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. 

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

Crises, emergencies, and times of unrest have been linked to increased gender-based violence (GBV). Following the declaration of lockdown and quarantine during the COVID- 19 emergency, spawned different legal measures to address the spike in GBV.  This post is part of a longer study reviewing the measures adopted by different governments in response to the public health crisis. Although part of a constellation of legal measures promulgated during COVID-19, these laws and policies are also consistent with the state’s obligations under the Convention on the Elimination of Discrimination against Women (CEDAW). Further, we argue that concrete economic measures too are important to prevent gender-based violence in a holistic way. 

In the first section, we analyze a few representative laws that were implemented to address gender-based violence during COVID. Next, we look at revisions in law that take steps to shrink the gender gap in women’s equal participation in the economy.  Finally, we analyze how these new revisions are not only consistent with state accountability under the CEDAW but are also necessitated under their treaty obligations in reporting to the CEDAW Committee.         

Law Reform on Gender-Based Violence

Several states enacted emergency services for women survivors of gender-based violence.  France enabled remote protection orders for women survivors of domestic violence through the “sexual and sexist violence reporting platform.” Specifically, this reporting mechanism allowed women to directly interact with law enforcement officials trained in gender-based/sexual violence to file claims, during lockdown.¹ South Africa enabled access to courts for women survivors of violence to address, prevent and combat the spread of COVID -19 in all courts, court precincts and justice service points. Article 20(b) of the Directions issued by the Minister of Justice provides that applications for interim protection orders, against domestic violence and harassment, could still be heard during the lockdown period.²Moreover, South Africa provided other services for women survivors of violence through the development of a strategic plan.  South Africa’s National Strategic Plan on Gender-Based Violence in the midst of an increase in cases of gender-based violence during the imposition of the COVID-19 lockdown restrictions,  amongst other things, broaden the access to justice for survivors of gender-based violence.³ El Salvador provided access to hotlines for women survivors of violence on April 21, 2020, through the establishment of El Centro de Atención Telefónico.  A free helpline operated 24/7 and provided assistance for gender-based violence, violence against children, adolescents, the elderly, and domestic violence cases.⁴ Lebanon too provided remote protection orders for women survivors of domestic violence through the Attorney General of the Court of Cassation’s Public Circular. The circular provides procedures for obtaining protection orders remotely and instructs public prosecutors specialized in domestic violence to take all possible measures to protect women victims and their children, including not requiring the victim to be present in the judicial police center for her testimony in case she indicates that she cannot move due to health conditions and/or allowing the specialized appeal to the General Attorney to hear the victims’ testimony via technological means, or by any other means available. Lebanon enabled access to courts for women survivors of violence through the Attorney General of the Court of Cassation’s Public Circular. In dealing with cases of domestic violence, the specialized Appeal General Attorney would listen to the victim personally, via technological means and/ or by any appropriate means. Egypt promulgated a Ministerial Decree⁵ specifically addressing domestic violence⁶ which provided psychological services for women survivors of violence on May 6, 2020, through the “Our Mental Health is a Priority” initiative. This initiative provided psychological assistance to women survivors of violence during the COVID-19 pandemic and raised awareness regarding the availability of psychological and social services available to families in times of crisis.⁷

Law Reform on Women’s Economic Participation 

Although unrelated to Covid, during the period of 2020-2022, several states removed barriers to equalize opportunities for women to enter the labor market and receive equal wages for equal work. Bahrain, Benin Burundi  Costa Rica, Montenegro, Saudi Kingdom, and Vietnam prohibited discrimination in employment and legislated equal pay for equal work.⁸ Bahrain, Saudi Kingdom, Vietnam, and Cost Rica repealed the prohibition against night work and in jobs that were previously closed to women.⁹ Vietnam, The Marshall Islands prohibited discrimination in access to credit and both Marshall Islands and Montenegro allowed for equal opportunity to register a business.¹⁰ In the Sindh Region, Pakistan the ban on women's nighttime employment was repealed however, the restrictions on registering women-owned business remains.¹¹ During this period, Senegal prohibits discrimination based on gender when calculating health insurance premiums.¹² The UAE made some comprehensive reforms, including equal pay for equal work but also recognized women as heads of household and allowed equal rights for a woman to choose her place of residence. Moreover, the UAE Centra bank prohibited gender discrimination in access to credit.¹³ In Gabon too similar measures were taken to equalize both employment opportunities for women and to provide equal access to economic opportunities.¹⁴ Women may choose their place of residence, are recognized as heads of household, have equal access to credit and can open a bank account in their name, and have equal administrative authority over marital assets, including ownership of property. 

Accountability Under CEDAW’s Article 2 on the Elimination of Gender Discrimination

General Recommendation 19 of the CEDAW in Paragraph 23 enumerates that “Lack of economic independence forces many women to stay in violent relationships. Further, it points out that “The abrogation of their family responsibilities by men can be a form of violence, and coercion.” In light of these comments, the Committee on the Elimination of Discrimination against Women recommends: (a) States parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act; (b) States parties should ensure that laws against family violence and abuse, rape, sexual assault, and other gender-based violence give adequate protection to all women, and respect their integrity and dignity.

CEDAW’s Article 2(a) calls for laws on the elimination of gender discrimination.

