The CEDAW Committee Gives Name to Obstetric Violence

by Rangita de Silva de Alwis

The post is dedicated to Judge Nancy Gertner of Harvard Law School (former member of the Presidential Commission on the US Supreme Court) for her pioneering work in the area of reproductive health.   

In a historic decision that has major consequences on violence against women in the health care system, at its 84th Session in February 2023, the Convention on the Elimination of Discrimination against Women (CEDAW) Committee in the Communication No. 154/2020 submitted by Spain's MDCP (under the Convention's Optional Protocol), recommended that the State party (Spain) provide effective reparation and financial compensation for the damages that MDCP suffered as a consequence of obstetric violence.  

Radhika Coomaraswamy, the former UN Under-Secretary-General and the first UN Special Rapporteur on Violence against Women, applauded the CEDAW Committee's decision and commented: "Obstetric violence is a very important concept that captures the day-to-day hidden violence that is often directed against women. In my work as Special Rapporteur on Violence Against Women, I met many women who suffered from this kind of violence. I am glad that the CEDAW Committee names this violation. Hopefully, governments, multilateral agencies, and non-governmental organizations will take note."

The CEDAW Committee has, in prior individual communications, decided on facts similar to those in the case of MDCP in the communications of NAE v. Spain ( 2019) and S. FM v. Spain (2018). In those decisions, the Committee has held that the State party was in violation of several rights guarantees of the CEDAW, including, Article 2 on anti-discrimination, Article 5 on anti-gender stereotypes, and Article 12 on the right to health, including reproductive health.  

 

The term "obstetric violence" recognizes how individual instances of obstetric abuse are part of the broader ecosystem of gender-based violence as they result in a loss of autonomy and the ability to decide freely about women's bodies and sexuality. The naming of "obstetric violence" as a way to shed light on previously unacknowledged harm is important because abuse in obstetric and gynecological care is a type of violence often left out of lawmaking on violence against women or gender-based violence. Moreover, the definition of obstetric violence as a subset of gendered violence highlights that it is also a form of structural discrimination and, therefore, needs to be addressed through systemic measures.  

 

The World Health Organization (WHO) has acknowledged that "[m]any women across the globe experience disrespectful, abusive or neglectful treatment during childbirth in facilities."[1] Obstetrics violence includes, but is not limited to, violations of the rights to informed consent and bodily autonomy, which lead to both physical, psychological, and emotional ha ms. Mistreatment during childbirth may be perpetrated by health care professionals well as other professional staff during labor and delivery. The phenomenon is often complicated by the power dynamics present in many doctor-patient relationships. 

 

There is no definition of obstetric violence that is universally recognized in global public health discourse, and the categorization offered by the CEDAW is fluid, part of a continuum, and non-exhaustive. Although the violence includes a wide range of practices, there is obvious overlap between abusive, coercive, and disrespectful treatment. Therefore, the categorization offered by the CEDAW Committee implicitly acknowledges that many incidents women report involve multiple forms of conduct that together may rise to the level of violence.  

 

The discourse on obstetric violence is growing and has been featured in scholarship in the US.[2]  Most references to obstetric violence are still limited to those addressing developments outside the United States.[3] Prompted by advocates in Latin America who have tackled the issue of mistreatment in childbirth directly and, in some jurisdictions, secured legal sanctions against such conduct, advocates around the world have begun to adopt the language of "obstetric violence" to describe and condemn these abuses. 

 

In Latin America, increased attention to the pervasiveness of abusive practices in obstetric care sparked strong grassroots obstetric rights movements. Argentina adopted a legal framework that granted women the right to a humanized childbirth experience in 2004. This framework introduced a human rights-based approach to childbirth meant to guarantee a more dignified and respectful experience in facility-based childbirth. In 2007, Venezuela passed a comprehensive legal framework to protect the "right of women to a life free of violence," which included specific provisions to address the abuse and disrespect of medical professionals against pregnant women. This law begins with definitions of gender-based violence and defines "obstetric violence" as the appropriation of the body and reproductive processes of women by health personnel, which is expressed as dehumanized treatment, and an abuse of medication. Moreover, it addresses the way in which obstetrics violence pathologizes childbirth, causing women's loss of autonomy and their ability to decide freely about their bodies and sexuality, negatively impacting the quality of life of women. The Venezuelan law criminalizes several types of obstetric violence, including the performance of cesarean sections and the practice of artificially accelerating labor without informed and voluntary consent.   

Addressing this yet largely unnamed violence, a former CEDAW Committee Chair, Dubravka Šimonović, tells me, "In 2019, as a Special Rapporteur on violence against women, its causes and consequences, I presented to the UN Human rights Council my thematic report a human rights-based approach to mistreatment and violence against women in reproductive health services, with a focus on childbirth and obstetric violence. I have received testimonies from many women victims that voiced the fact that violence against women in childbirth is so normalized that it is not (yet) considered violence against women." As Simonovic explains,  "The main aim of my report was to frame obstetric violence as gender-based violence against women and girls and a violation of their human rights, with corresponding obligations for States to develop appropriate human rights-based laws, policies, and national women's reproductive health strategies and that they ensure the proper application of informed consent. " She argues strongly that "states should conduct an independent investigation into women's allegations of mistreatment and gender-based violence in healthcare facilities and publish the results and recommendations." In her report, Šimonović further called upon States to: "establish human rights-based accountability mechanisms to ensure redress for victims of mistreatment and violence, including financial compensation, acknowledgment of wrongdoing, formal apology, and guarantees of non-repetition."

