Developing a Gender Equality Law (GEL)

Presentation by: Imrana Jalal, Senior Social Development Specialist (Gender), RSGS and Patricia Rhee, Counsel. OGC, ADB 3 May 2012
The views expressed in this paper are the views of the authors and do not necessarily reflect the views or policies of the Asian Development Bank ADB), or its Board of Governors, or the governments they represent. ADB does not guarantee the accuracy of the data included in this paper and accepts no responsibility for any consequence of their use. The countries listed in this paper do not imply any view on ADB's part as to sovereignty or independent status or necessarily conform to ADB's terminology.

Objectives of this afternoons session

Purpose of GEL & overview of legislation of other developing countries (Imrana Jalal) What should a good GEL contain? (Imrana) Implementation and institutions needed to operationalize the GEL? (Patricia Rhee) Review of Legislative Processes (Local Majlis representative)

Advocating the GEL strategies needed to get the GEL passed and public awareness campaign instituted (group work/plenary discussions) (Imrana )

Legislative Options

See handout table of Asian & Pacific countries with GE legislation Law and Gender: Temporary Special Measures

Stand alone legislation vs. Constitutional provisions

Piecemeal vs Comprehensive approach (eg. Nepal is minimalist piecemeal approach cf to Viet Nam, Mongolia and some Central Asian countries with comprehensive approach) A GEL law can be comprehensive and all encompassing can remove all forms of gender discrimination (negative obligation) and promote gender equality (positive obligation)

Nepal only removed existing formal codified gender discriminatory legislation, others went further and actively promote gender equality via legislation Can proactively promote substantive equality for women using 2 pronged approach e.g. Mongolia

Provision for Temporary Special Measures (TSM) in National Constitutions

Constitution of Bangladesh
Article 28 prohibits sex discrimination and inequality. Article 28 (1) specifically provides for TSM by stating that State is allowed to make special provision for women.

Constitution of Pakistan
Article 25 . There shall be no discrimination on the basis of sex. Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. Constitution of the Kyrgz Republic Section 2. Special measures defined by law and aimed at ensuring equal opportunities for various social groups in accordance with international commitments shall not be considered as discrimination.

Provisions for Temporary Special Measures (TSM) in Stand-alone Domestic Legislation

Law of the Republic of Azerbaijan on State Guarantees of Equal Rights for Women and Men

3.2. The following is not considered as gender-based discrimination (includes) 3.2.5. special temporary measures foreseen in the law, aimed at ensuring the equal social status of men and women.
Viet Nam The Law on Gender Equality

Article 5 (6). (The) measure to promote gender equality is the measure aimed at ensuring substantial gender equality, set forth by the state authorities in cases (where) there remains considerable (disparity) between man and woman concerning the positions, roles, conditions, and opportunities for man and woman to bring into play all their capacities and to enjoy the achievement of the development where the application of equal regulations for man and woman cannot remove this (disparity). The measure to promote gender equality is to be implemented for a certain period of time and shall end when the gender equality goals have been achieved

Mongolia The Law on Gender Equality 2011

Article 7. Special measures to ensure equality of men and women

7.1. The state policy referred to in Article 5.2 of this law may involve special measures aimed at protecting maternity or establishing equality of men and women in social or family relations. These special measures shall not be considered as gender discrimination. 7.2. Special measures referred to (in) Article 7.1 of this law shall be implemented for the purposes of:
7.2.1. approving and implementing laws, policies, programs and projects aimed at protecting maternity rights and interests; or
7.2.2. determining the number of seats or implementing other such quotas aimed at equalizing the representation of men or women at political and decision-making levels; or 7.2.3. special measures to eliminate gender imbalances in certain sectors or setting up discounts, incentives or benefits to improve imbalanced gender representation in a trade or occupation. 7.2.4. establishing different admission conditions and requirements for specific(-)sex applicants to educational institution pursuant to the provision 6.4.6. of this law.

7.3. With the exception of special measures referred to in Article 7.2.1, special measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

Muslim countries in Asian region with Stand-alone GEL

Azerbaijan State Guarantees of Equal Rights for Women and Men 2006 Kazakhstan Law on the Basics of State Law on the Basics of State Guarantees of Gender Equality 2008 broadens the scope of TSM. Tajikistan - The Law of the Republic of Tajikistan on State guarantees of equal rights for men and women and equal opportunities in the exercise of such rights allows for a range of TSM. Turkmenistan - Law of 14 December 2007 on State guarantees of equal opportunities for women

What should a good GEL contain?

Define and prohibit all forms of gender discrimination Remove all existing forms of gender discrimination (can be piece by piece or comprehensive) & pro-actively promote GE as well Remove all existing legislative and common law (interpretation of laws) gender discrimination and provide legal framework for TSM

Scope of GEL -who it applies to e.g. government and private sector, family , which courts (eg family courts too?) etc (horizontal and vertical application)
State that principles of CEDAW, CRC and other public international human rights law applies domestically Basic principles of gender equality Allow for TSM in all fields by policy, bylaws or regulation & state that it does not constitute discrimination against other groups.

