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Beyond Equality: A Manual for Human Rights Defenders SESSION 4
Objectives:
- To examine the meaning of the terms “equity” and “equality” and what
they signify in international law.
- To consider what the distinctions might be between equity and equality
for women’s access to education, jobs and remuneration, property and
inheritance, political participation, and other benefits of citizenship and
social participation.
- To discuss what the potential ramifications for women are when equi-
table rights rather than equal rights are pursued.
in this session:
The terms gender equity and gender equality are sometimes used inter- changeably, but in law they represent two separate paths to advancing women. The clearest distinction between the two is that equity is based on subjective criteria, determined by culture, religion, and traditions, while equality is based on objective criteria. What is equity or equitable depends on what someone or some people believe is fair and correct. While ensuring equality or what is equal is a matter of ensuring that conditions, privileges, or rights are the same. Of course, in reality, even “the same” is open to some interpreta- tion, and in many societies where people are ostensibly treated the same, there is disagreement about whether they truly are.
In the reading selections that follow, experts describe the distinctions they make between when laws and rights are applied equitably versus equally. The short excerpt from the Preamble to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) illuminates the convention drafters’ rationale for aspiring to gender equality rather than gender equity. In some societies, equity takes the form of separating the genders – in school, at work, on public transportation, and in houses of worship, among many exam- ples. Can men and women be treated equally if they are separated? In the United States, that question was put before the Supreme Court regarding race
- whether the races could be treated equally if they were separated. In the famous 1954 Brown vs. The Board of Education decision, Chief Justice Earl Warren argued that the very act of creating different spaces for black and white children to be educated unavoidably signified that the society held one race
Session
Equity versus Equality
SESSION 4 Beyond Equality: A Manual for Human Rights Defenders
to be inferior to the other. Therefore, Warren stated, the separate systems of education were not equal for black and white children. In this session, we will discuss whether Warren’s logic also applies to gender, and whether separating the sexes is also rooted in upholding a social order where women are inferior to men.
Reading Assignments:
Equality or Equity for Women?
Alda Facio and Martha I. Morgan What is needed to end global discrimination against women? Gender equity or gender equality? These terms, or their respective translations, are at times used interchangeably. However, in the context of women’s rights under international human rights law, clarifying the distinction between the terms equity and equality is a point of increasing concern. “Equality” is the terminology of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The Convention’s concept of equality sets broad and objective standards for Member States. The CEDAW Committee, which monitors compli- ance with the treaty, has responded to the continuing confusion between these two terms by repeatedly reminding the countries submitting their periodic reports under the Convention of the importance of adhering to CEDAW’s “equality” approach rather than substituting the vague and subjective term “equity.”^18
What is the Difference between Gender Equity,
Gender Equality and Women’s Empowerment?
Gender equity is the process of being fair to women and men. To ensure fairness, strategies and measures must often be available to compensate for women’s historical and social disadvantages that prevent women and men from otherwise operating on a level playing field. Equity leads to equality. Gender equality requires equal enjoyment by women and men of socially-valued goods, opportunities, resources and rewards. Where gender inequality exists, it is generally women who are excluded or disadvantaged in relation to decision-making and access to economic and social resources. Therefore a critical aspect of promoting gender equality is the empowerment of women, with a focus on identifying and redressing power imbalances and giving women more autonomy to manage their own lives. Gender equality does not mean that men and women become the same; only that access to opportunities and life changes is neither dependent on, nor constrained by, their sex. Achieving gender equality requires women’s empowerment to ensure that decision- making at private and public levels, and access to resources are no longer
18 Alda Facio and Martha I. Morgan, “Equality or Equity for Women: Understanding CEDAW’s Equality Prin- ciples,” IWRAW Asia Pacific Occasional Papers Series, No. 14, 2009 (www.iwraw-ap.org). Facio is a jurist, writer, and international expert on women’s human rights, gender violence, and gender analysis. Morgan is Robert S. Vance Professor Emerita of Law at the University of Alabama School of Law.
SESSION 4 Beyond Equality: A Manual for Human Rights Defenders
- In most families, parents decide what chores each of their children is responsible for. Is society like a family in that some people are like “parents” and should decide what is fair, and others are like children and should accept what the parents decide? If so, then who are the parents and who are the children? If not, then what are the differences between society and a family? Are there some similarities and some differences?