 

In the final analysis, of this important decision, the CEDAW Committee articulated an understanding of obstetric violence, beginning with a detailed examination of mistreatment perpetrated by healthcare providers. This case draws on the individual narrative of MDCP to illustrate the serious consequences of health care mistreatment. After developing a nuanced view of obstetric mistreatment and its implications, the CEDAW Committee's recommendations examined the failure of law, policy, and regulation to provide meaningful prevention of obstetrics violence or recourse to remedies in light of harm. Finally, the Committee identifies several factors that create conditions that allow the mistreatment of women during childbirth to occur, including structural factors related to economic and social norms related to gender and pregnancy that shape how health care is delivered. The Committee concludes by calling upon Spain's healthcare systems to offer a shift in obstetric care culture and, ultimately, to secure remedies through the human rights framework of the CEDAW. The CEDAW Committee not only upholds the rights of the victims of obstetric violence to full reparation but also calls for the recognition and prevention of such future forms of violence.   

[1] THE WORLD HEALTH ORGANIZATION, IN THE PREVENTION AND ELIMINATION OF DISRESPECT AND ABUSE DURING FACILITY-BASED CHILDBIRTH (2015), http://www.who.int/reproductivehealth/topics/maternal_perinatal/statement-childbirth/en/ [https://perma.cc/E2UH-L7WP] advocating a plan to prevent "disrespectful, abusive, or neglectful treatment" received endorsements by over 90 organizations. 

 

[2] See Farah Diaz-Tello, Invisible Wounds: Obstetric Violence in the United States, 24 REP OD. HEALTH MATTERS 56 (2016)  

 

[3] See  Debts of Democracy: Framing Issues and Reimagining Democracy in Twenty-First Century Argentine Social Movements, 30 H RV.  UM. TS. J. 165, 201 (2017) (mentioning obstetric violence in context of Argentine dictatorship's impact on women's reproductive health); Liiri Oja & Alicia Ely Yamin, "Woman" in the European Human Rights System: How is the Reproductive Rights Jurisprudence of the European Court of Human Rights Constructing Narratives of Women's Citizenship?, 32 CO UM. J. GENDER & L. 62, 79 (2016) (noting use of term "obstetric violence" throughout Latin America). 

 

Why Gender-based Law Reform During a Time of Covid Must be Sustained

Professor Rangita de Silva de Alwis
Member-Elect to the expert committee on the Convention on the Elimination of Discrimination Against Women (CEDAW) for the term 2023-2026; faculty at the University of Pennsylvania Law School; Hillary Clinton Fellow at Georgetown University; Adjunct Professor of Public Policy, HKS

Read an excerpt of Rangita's forthcoming research, to be published by Michigan Law School in Michigan Technology Law Review's Spring 2023 special issue on the intersection of race, technology, and the law. 

From “Becoming Gentlemen” to Becoming Norm Entrepreneurs: Some Perspectives on Inclusion and Allyship from Penn Law School

Professor Rangita de Silva de Alwis
University of Pennsylvania Law School and Hillary Clinton Fellow at Georgetown University

In the early years of the 1990s, Lani Guinier and her co-authors in “On Becoming Gentlemen: Women’s Experiences at One Ivy League Law School” chronicle a law school experience stratified by gender. Based on survey and focus group data, the authors argue that women at our law school, the University of Pennsylvania Law School, 30  years ago were significantly more likely to experience both discomforts with their class performance and alienation from the learning environment. Two of the hypotheses put forward to examine the causal links between academic performance and classroom experience and overall law school performance and mentorship. 

Thirty years later, in the fall of 2020, the class on Women, Law and leadership Class became an incubator to explore these hypotheses through a set of interviews and collection of qualitative data. We hypothesized that women students' experience in our class would be different from their predecessors studied in “Becoming Gentlemen” by Guinier and her co-authors.  Based on the over 100 interviews of male allies at Penn Law, we claim that this change is mainly due to the transformation in the attitudes of the male peers in the classroom and the conduct of male leaders in the workplace.

The 100 plus male students who were interviewed supported their female peers and the values of gender equality in general. The changes in male attitudes were key to altering the learning and working environments. While Guinier and co-authors  showcased how women were becoming “bi-cultural” and adopting male tendencies to succeed, we noted that  men rather than the women were becoming “bi-cultural.” Men were now more likely to embrace gender-sensitive attitudes and more systemic and structural change on caregiving and workplace organizational behavior.  Most of our respondents found it important to amplify women’s voices, not only because it was the right thing to do but because these diverse voices enriched their own insights on law and life.  

