protecting the Rs and freedoms of others
SAS v France shows what about the ECtHR and the margin of appreciation
the ECtHR adopts v wide margin of appreciation re Qs where views in democratic countries can legitimately differ –> reflects that ECtHR founded on state sovereignty and thus has subsidiary role wrt decisions of national authorities
Yaker v France (UNHRCommittee): key question
whether the french full face covering ban violated ICCPR
Yaker v France (UNHRCommittee): held
Was a violation of Art 18 ICCPR: Was not necessary or proportionate to legitimate interest thus unreasonable
- Re religion: France failed to identify any specific R of other individuals that was infringed by wearing full face veil –> there’s no fundamental R to see faces of and interact w others in a public space
- Failed to demonstrate that ban was proportionate to the aim of the act
- Was an indirect discrimination claim, concluded to indirectly discriminate against minority Muslim women
Whilst it was held both in SAS v France and Yaker v France that the ban interfered with religion and was prescribed by law, where did the decisions differ?
Legitimate aim: SAS v France (gender = and public order - No; aim of ‘living together’ –> YES) Yaker v France - aim of living together –> NO (failed to id fundamental Rs/freedoms of others impacted by wearing covering)
Necessary in a democratic society?: SAS v France (YES per wide margin of appreciation test adopted) YAker v France (NO)
Wedding Cake case made a distinction between what
the R not to be discriminated against vs freedom of religion
Wedding cake (2014) (UK) facts:
- 2014 queer org ordered cake ‘support gay marriage’, bakery refused
- brought claim against bakers in UK courts - Bakers invoked R under Art 9 (freedom of thought and religion) and art 10 (Freedom of expression) under ECHR
Wedding cake (2014) (UK) what did lower court and UK CA in UK hold?
found direct discrimination, whereby whilst art 9 was engaged they couldn’t manifest their religious beliefs in the commercial sphere if contrary to Rs of others + also held Art 10 not engaged bc not required to support/endorse Lee’s view
Wedding cake (2014) (UK) - what did UKSC hold?
found that LEe’s sexual orientation as gay man WAS dissociable from the message on the cake
- Concluded no less favourable treatment on grounds of religious belief bc bakery owners hadn’t refused to serve applicant bc gay but bc they objected to being required to promote message they disagreed with profoundly
Wedding cake (2014) (UKSC): held that the objections by the bakers were to
THE MESSAGE ON THE CAKE NOT TO LEE HIMSELF HENCE NO DISCRIMINATION
Wedding cake (2014) (ECtHR): why was LEe’s application against UKSC for interference w his rights by a public authority (aka the UKSC) inadmissible?
- For complaint to be admissible Convention arguments must be explicitly raised/in substance before domestic authorities – but applicant failed to invoke Convention rights at any point in domestic proceedings, failing to give domestic courts opportunity to address any Convention issues raised – thus inadmissible
Lovelace v Canada (1977) (UN HRC): facts
- Challenge of law that stripped Indian woman of Indian status after marriage to non-Indian man, such that she couldn’t reside on the Reserve of her community , even after her divorce from that man (whereas the law didn’t apply like this to men)
What was the key question in Lovelace v Canada (1977) (UN HRC):
Whether there was a violation of Art 27 of ICCPR (re denial of Rs of minorities to exist in a community w members of their own group) by the law which had been enacted by Canadian gov but that Indigenous communities had supported
Lovelace v Canada (1977) (UN HRC): held
was a violation of Art 27, but due to cultural reasons and not on basis of gender
What was missing from Lovelace v Canada (1977) (UN HRC) decision?
there was a lack of intersectional analysis (noting tho that at time concept of intersectionality hadn’t really emerged), instead overwhelming focus on cultural rights and not a gender inequality issue
What is a key problem with non-discrimination law?
(1) it often adopts single ground approaches, ie on the basis of race, sex religion and not a multi-ground approach (IGNORES INTERSECTIONALITY)
(2) to frame a discrimination claim, comparison must be made
What is problematic about the use of comparisons to frame discrimination claims?
1) can suggest ppl have just 1 important identity trait (eg man vs woman / gay vs straight - see Carvalho Pinto case)
2) results in notion that identity groups are internally homogenous (not true!)
3) results in essentialism, eg, that all women experience same issues and have same interests
What is the ultimate result of using comparisons in discrimination claims?
ESSENTIALISM
often power relationships and their influence on one’s position are ignored (ie, Angela Merkel a women thus vulnerable, suggests she’s more vulnerable than any man regardless of sexual orientation, skin colour, disabilities etc)
What is essentialism
Essentialism aims to sort groups of people into permanent categories under the belief nature has assigned them unchangeable characteristics.
