Temporary Special Measures to Accelerate Progress Towards Equality

The CEDAW Committee has described the equality that women are entitled to live in their daily lives in these terms:

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“Equality of results is the logical corollary of de facto or substantive equality. These results may be quantitative and/or qualitative in nature; that is, women enjoying their rights in various fields in fairly equal numbers with men, enjoying the same income levels, equality in decision-making and political influence, and women enjoying freedom from violence.”

(General Recommendation 25, paragraph 9)

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 Clearly – we are a long way from this state of affairs – in the UK and in all other countries. Article 4 of the CEDAW Convention states that:

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“temporary special measures aimed at accelerating de facto equality before men and women shall not be considered discrimination”

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This means that measures such as quotas requiring 50% of seats be allocated to women in parliaments, etc are permitted under human rights law. In its practice, the CEDAW Committee has advised States parties that temporary special measures are not only permitted, they are required to ensure equality: 

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“The Convention requires that women be given an equal start and that they be empowered by an enabling environment to achieve equality of results. It is not enough to guarantee women treatment that is identical to that of men. Rather, biological as well as socially and culturally constructed differences between women and men must be taken into account. Under certain circumstances, non-identical treatment of women and men will be required in order to address such differences.”

(General Recommendation 25, paragraph 8)

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The CEDAW Committee emphasised that States need to make a definite, properly resourced plan to transform gendered inequality in all the ways that it is manifested within that State, using temporary special measures:

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“Pursuit of the goal of substantive equality also calls for an effective strategy aimed at overcoming underrepresentation of women and a redistribution of resources and power between men and women.”

 (General Recommendation 25, paragraph 8)

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Examples of such temporary special measures include – action plans, allocation of resources, public awareness programs: quotas in political representation and public appointments; scrutiny of qualifications to ensure that assessments of merit are objective measures, rather than based on assumptions.

The CEDAW Committee has emphasised that States must persist in implementing temporary special measures, even if they meet with resistance: that there is no excuse for failing to make accelerated progress towards equality:

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“States should provide adequate explanations with regard to any failure to adopt temporary special measures. Such failures may not be justified simply by averring powerlessness, or by explaining inaction through predominant market or political forces, such as those inherent in the private sector, private organizations, or political parties.”

(General Recommendation 25, paragraph 29)

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The CEDAW Committee has a keen awareness of the importance of taking an intersectional approach to equality – and has identified many aspects of identity and situations intersecting with gender as being important: “ethnicity/race, indigenous or minority status, colour, socio-economic status and/or caste, language, religion or belief, political opinion, national origin, marital and/or maternal status, age, urban/rural location, health status, disability, property ownership, being lesbian, bisexual, transgender or intersex, illiteracy, trafficking of women, armed conflict, being a refugee, internal displacement, statelessness, migration, heading households, widowhood, living with HIV/AIDS, deprivation of liberty, being in prostitution, geographical remoteness and stigmatisation of women fighting for their rights, including human rights defenders. The vision in the CEDAW Convention is of substantive equality across all human rights, beyond equality and practice towards transformative, participatory equality”.

So what does the CEDAW Committee’s guidance on temporary special measures mean for women’s civil society in the UK?

First and foremost, the fact that affirmative action is not just legal under international human rights law, it is actively required, can strengthen our advocacy to government, to the general public, companies and institutions: our messages about the rightness of taking active and vigorous steps towards transformative, participatory equality are reinforced.

Secondly, we can hold the UK government to account for implementing the CEDAW Committee’s recommendations which were made in the 2019 reporting process. The CEDAW Committee made specific recommendations to the UK government to “adopt specific measures, including temporary special measures, to facilitate access for women belonging to marginalized groups, such as ‘Black, Asian and Minority Ethnic’ women and women with disabilities to the labour market in order to increase employment rates among those groups of women and reduce the concentration of such women in low-paying jobs” and also “to take specific targeted measures, including temporary special measures, to improve the representation of women, including ‘Black, Asian and Minority Ethnic’ women and women with disabilities, in Parliament, the judiciary and decision-making positions in the foreign service and its diplomatic missions and  to address the low representation of women in political and public life in Northern Ireland, including by ensuring the implementation of section 43 A of the Sex Discrimination (Northern Ireland) Order 1976 enabling the use of gender quotas.”

Finally, the CEDAW Committee has recommended to all States to collaborate and consult with civil society and women’s non-governmental organizations in order to make the most effective plans. So we can dream for bigger strategies and advocate for practical change – knowing that taking on our strategies for change is what the government is required to do under international human rights law.

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Author

Lisa Gormley is a Policy Fellow in the Centre for Women, Peace and Security. She is an international lawyer specialising in equality for women and girls, and the obligation of States to eradicate violence against women and girls. Lisa qualified as a solicitor in 1999 and was a legal adviser in Amnesty International's International Secretariat (2000-2014). During this time at Amnesty, she took part in the negotiation the Council of Europe Convention on preventing and combating violence against women and domestic violence, known as the Istanbul Convention. Currently, Lisa is spending most of her time developing the Centre's Tackling Violence against Women website, mainly by adding further detailed analysis of the international and regional human rights caselaw relating to violence against women, with support from the Joseph Rowntree Charitable Trust.