The male ally interviews were combined with mini-surveys on how women in the class experience bias. These mini-surveys were two-pronged: The first survey included fifty women: women in the class on Women, Law, and Leadership, and the women students in the Policy Lab on Sexual Harassment. The second survey included Black women in the class and their peers from outside the class.  

The initial impulse for these surveys grew out of our in-class study of Deborah Rhode’s extensive work on the experiences of women in the legal profession, David Wilkins’s corpus of scholarship on diversity in the legal profession, Kenneth Mack’s work on Sadie T.M. Alexander and the history of Black women in the legal profession, Martha Minow’s scholarship on inclusion, and Vicki Schultz on her examination of implicit bias and women’s experiences in the workplace. We also immersed ourselves in the intersectionality work of Kimberly Crenshaw. We also read text on stereotype threat, such as Claude Steele’s  “Whistling Vivaldi and Other Clues to How Stereotypes Affect Us” and discussed modern-day variations of  bias, including  Isabel Wilkerson’s “Caste: The Origins of Our Discontent.”  

Growing out of class discussions of the “Thousand Papercuts” in Vicki Schultz’s retelling of the biases that women in Silicon Valley face, students suggested mini-surveys of what would constitute modern-day papercuts—those daily indignities and exclusions that women face that in isolation may not be problematic, but in the aggregate could cause damage.   

Although our qualitative data shows that attitudes among male students at Penn Law have changed dramatically, how women internalize stereotypes and the threat that these unexamined assumptions pose remain real and have changed little over the thirty years.     

It is clear that women then as now internalize stereotypes to their detriment.  In “Becoming Gentlemen,” a female student stated 30 years ago: “After I discovered I was being called a feminized dyke, I never spoke in class again.”  In 2020, the vernacular may have changed, but harmful stereotypes still lurk in the shadows, and women tend to self-censure based on the fear of those tropes of the Janus- faced “aggressive” and “meek” female.  However, what differentiates the current women and men of Penn Law from their predecessors 30 years ago is that they are no longer silent about gender and intersectional stratification issues. 

Our data show that subtle biases and stereotypes remain pervasive and might be masked by social protocols that normalize such behavioral attitudes. However, men and women are aware of these invisible barriers to success and are no longer passive bystanders to a parade of caste protocols. In the final analysis, there is a marked shift from Penn Law women “becoming gentlemen” to both Penn Law women and men “becoming norm entrepreneurs” who are interested in changing social norms. 

Survey of Gender Bias in Elite Law Firms in China 

Through a survey of close to 450 emerging women leaders in the law, interviews with male allies and female partners at major law firms in China, four Chinese lawyers who are LLM students at the University of Pennsylvania Law School identified some key barriers to women's leadership and the role of male allyship. In this groundbreaking study, the students used a mixed-methods approach to gather qualitative and quantitative data about the gendered factors affecting women lawyers in selected elite law firms in China.  

One part of this study surveyed nearly 450 young lawyers aged 25- 30 in elite law firms on their experience of bias and attitudes.  What was significant was their attitude toward pregnancy. Given the age group, only 7.92 percent of the women had children, but 100 percent of this cohort agreed that having a child had a negative impact on their career.  Both the quantitative and qualitative data showed a fear of the “motherhood burden” and young women lawyers' fears of the negative impact of motherhood on a career in elite law firms.      

 "Once female lawyers take parental leave, their clients would be grabbed by other lawyers. To endure fairness, I think the only solution is to have mandatory parental leave on both female and male lawyers . . . I am still single, but I am so worried." 

Another lawyer stated:  "I feel sad that there exists no discussion about gender bias in the legal industry in China." This is an important finding. As Joan Williams says in the ABA Commission on Women in the Profession report on "Interrupting Racial and Gender Bias in the Legal Profession, "You cannot change what you cannot see." Seeing then is the first step. As our researchers point out, “It is important that we be trained to "see" gender bias lest it becomes invisible and ignored.”

Black Women Future Leaders

The Report on “Black Women Future Leaders” analyzes the results of a survey of BLSA students and finds that the threat of stereotypes acts as a silencing tool. Even when students may not have had a personal experience of being labeled, they adjust their behavior and speech patterns to avoid those labels. 

As Isabel Wikerson writes in “Caste: The Origins of Our Discontent:”

“Caste is more than rank; it is a state of mind that holds everyone captive, the dominant imprisoned in an illusion of their own entitlement, the subordinate trapped in the purgatory of someone else's definition of who they are and who they should be." 

The reports that grew out of our class discussion examine the insidious and often invisible undercurrents of bias that confine women, especially minority women, in a way that deprives all of us of the use of a basic human trait, the power of our imagination to see outside of a narrowly imagined sense of the world.

On that note of the power of imagination, the speakers in our class shared their art as a powerful tool to open up difficult conversations and share stories. David Hornik shared with us his extensive art collection by Black and Asian artists. He also shared with us Edward McClunny’s print of Thurgood Marshall. We include it in our report.  