Contd

Provide for GE in all sectors, sector by sector (e.g., Azerbaijan, Viet Nam) or generally. Sector by sector better approach

Define whose responsibility it is to promote GE and accountability mechanisms spell out the responsibility of specific public agencies
Provide for NGO/CSO input into state mechanisms Provide for what happens when GEL is breached When (specific date) the GEL should be implemented Provide resources for the GEL to be implemented Can put in all the missing laws into this one legislation (e.g. Azerbaijan) whether it be pensions or sexual harassment or antiflogging measures or womens evidence having the same weight Provide for mass education on gender equality

Implementation and institutions needed to operationalize the GEL

General: create an enabling environment for successful implementation and monitoring of GEL by establishing strong gender architecture throughout all levels of government and in the private sphere
Specific: institute a National Action Plan setting out in detail how the GEL will be implemented, along with commitment to timeframes and regular progress reports

General: Establish Strong Gender Architecture Key Components

Component
1. Ensure existing and future legislation accords with GEL

Activities
Systematically review and revise existing legislation for consistency with GEL Scrutinize future legislation

Possible Institution
Independent, autonomous body (eg. Gender Equality Commission): Adequate funding Staffed by gender experts The Governments central gender policy co-ordinating unit could set policies, action plans and TSM in both public and private sectors.

2. Place positive obligation on public and private institutions to implement GEL

Develop a Gender Equality Plan (including gender mainstreaming) Introduce Temporary Special Measures

3. Monitor compliance and implementation of GEL in all levels of government, private organizations, individuals

Establish system of rewards/incentives, disincentives Introduce punitive measures eg. fines or imprisonment Establish system of regular reporting

Monitored by independent, autonomous body (GEC) which produces a regular report to Ministry of Gender, Family and Human Rights and to Peoples Majlis on the adherence to GEL by public and private institutions.

Component

Activities

Institution

4. Establish an open complaints process

Free of charge for complainants Open standing Burden of proof on violator Clear procedures for establishing liability (rules of evidence, witnesses, timeframe for resolution of complaints etc) Appeals process (eg. to Supreme Court) Establish systematic process to gather gender statistics (eg. disaggregated by sex, other areas not forming part of existing data collection eg. domestic violence, incidence of abortion, unremunerated domestic activities of women) Regularly conduct impact assessments of GEL legislative reforms, policies and programmes to ensure measures taken have led to desired goals Suggested areas of spending: Review existing and future legislation for GEL compliance Compensation to victims Monitoring and evaluation of implementation and compliance with GEL by public and private institutions Promotion and implementation of TSM Promotion of education, research and dissemination of GEL (eg. public awareness campaigns) Training and capacity building to develop national capacity for gender analysis and mainstreaming

Independent, autonomous judicial body (eg. Gender Equality Tribunal): Adequate funding Staffed by gender experts Power to award remedies National Statistical Services, provincial and local government authorities, private bodies

5. Establish a system for the collection of gender statistics in all areas of womens lives

6. Establish review process to determine effectiveness of GEL 7. Establish funding mechanism for all GEL implementation, monitoring and enforcement

Independent, autonomous body (eg. GEC) Establish a Gender Fund. Sources may include: Government budget, international organizations, revenue of agencies, fines received under GEL, interest and other revenues from the Gender Fund

Specific: National Action Plan

NAP is a commitment made by all levels of government to promote equality. NAP enables all institutions of government to take responsibility for the promotion of gender equality and are held accountable to the highest institutions of government for their progress in meeting defined gender equality targets. Key Features:
Devising strategic areas of action including Women and: Human Rights, Employment, Health, Violence, Public Life, Health, Education, Property, Media Target Setting: detailed goals and activities for each strategic area along with timelines, clear process for implementation, clear lines of responsibility and reporting. A monitoring and evaluation tool. Regular progress reports made to the President and to the Peoples Majlis regarding progress on meeting targets

Processes for the enactment of the (proposed) legislation

Presented by the Representative from the Majlis

Process of legislation

Process before tabling of draft Bill

Need for wide consultation

Who presents?
Voting requirements

Challenges?

How to advocate for the GEL strategies to get the GEL passed and public awareness campaign instituted?
Public awareness campaign/strategy is key to successful use/implementation of GEL Group work Task come up with strategies Plenary discussion

Strategies

Use of media Mobilizing groups to support GEL Convincing and persuading with strategic campaign

Mentors and champions of GEL from Majlis and opinion shapers, religious leaders who are potential champions
Lobbying and campaigning Getting a critical mass of support in Majlis before bill is tabled and debated

For More Information

Please contact Imrana Jalal (ijalal@adb.org) Web site: www.adb.org/gender