English - CEDAW Southeast Asia

CEDAW and the Law:
hand, the definition in Article 1 of CEDAW requires the recognition, enjoyment and exercise of
women’s human rights and fundamental freedoms, which shows that ensuring gender equality
is more comprehensive than ‘roles and position’.
Further, the definition of ‘gender discrimination’ in the Law on Gender Equality does not
mention that discrimination can be direct or indirect. The definition in CEDAW clearly states
that discrimination can occur if the ‘effect or purpose’ is discriminatory. The CEDAW
Committee in Note 1 of GR 25 even provides a clear definition of ‘indirect discrimination’ to
guide implementation.
Recommendation: To be consistent with the definition of discrimination in Article
1 of CEDAW, it is recommended that the definition of ‘gender discrimination’ in Article
5(5) of the Law on Gender Equality include the term ‘rights’, so that discrimination is
not simply failure to appreciate roles and status but also covers violation of rights. The
definition must also clearly state that discrimination can be direct or indirect. A definition
of indirect discrimination consistent with Note 1 of GR 25 is also recommended to
be included, preferably in the law itself, to aid implementation.
As mentioned earlier, there are guarantees of equality and non-discrimination in many
laws. However, these laws, except for the Law on Gender Equality, do not contain any definition
of ‘gender equality’ or ‘gender discrimination’, nor do they provide explicitly stated principles
relating to the approach or model of equality used and whether the guarantee extends to
indirect discrimination. With the coming into force of the Law on Gender Equality, there is a
need to incorporate its definitions in the application, implementation and interpretation of the
equality and non-discrimination provisions in the other laws.
Recommendation: Provisions guaranteeing equality in legal documents must
incorporate the revised definitions of ‘gender equality’ and ‘gender discrimination’ as
suggested, either by including similar definitions to, or by providing a direct reference
to the definitions in, the Law on Gender Equality.
Definition of ‘sex’ and ‘gender’
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It is noticeable that in some legal documents, the term ‘sex’ is used and in others the
term ‘gender’ is used. There may be a need to provide guidance to implementers on when it
is appropriate to use one over the other. Article 5 of the Law on Gender Equality provides a
definition for these terms:
Article 5: Interpretation of Terms:
(1) Gender indicates the characteristics, positions and roles of man and woman in all
social relationships.
(2) Sex indicates biological characteristics of man and women.
In relation to the definition of ‘sex’, although the definition is on the right track, to sharpen
it, it is recommended to emphasize the contrast between man and woman. Hence, the definition
should be revised.
Recommendation: In relation to Article 5(2) of the Law on Gender Equality, it is
suggested that the definition of ‘sex’ be further sharpened as follows: ‘Sex refers to biological
characteristics of being a man or a woman.’
Review of key legal documents and compliance with CEDAW