New York Public Library General Counsel Michele Mayes, an avid art collector, showed the class a mixed-media piece by Charly Palmer depiction of Martin Luther King Jr. standing in line to vote with one of his daughters.

Lawyer and art entrepreneur Shalini Ganendra discussed curating practices in light of racial injustice.  As a Fellow at Oxford, she discussed her work on the influence of colonization on art and art critique.

The art depicted in the covers of our reports and the reports themselves are an invitation to engage in conversation about these modern-day biases that are hard to address. As Wilkerson says: “Modern-day caste protocols are less often about overt attacks or conscious hostility… They are like the wind, powerful enough to knock you down but invisible as they go about their work.”    

Read the full report here. 

Why CEDAW Helps Strengthen the US's Violence Against Women Act (VAWA)

Ambassador Melanne Verveer
Executive Director of the Georgetown Institute for Women, Peace and Security

Professor Rangita de Silva de Alwis
University of Pennsylvania Law School and Hillary Clinton Fellow at Georgetown University

Rangita thanks Dean Theodore Ruger of Penn Law for his support.

The Violence Against Women Act (VAWA), introduced by then-Sen. Biden, was first signed into law in 1994 to address domestic violence, sexual assault, and stalking through legislation. Since the passage of VAWA, intimate partner violence declined by 64% from 1994 to 2010, according to the U.S. Department of Justice’s Bureau of Justice Statistics. In more recent years, as the law’s support has been uncertain, there has been a 42% increase in these cases between 2016 and 2018, according to the National Coalition Against Domestic Violence.

VAWA has been updated and reauthorized three times—in 2000, 2005, and 2015. Updates over the years have had bipartisan backing and have included new programs to protect elderly and disabled women, mandatory funds for rape prevention and education, new protections for victims of trafficking, undocumented immigrants, and Native American women, and expanded language to be inclusive to the LGBTQ community. 

The CEDAW is the natural extension of this crucial domestic project, bringing the goals of VAWA to the international stage. VAWA’s values are similar to General Recommendation 19 of the CEDAW, which was promulgated by the CEDAW Committee in 1992. General Recommendation 19 deals specifically with gender-based violence and clarifies the definition of gender-based violence and how it is integrated into other articles of the CEDAW even when not expressly in the provision. 

Additionally, the COVID-19 pandemic has made a global effort to end violence against women more necessary than ever. The COVID-19 pandemic has potentially rolled back many of the human rights gains of the past decades. One of the dramatic effects of the pandemic has been an international rise in domestic violence.

In the United States, the National Domestic Violence Hotline reported a 9% increase in calls between March 16—when many states issued lockdown orders—and May 16. There was a 10% increase in domestic violence reports in the same month to the New York City Police Department compared to March 2019. 

The United Nations also reports that the lockdowns lead to increased violence against women, especially domestic violence across the globe. The UN has labeled the rise of violence against women and girls during the COVID-19 outbreak “the shadow pandemic,” referring to the fact that another pandemic affecting the security of women was growing in the shadow of the COVID-19 pandemic.¹

Meanwhile, Ambassadors from 124 UN Member States and Observers have answered the Secretary-General’s recent call to address the surge in domestic violence in the pandemic. These countries have committed to making prevention and redress of gender-based violence a key part of their national response plans. “More than ever, there needs to be zero tolerance for domestic violence,” they wrote in a letter to the UN Chief. They added that women are “not just victims” in the crisis; they also play a major role in COVID-19 response. Following reports that domestic violence in Lebanon has doubled in the last 12 months, figures seen by the Thomson Reuters Foundation, in December 2020, Lebanon revised its domestic violence law to guarantee custody rights of women facing violence in the family.² In many countries around the world, the national domestic violence laws are anchored in the values of the CEDAW. To pick but two countries, the Philippines and Brazil, the CEDAW provides the standard-setting principles for domestic violence laws. The Philippines law of 2004 provides: “Towards this end, the State shall exert efforts to address violence committed against women and children in keeping with the fundamental freedoms guaranteed under the Constitution and the Provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of all forms of discrimination Against Women….” Brazil’s Maria de Penha Law of 2006 states in its Article 1: This law creates mechanisms to restrain and prevent domestic violence against women in compliance with the CEDAW.  

As the Biden administration and Congress work to reauthorize VAWA, they must also look to the horizon—to the ratification of CEDAW. The time for the ratification of the CEDAW is now looking to a more sustainable future and reversing the past history of gender and intersectional inequality. In T.S. Eliot’s words, “What might have been and what has been. Point to one end, which is always present.

1. UN Secretary-General Antonio Guterres has said:

I urge governments to put women and girls at the centre of their efforts to recover from COVID-19. That starts with women as leaders, with equal representation and decision-making power. Nearly 60 percent of women around the world work in the informal economy, earning less, saving less, and at greater risk of falling into poverty. As markets fall and businesses close, millions of women’s jobs have disappeared. At the same time as they are losing paid employment, women’s unpaid care work has increased exponentially as a result of school closures and the increased needs of older people. These currents are combining as never before to defeat women’s rights and deny women’s opportunities. 