- If the CEDAW framers had written that governments should embody the principle of equity between men and women in their appropriate legis- lation, instead of the principle of equality, what types of discrimination might result? What are examples of treatment that some people find equitable, but you feel is discriminatory?
- What are some examples of discrimination against women that some people feel are justified? For example, some people believe that it is equitable for a school or sports programs to sponsor teams only for men, and not for women, in some sports – such as track or football. Are there any examples with which you agree? Why?
Reading Assignment:
Brown vs. The Board of Education
On May 17, 1954, the U.S. Supreme Court unanimously ruled in Brown vs. The Board of Education that ‘separate but equal’ public schools for blacks and whites was unconstitutional. The claim that schooling could be equitable, separate, and by extension different but still equal, was found to be impossible in practice and in law. The court ruled that sepa- ration of services creates an inherent inequality that was discriminatory and harmful to society. Chief Justice Earl Warren 21 wrote the decision for the court. The following are excerpts from his written opinion: “Today, education is perhaps the most important function of State and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society... It is the very foun- dation of good citizenship. Today it is a principal instrument in awak- ening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the State has undertaken to provide it, is a right which must be made available to all on equal terms... We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does...
21 Earl Warren (1891-1974) was the 14th Chief Justice of the United States Supreme Court (1953-69), who presided over some of the country’s most important civil rights cases.
Beyond Equality: A Manual for Human Rights Defenders SESSION 4
Segregation of white and colored children in public schools has a detri- mental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system... We conclude that, in the field of public education, the doctrine of ‘sepa- rate but equal’ has no place. Separate educational facilities are inherently unequal... “^22
Questions for Group Discussion:
- In the United States in the 1950s, why did separate educations amount to inferior educations? How did the division between blacks and whites in schools, on buses, in restaurants, and in other ways create a legal means of discriminating against black people?
- Chief Justice Warren wrote, “…the policy of separating the races is usually interpreted as denoting the inferiority of the negro group.” Does separation of the sexes ever denote the inferiority of females to males? If so, what are those circumstances?
- Do you believe that there are parallels in society between the inferior treatment of blacks in schools in 1950s’ America, and the treatment of women today? Why or why not?
- Can women have separate but equal educations and jobs? Can women have separate but equal gender roles? Why or why not?
22 http://www.nationalcenter.org/brown.html
Beyond Equality: A Manual for Human Rights Defenders SESSION 4
and policies are drafted and implemented to benefit men and women equally. In the long run, gender mainstreaming “aims to transform discriminatory social institutions, laws, cultural norms and community practices, such as those limiting women’s access to property rights or restricting their access to public space.”^23 An example of gender main- streaming is the UN Security Council’s passage of Resolution 1325 (discussed in Session 13) that aims to increase women’s participation in policy-making during times of war, peace negotiations, and rebuilding communities in post-conflict situations. Enforcement of Equality: The third strategy is enforcing declarations, legislation, and expectations of equality between women and men. Enforcement of equality measures include laws stating that their provi- sions apply equally to women and men; services (social, economic, health, etc.) that are provided equally to women and men; community practices such as awarding scholarships and promoting individuals in the work- place being applied equally to women and men; and laws and procedures that enforce non-discrimination. It is the last of these three strategies that is frequently considered too radical, or too upsetting to cultures or traditions, to be practical in many societies. Yet equality is the fundamental right that provides the basis for all human rights. Human rights are born out of the elemental belief that all human lives have the same value. In order to manifest this belief, people must be treated equally, with the same rights and protections, regardless of gender or other distinctions.
Group exercise:
Consider the three strategies for advancing women’s rights described in the reading selection above:
- Affirmative Action – helping women to ‘catch up’
- Gender Mainstreaming – ensuring women’s participation
- Enforcement of Equality – enforcing laws and practices be equally applied to women and men
Brainstorm examples of each strategy. Ask the group to list the pros and cons of each. Consider which strategy works best for different women’s rights objec- tives. Consider why one strategy might work where another fails.
23 http://www.unwomen.org/en/how-we-work/un-system-coordination/gender-mainstreaming#sthash. XDVdQuOM.dpuf