What is a solution to the essentialism problem impacting discrimination claims?
moving away from intersectionality as identity to structural intersectionality
Structural intersectionality focuses on
how power creates groups and impacts power relationsw btw groups rather than on how ppl are (essentialism) and assuming they’re the same (homogenous approach to discrimination - identity based)
Rather than putting ppl into fixed categories and assuming the same (ie men always powerful, women weak), structural intersectionality focuses on what
relationships - a combo of features may make them vulnerable but this is not always the case depending on relationship w others + context
Structural intersectionality reveals that a failure to pay attention to power and power relations renders
the most marginalised people WITHIN a group invisible
3 types of power relationships
(1) vertical
(2) diagonal
(3) layered
Example of vertical power relationship
Patriarchy and racial hierarchy: white man vs black woman
example of diagonal power relationship
Patriarchy: black man vs black woman
racial hierarchy: white women vs black women
example of layered relationship
white man vs black woman (patriarchy and racial hierarchy power relations)
based on layered power relationship, black women face what:
synergistic disadvantage
What is Fredman’s 4 dimensional approach to achieving substantive equality?
(1) redistributive (look for and address disadvantages)
(2) recognition (identify and acknowledge stigma, sterotyping, prejudice)
(3) participation (ensure that focus group is involved: ‘nothing about us without us’
(4) transformation (accommodate difference: change the structure so that combating discrimination is not just assimilation - formal equality).
What’s a key issue with stereotypes?
how to discuss them but not reinforce them!
What does CEDAW say about steretypes in setting a legal standard?
Art 5 CEDAW: State parties msut take all appropriate measures to modify social and cultural patterns of conduct of men and women to eliminate prejudices based on idea of inferiority of either sex or stereotyped roles
What case is an eg of uncovering stereotyping?
Caravalho Pinto case
How does CEDAW determine whether an application is admissible or not?
According to the optional protocol
Facts in Munoz application to CEDAW Committee (2005)
Munoz claimed violation of CEDAW on basis of inheritance laws to title of notability as first born child whereas her brother was in line to title after father’s death not her
Munoz application to CEDAW Committee (2005): outcome
- held inadmissible due to the fact the events occurred before CEDAW in force
- Individual opimion of members was that that the application was inadmissible on the basis that it is incompatible with the provisions of the Convention
- Here the title of notoriety statute wasn’t enacted on the basis of any distinction, exclusion or restriction on basis of sex, but instead was a purely symbolic nature devoid of any legal or material affect –> claim of succession to such titles aren’t compatible w CEDAW as its aimed at protecting women from discrimination
M v France (2022) ECtHR - facts
intersex applicant who underwent feminising surgery’ and treatment –> claimed led to severe psychological and psychiatric problems and considered a disabled individual
- claimed parents given inaccurate info when born lodged criminal claim for assaault + civil claim
- argued France’s refusal to invesetigate was a breach of ARt 6 of ECHR of her R to access a court
M v France (2022) ECtHR - did the claim fall within Art 3 ECHR (No one shall be subjected to torture or to inhuman or degrading treatment or punishment)?
ECtHR held that to fall within Art 3, ill-treatment had to attain a minimum level of severity –> held that medical procedure carried out absent therapeutic necessity and informed consent fell within Art 3
M v France (2022) ECtHR - outcome:
inadmissible on the basis of a failure to exhaust domestic remedies first
Y v France (2023) ECtHR - facts:
Y, biologically intersex complained about domestic courts’ refusal to grant request to have word ‘netural’ or intersex entered on birth certificate instead of male
complained of failure to achieve +ve obligation to have respect for applicant’s private life (Art 8 ECHR)
Y v France (2023) ECtHR on what basis did Y’s application fail?
On application of the margin of appreciation test –> this was a matter for determination by State as a democratic country and due to there being no European consensus it was appropriate to elave to the State such that it couldn’t be regarded to have failed in its +ve obligation to have respect for the applicant’s private life per Art 8 ECHR
In Y v France (2023) ECtHR what did the court recognise in respect to consequences of France refusing to rectify Y’s civil status?
- Acknowledged that a discrepancy btw biological and legal identity was liable to cause suffering
What did Y v France (2023) ECtHR also recognise in respect of State’s refusal to rectify identity?
would have far reaching consequences - laws constructed on basis of 2 genders (lots of amendments)
note, tho Y not requesting third gender category just rectification of civil status
Facts in Carvalho Pinto
applicant had disease and brought action for clinical negligence
Portuguese SC reduced amount of damages she was entitled to receive
Caravalo claimed judgement discriminated against her on grounds of sex and age – complained about courts reasoning for reducing the damages and disregarded the importance of a sex life for her as a woman
Was there a breach of art 8 and 14 of ECHR in Carvalho Pinto ?
YEs for both - clear case of stereotyping
A consideration of the assumption that sexuality not as important for a 50 year old woman and mother of 2 kids vs someone of a younger age, reflecting idea that female sexuality is linked solely to child bearing purposes and ignored its physical and psychological relevance for female self-fulfilment