2. Timour Azhari, Lebanon passes landmark sexual harassment law, AL JAZEERA (Dec. 21, 2020) https://www.aljazeera.com/news/2020/12/21/lebanons-parliament-approves-landmark-sexual-harassment-law.

Ngozi Okonjo Iweala is the first woman to lead the World Trade Organization (WTO), making inclusion central to multilateral institutions

Rangita de Silva de Alwis
University of Pennsylvania Law School
Nonresident Leadership Fellow at WAPPP and Hillary Rodham Clinton Research Fellow on Gender Equity Georgetown University

UN Under-Secretary-General Phumzile Mlambo Ngcuka
Executive Director of UN Women
Nonresident Leadership Fellow at WAPPP

Our friend, Okonjo Iweala, is also known as “Wahala,” a popular Pidgin English word in Nigerian meaning trouble. She told us, “I loved this nickname …. To me, it was a badge of honor.” As a world-renowned development economist, author, and advocate, Okonjo Iweala has been a force for gender-equal economic development, sustainable financing, and anti-corruption. Okonjo Iweala has held some of the most distinguished positions in the government of Nigeria, the World Bank, and in global multilateral institutions. Okonjo Iweala’s impressive ability to drive change makes her one of the most influential figures on the world stage. In a time of global volatility, it is a time to take stock of how she will govern at the WTO.

In February 2019, we conducted a two-week-long interview on redefining leadership with Okonjo Iweala for our study on “Redefining Leadership in the Age of SDGs.”

"If you find problems, you must find solutions,” she often says. When we asked her about her favorite leadership philosophy, she told us: “Investing in women is smart economics, and investing in girls, catching them upstream, is even smarter economics.” She often turns to Nelson Mandela’s leadership for guidance. Her favorite quote is from that historic day on the evening of May 2, 1994, when Mandela claimed victory in the first democratic elections in South Africa: “I am your servant, I don’t come to you as leader… Leaders come and go, but the organization and the collective leadership that has looked after the fortunes and reverses of this organization will always be there.” Okonjo Iweala feels the same about being a servant leader, a servant leader who is also not afraid to cause trouble. She is also inspired by Desmond Tutu’s definition of the Ubuntu principles. It is a difficult concept to translate into English: “A person is a person through other people.” In Xhosa ubuntu ungamntu ngabanye abantu, and in Zulu umuntu ngumuntu ngabanye means “I am human because I belong, I participate, and I share.” Recently, she sent us her favorite Igbo quote on leadership: “Aka nni kwo aka ekpe, aka ekpe akwo aka nni nwancha adi ocha”. Translated into English: "When the right hand washes the left hand, and the left hand washes the right hand, both are clean.” It speaks to helping each other, partnering, and sharing responsibility together.

A globalist and an African to the core, she sees new opportunities where others see challenges. She sees the problem of a “single story” about any region, especially Africa. The telecom revolution has created a mini-revolution in the area. Africa is ahead with mobile money-pay for solar with cards. Another innovation is the mitigating effects of climate change on 32 countries in Africa through the African Risk Capacity—the weather-based insurance initiative that Okonjo Iweala is heading. The idea she explained to us was for Africans to look for solutions in their own region.

Trained at Harvard and MIT as an economist, Okonjo Iweala served two terms as Finance Minister of Nigeria from 2003-2006 and 2011-2015, and as Nigeria’s Foreign Minister in 2006. She was the first woman to hold both positions. She has spent more than two decades at the World Bank as a development economist, rising to the number-two position of managing director, which she served from 2007-2011. While at the World Bank, she was responsible for an $81 billion operational portfolio, including Europe and Central Asia, South Asia, and Africa. In 2012, she and Colombia’s Jose Antonio Ocampo squared off against American physician Jim Yong Kim in The World Bank’s first-ever contested presidential election. Although she was unable to break the traditional gentleman's agreement on the World Bank leadership, Okonjo Iweala helped to challenge business as usual with her candidacy and has laid the foundation for future challenges from non-Americans, especially from developing countries.

Okonjo Iweala was the head of the board of the Global Alliance for Vaccines and Immunization (GAVI) Board. In this role, along with Larry Summers and the Ministers of Health of developing countries, she spearheaded crucial immunizations and health services to children, focusing on girls in developing countries. A pre-pandemic study in Health Affairs covering 73 GAVI-supported countries over the 2011-2020 period shows that for every US$1 spent on immunization, US$16 are saved in healthcare costs, lost wages, and lost productivity due to illness, and return on investment increases to US$ 44 when taking into account the broader benefits of people living longer and healthier lives. Also, Okonjo Iweala has used her role as chair for the Board of GAVI to introduce a new era of public-private partnerships between multilateral organizations, the private sector, civil society, developed and developing country governments.

