English - CEDAW Southeast Asia

CEDAW and the Law:
One common manifestation of a formal equality approach is the ‘gender-neutral provision’.
These are provisions that do not distinguish between men and women and appear to be neutral
at their face. However, they may be discriminatory in effect, if they fail to recognize differences
between men and women; for example, a law that provides equal rights to access credit
within a socio-cultural context where men are viewed as property holders and women are
only seen as dependents of men (and are constantly being denied by culture or tradition their
property and inheritance rights) will result in women having more difficulty in accessing credit
than men. Hence, similar treatment cannot be said to provide gender equality.
Protectionist approach
Another approach to equality is protectionist in nature. 112 This approach sees men and women
as different classes of people. However, it assumes that women are weaker; and, therefore,
require protection. By protecting women, their rights are restricted and their choices are
ignored; for example, a ban on women working at night, or a prohibition on women working in
dangerous occupations, to keep them safe. In both of these cases, women are thus seen as
the problem rather than the unsafe environment, which remains unaddressed. In relation to
night work, women are blamed for their purported inability to protect themselves rather than
the failure of public order and security measures. In relation to dangerous work, women are
blamed for their alleged limitation in courage or strength rather than the lack of appropriate
occupational health and safety measures. On the other hand, men are seen as not requiring
any protection from danger or dangerous occupations. In most of these cases, the environment
is dangerous for both men and women. However, a protectionist approach penalizes
women for their perceived weakness. Instead of addressing the dangerous environment and
facilitating the movement towards equality, the protectionist approach reinforces the inferiority
of women.
Substantive equality
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CEDAW mandates an approach to equality that benefits men and women equally. The
approach is one that recognizes the differences, whether biological or socio-cultural, between
men and women, and it addresses them appropriately. CEDAW espouses a ‘substantive
approach to equality’ or substantive equality. 113 This is its first core pillar. This approach focuses
on both de jure and de facto equality. In other words, the substantive equality approach
looks not simply at written guarantees of equality, but, more importantly, seeks to ensure
equality of results. This means looking at whether women are able to experience equality in
fact. The approach looks into impact of interventions, and not just whether equality provisions
are in place; for example, simply providing equal opportunities for women and men to access
credit if property is required for collateral is not enough. In a society where women cannot in
reality control, manage or inherit property, the equal credit provisions cannot be enjoyed by
women. What CEDAW requires is that the State Party guarantees that the effect or impact of
their interventions result in equality. 114 By failing to put in place interventions where women can
in fact access credit, there can be no equality. Further measures are needed to correct the
112
Ibid.
113
GR 25, Paragraphs 8 and 9
114
Ibid., Paragraph 9
CEDAW: basic information