Articles 2(b) and (c) overlap in a number of respects. 2(b) requires that a state adopts a range of measures prohibiting discrimination against women.  In the treaty-specific guidelines, the CEDAW Committee requests information on any remaining or emerging obstacles to the exercise and enjoyment by women of their human rights and fundamental freedoms....as well as information on measures envisaged to overcome those obstacles." The Committee sees Article 2(b) as well as Article 2(c) as the source of the State party's obligations to ensure the availability of remedies for women subject to discrimination. Article 2(f) requires states to modify or abolish discriminatory laws regulations, and practices. Further, in In General Recommendation 28, para 32, the Committee states that the obligation for remedies means that states must provide reparation to women whose rights are violated.  Reparation includes reparation such as monetary compensation, restitution, rehabilitation, and reinstatement. General Recommendation 28 requires the availability of appropriate remedies, including financial penalties and punishment in case the state and non-state parties do not fulfill their obligations.  

Article 2(e) requires that States address discrimination against women by private or non-State actors.  Article 2(e) imposes a due diligence obligation on States parties to prevent discrimination by private actors. 2(g) modify or repeal discriminatory penal provisions.¹⁵   

Conclusion:

The legal measures adopted during COVID to increase women’s access to justice and economic equity should be seen not as episodic in nature but as part of the state’s obligations under the CEDAW.  

Article 15 of the CEDAW embodies the principle of equality before the law, which is to be interpreted broadly, meaning equal access to courts and to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs, and practices that constitute discrimination against women. This also includes that legal services must be accessible to women to claim their rights.

In 2015, the CEDAW adopted General Recommendation 15 which outlined six interrelated and essential components — justiciability, availability, accessibility, good quality, accountability of justice systems, and the provision of remedies for victims — as important cornerstones to ensure access to justice. Moreover, the General Recommendation emphasized that accessibility requires that all justice systems, both formal and quasi-judicial systems, are secure, affordable, and physically accessible to women, and are adapted and appropriate to the needs of women including those who face intersectional or compounded forms of discrimination. 

In the final analysis, we argue that while these COVID-related reforms help to broaden access to justice for women during a time of crisis, these measures must be sustained as part of a way to address the structural inequalities women face in access to justice as guaranteed in the CEDAW.

1. Loi No.2010-769; Code Pénal, Arts. 132-80, 222-8(4° ter) et 222-24(11°) – Law specifically addressing domestic violence (2022); (WBL 2022 DATA WBL1971-2022 Dataset).
2. (2020) (WBL2021_COVID19Data_22Feb2021).
3. (2020) (WBL2021_COVID19Data_22Feb2021).
4. Ley Contra la Violencia Intrafamiliar; Ley Especial Integral para una Vida Libre de Violencia para las Mujeres, Art. 8(k) (2020); (WBL 2022 DATA WBL1971-2022 Dataset).
5. Ministerial Decree No.827/2021, Art. 1 (2022)
6. (WBL 2022 DATA WBL1971-2022 Dataset)
7. (2020) (WBL2021_COVID19Data_22Feb2021)
8. (WBL 2022 DATA WBL1971-2022 Dataset)
9. (WBL 2022 DATA WBL1971-2022 Dataset)
10. (WBL 2022 DATA WBL1971-2022 Dataset)
11. (WBL 2022 DATA WBL1971-2022 Dataset)
12. Loi No. 2003-14 du 4 juin 2004 relative aux Mutuelles de santé, Art. 8 (Nondiscrimination in access to health care)
13. (WBL 2022 DATA WBL1971-2022 Dataset)
14. (WBL 2022 DATA WBL1971-2022 Dataset)
15. Code du Travail, Art. 8 (2022) (prohibiting discrimination) (WBL 2022 DATA WBL1971-2022 Dataset) 

Code Civil, Arts. 114 nouveau et 254 nouveau (women may choose where to live in the same way as men) (2022) (WBL 2022 DATA WBL1971-2022 Dataset) 
Code Civil, Art. 253 nouveau (women can be head of the household in the same was as men) (2022) (WBL 2022 DATA WBL1971-2022 Dataset) 
Code Pénal 2021, Arts. 291-3 et 291-4 (prohibiting discrimination in access to credit based on gender) (2022) Id 
Code Civil, Arts. 257 nouveau et 262 nouveau (women can open a bank account in the same way as men) (2022) Id 
Code Civil, Arts. 335 nouveau et 336 nouveau (men and women have equal ownership rights to immovable property) (2022) Id 
Code Civil, Art. 335 nouveau (law grants spouses equal administrative authority over assets during marriage) (2022) Id 
(WBL2021_COVID19Data_22Feb2021). Federal Decree Law No.6 of 2020, Art. 1 (equal renumeration for work of equal value) (2021) (WBL 2022 DATA WBL1971-2022 Dataset) 
Personal Status Law No.28/2005, as amended by Federal Decree No.5/2020, Art. 71 (a woman may choose where to live in the same way as a man) (2021) (WBL 2022 DATA WBL1971-2022 Dataset) 
Decree-Law No.9 of 2019 on Social Security (women can be head of the household in the same way as men) (2020) (WBL 2022 DATA WBL1971-2022 Dataset) 
Central Bank of the UAE Notice No.CBUAE/BSD2019/3457 (prohibiting discrimination in access to credit based on gender) (2020) Id