As a development economist with a feminist perspective, Okonjo-Iweala implemented a budgetary incentive program that would motivate ministries to implement initiatives to empower girls and women in their sector. Simultaneously, the Ministry of Agriculture had developed a new e-wallet system, which transferred subsidies directly to farmers through the financial technology, removed the government from the supply changes, and allowed farmers to directly purchase the fertilizer and pesticides they needed. Seizing the moment, Okonjo-Iweala offered the ministry a budget increase as a reward for bringing this new, innovative technology to more women. Okonjo Iweala’s leadership efforts enabled 3 million women to participate in the e-wallet program in 2014. Furthermore, as Minister of Finance, Okonjo-Iweala was able to leverage the resources at her disposal to work with other ministers such as the Minister of Agriculture to bring technological and financial resources to women in rural areas. Additional achievements with budget-incentives include the Ministry of Water Resources developing a new system for women to manage their communities’ water and sanitation centers and the Ministry of Public Works developing a new training regimen to propel women into subcontractors' positions in procurement. Within Nigeria, she helped support entrepreneurial citizens through the You WIN Program, the GWiN program (Growing Girls and Women in Nigeria), and the Development Bank of Nigeria.

The greatest war she has fought has been against corruption. A 2002 African Union study estimated that corruption costs the continent roughly $150 billion a year. To compare, developed countries gave $22 billion in aid to sub-Saharan Africa in 2008, according to the Organization for Economic Cooperation and Development. It has been estimated that Nigeria has lost more than 600 billion to corruption since independence. This crusade has threatened her personal security. In 2012, Okonjo Iweala’s 83-year-old mother was kidnapped in retaliation for Okonjo Iweala’s leadership in anti-corruption policies and Nigerian government reform. The kidnappers demanded that Okonjo Iweala publicly resign from office. She did not, and her mother escaped. Okonjo Iweala discusses the danger of confronting deep-seated corruption in her most recent book, Fighting Corruption Is Dangerous (2018). Okonjo Iweala’s vision for macroeconomic reform in Africa considers and combines African culture and history. In Reforming the Unreformable: Lessons from Nigeria (2012), Okonjo Iweala presents a framework used by her and her team that stabilized the macroeconomy, increased economic growth and fiscal transparency, reduced the debt burden, strengthened the integrity of public and civil service, and redirected resources being siphoned to private interest back to the people and the poor. She also details the challenges and confronts head-on the daunting complexity of pushing for macroeconomic and development economic reform, as well as pushing back against corrupt trade, tariffs, and customs practices.

In her most recent co-authored book with Hon. Julia Gillard, Australia's first woman head of state, Okonjo Iweala analyzes leadership lessons of women leaders from Hillary Clinton to Jacinda Arden. At a time when women are helping to steer their countries out of the pandemic, as the first woman and first African to head the WTO, Okonjo Iweala is poised to bring these critical inclusive perspectives to the complex task of a global economic recovery.

--

NgoziOkonjo-Iweala is the fifth Angelopoulos Global Public Leaders Fellow at the Harvard Kennedy School and delivered the Robert S. McNamara Lecture on War and Peace at Harvard in 2019.

HOW THE BLACK LIVES MATTER MOVEMENT IS RESHAPING OUR THINKING ON BIAS IN AI

Rangita de Silva de Alwis, Christian Zabilowicz and Gitanjali Swamy¹

Introduction

As our public reckoning on systemic racism and structural bias reaches its climax following weeks of Black Lives Matter protests around the world, we have been asking ourselves and our academic colleagues what role AI plays in all this – and what role AI ought to play in the future. In the same way that the MeToo Movement challenged our collective conscience about sexism in the workplace, we believe that Black Lives Matter and other movements that aim to address systemic discrimination in society have the potential to reshape our thinking on bias in AI. 

Writing recently in the Atlantic, Secretary Hillary Clinton called for gender blind reviews of resumes in line with the success of gender-blind orchestra auditions. All of this calls for a fresh interrogation of the role of AI in addressing implicit bias in the workplace.   

Many before us have detailed the causes of bias in AI and in doing so have contributed hugely to the positive reforms that have followed. Yet, few have gone further than identifying and addressing the biases that exist on the surface, and fewer still have made the case for AI’s potential to provide the greatest step forward yet towards substantive equality.

Substantive equality, as opposed to formal equality, is a fundamental concept in human rights law which requires proactive and positive measures to be taken to ensure that persons who have faced historic discrimination have a genuinely equal chance of satisfying the criteria for access to a particular social good, such as employment or education.² Whereas formal equality models disavow policies that aim to redress imbalances on a systemic level, a substantive sense of equality envisages an inclusive and intersectional approach that takes into account discriminatory barriers in all its forms, not just those that are obvious or intended.³ In practice, this involves analyzing the particular experiences that a person has lived through, discerning the extent of any disadvantage they have faced, and equalizing the playing field to that same extent, as and when that person seeks to access a social good.

As support for this substantive conception of equality grows, we argue that the time is ripe to shift our focus from reducing surface level bias in AI to find ways to utilize AI as a means of dismantling institutionalized discrimination. Using the employment context to support our position, we submit that this means ending our reliance on formal equality metrics to measure the success of AI systems, to make way for one based on the principle of substantive equality. While we recognize that there are risks to manipulating AI to achieve a particular outcome or result, particularly in countries with a poor track record of public governance and adhering to the rule of law, we argue that by requiring diverse interpretations of the norms subject to manipulation, and by ensuring that the underlying process is fully transparent, such risks can be effectively mitigated. 

The causes of bias in AI

The causes of bias in AI are well-documented but it is important to reiterate them here, for an understanding of such causes is crucial for recognizing why formal equality models fail.

In general, bias is said to creep into AI systems in three ways:

1. PROGRAMMER BIAS: In its most obvious form, bias can get into AI systems through the conscious and unconscious biases of their human programmers. If, for example, a company wanted to use AI to screen resumes and identify leaders within an applicant pool, and that company either conscious or unconsciously believes masculine qualities to be demonstrative of leadership, then the AI system may become discriminatory as a result of the company’s discriminatory interpretation of what constitutes leadership.

2. DATA BIAS: Bias can also find its way into AI programs through source data. Gender, racial and other prejudices can creep into data sets because data sets are often reflective of the deep-seated prejudices in society. When an AI system uses a data set that contains these prejudices, it will reproduce them in its algorithmic outcomes.

3. LEARNING ALGORITHM BIAS: Finally, AI systems that use machine-learning tools can also be biased. Machine-learning algorithms produce outcomes that are in part based on training data and in part based on their own ‘learning’ – it is this second component that can give rise to problems, for the AI system may be capable of drawing its own bias conclusions, and these conclusions will be difficult to identify.

Addressing bias using the formal equality model

After identifying the causes of bias outlined above, most of our colleagues understandably go on to discuss the various ways that we can reduce such bias. For instance, Kimberley Houser, in relation to gender-based bias in AI, argues that we need only follow ‘responsible’ practices when developing and deploying AI to mitigate the risk of bias – she explains that ‘responsible’ practices include cleaning source data before use and employing diverse programmers.⁴ Her view is reflective of the general academic stance on tackling bias in AI.

The problem with this approach is two-fold. First, these practices have severe limitations in and of themselves. While it is true that data sets can be balanced and more diverse slates of programmers can be employed, this, on its own, will not be enough to tackle bias to the extent that Houser suggests. Bias and discrimination are complicated phenomena that have proven to take many forms. Even if we are able to modify data sets so that they are reflective of, say, gender, this will not address the full and intersectional spectrum of bias and discrimination that women experience. For instance, Houser discusses balancing data sets by replicating the profiles of women within the data set – but how will this solve the problem if the profiles of women being replicated are of white women who have never had childcare responsibilities or never been a victim of violence; Houser’s solutions ignore the particular disadvantages attached to the circumstances a person finds themselves in. It is this complexity that suggests more is needed than formal equality.⁵

The second issue, and the one that is of primary concern in this article, is that the approach does not go far enough; it does not redress the institutionalized bias that may exist even when the algorithmic outcome is ‘accurate’. To give an example, consider again an AI system that screens resumes and identifies leaders. Prima facie, the Al system may be doing exactly as the designer intends – producing consistently accurate outcomes that are reached regardless of the candidate’s gender, race, sexuality, or other protected characteristic. Indeed, at this point, many would argue that we have achieved “equality”. However, removing these barriers does not mean that minorities and women who have faced a history of discrimination will in fact be equal. As Fredman explains, “those who lack the requisite qualifications as a result of past discrimination will still be unable to meet job-related criteria.”⁶ The formal equality model assumes that once we have equal opportunities, nothing more needs to be done. But equality of opportunity is compatible with unequal results.⁷

In fact, traditional AI approaches completely miss the point that diversity is a far broader issue than mere checkboxes on a few external demographic factors. To understand what diversity truly means in the human race, we must understand the underlying notion of group collective intelligence. Collective intelligence is a term used to describe a group’s collective capacity and capability to solve diverse problems.⁸ Human collective intelligence is created by differences in people’s perspective, heuristics, interpretations, and predictive models, and those, in turn, are shaped by not just a narrow definition of demographic but a far more inclusive view that includes all identities, experiences, and training. The human race thrives because humans as a species have understood and mastered the utilization of collective intelligence; we have acted on the insight of superior decision capability that diverse groups of average problem solvers consistently outperform homogenous groups of excellent problem solvers.⁹ Thus, bringing diversity into human organizations is even more about creating more effective human organizations than social justice alone. Therefore, it is critical to adjust AI algorithms to remove bias, resulting in maximal collective intelligence, a key facet of human excellence that comes from greater diversity. 

Addressing AI through a substantive equality lens

In view of the above, and in support of BLM and other movements to end institutionalized discrimination and victimization, we believe that AI must adhere to the substantive equality model. Targeting disadvantage rather than aiming at neutrality allows us not only to redress the historic and deep-seated legacy of bias and discrimination by leveling the playing field but emphasizes a representation-reinforcing theory of participation.¹⁰ Indeed, given that past discrimination and other social mechanisms have perpetually blocked the avenues for political participation by particular minorities, representation-reinforcing equality laws are needed in AI to compensate for the muffling of political voice and to open the channels for greater participation in the future. 

But we ought to offer one word of caution. We recognize that there are risks to manipulating AI to ensure a particular outcome or result; we acknowledge that our position may open the pandora’s box for abusive governments to manipulate AI to suit their agendas. However, we argue that these risks can be mitigated if two safeguards are put in place:

1. DIVERSITY OF INTERPRETATIONS: We submit that manipulation must exclusively be focused on addressing the underlying conditions causing bias. This means ensuring respect for diversity of interpretations, rather than retroactively trying to manipulate the end outcome itself. For instance, if AI is to identify leadership qualities in a resume, the algorithm should be trained to identify leadership within a context of pluralism. Leadership, in this case, should not be interpreted through the lenses of a narrow conception of masculinity, but instead look at plural definitions of leadership, including feminist and intersectional views. In other words, AI must adjust for diverse interpretations of a concept or equitable outcome.

2. TRANSPARENCY: We further submit that any manipulation should be fully transparent as well as subject to public governance. We posit that the checks and balances in a functional democracy mitigate most of the risks of foul play. This is analogous to the societal approach to ensuring the voting process in a democracy works; at no stage do we enable any manipulation of say, a government’s voting outcome or outcome based on corporate self-interest; rather, we ensure that the underlying process is fully transparent, free from bias and under public governance. 

Justice Ruth Bader Ginsburg: The Global and the Personal

Justice Ruth Bader Ginsburg knew the dangers of a parochial approach to the law. When necessary, she was not afraid to rely on international and comparative law, both as a justice and as a lawyer, to make a case for equality under the law. She drew upon comparative law for her first brief filed in the Supreme Court, Reed v. Reed, in 1970—the first case to prohibit sex-based classification. For the brief, she extensively referenced reports to the UN on the legal status of women in Sweden as well as the UN Charter. In Grutter v. Bollinger, which challenged the University of Michigan Law School's affirmative action program, she compared the program to the UN Convention on the Elimination of Discrimination against Women' s Temporary Special Measures in Article 4.    

In a 2010 address to American University, she argued that "[t]he U.S. judicial system will be poorer . . . if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own." Learning from others was essential to her, even when it meant breaking down the narrow orthodoxy of nationalist views. In discussing constitution reform in Egypt soon after the Arab Revolution in 2012, she urged the Egyptian lawmakers to look beyond the U.S. Constitution, referencing the South African Constitution. "... if I were drafting a constitution in the year 2012. I might look at the Constitution of South Africa," "That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. … It really is, I think, a great piece of work that was done. "

We are deeply in debt to Justice Ginsburg's impact in changing gender equality laws in the United States. Less is known about her influence in small corners of the world, in places so small, that in Eleanor Roosevelt's words, "they cannot be seen on any maps of the world."   

 

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Rangita de Silva de Alwis, writing above, also shares with us a letter she wrote to the Justice inviting her to Penn Law in 2018 to celebrate her 25th anniversary on the Supreme Court. A letter which the Justice told her reminded her of the important role of fathers as nurturers—a view that shaped her incomparable jurisprudence and legacy. Speaking to Joan Williams, Justice Ginsburg once said: "This is my dream for society....Fathers loving and caring for and helping to raise their kids."      

Dear Justice Ginsburg: 

I am attaching a very personal letter to the formal invitation. I know that my friend Andreas will make sure you get both.  

When my father was visiting at Columbia law School in 1977, he asked his much-admired friend Oscar Schachter for the honor of meeting you. When Prof. Schachter asked him why, he said simply, "I have a little daughter." My father brought back to Sri Lanka for me the photo with the three of you.  Later in the 1980's he bought Tribe's Constitutional Law treatise, and underlined Frontiero v. Richardson for me, reading excerpts aloud to me on warm nights. When I was a law student in Sri Lanka, I insisted that my Dean Sharya De Soysa include the case along with Marbury v. Madison in our comparative constitutional law lecture. After all, my dean was a Harvard woman too. 

In very auspicious ways, that winter of 1994 in Joan Williams' class on Feminist Jurisprudence, the first case we read was Harris v. Forklift -- your first case on the Supreme Court and fittingly on sexual harassment in the workplace. I still remember the excitement in our seminar room as we discussed how you would make a difference on the Supreme Court and in the world.  

I went on to highlight VMI's heightened review standard as well as your early intermediate scrutiny test in Craig v. Boren on sex-based classification in my courses on Women and Comparative Law, which I taught with Judge Nancy Gertner in China. Your work continues to be a leitmotif throughout my life.   

 Twenty-five years after coming to this country and twenty-five years after Harris v. Forklift, I am now at Penn Law. I know that having you with us will make the same difference to our brilliant students that you made in my life. 

Thank you, 

Rangita             

 

Rangita de Silva de Alwis

University of Pennsylvania Carey Law School

Nonresident Leader in Practice at Harvard Kennedy School's Women and Public Policy Program (2019-2021)