Gender and disability: the Convention on the Elimination of all Forms of Discrimination against Women
7.2 The general application of CEDAW norms in the context of disability
General Recommendation No. 18 on “disabled women” focuses explicitly on women with disabilities and urges States parties to provide information on their situation in their periodic reports.
Among the general recommendations dealing with non-discrimination rights (as distinct from different categories of women), General Recommendation No. 24 on article 12 (women and health) contains a reference to women with disabilities. The content of the two general recommendations will be further analysed below.
7.2 The general application of CEDAW norms in the context of
vocational rehabilitation services than disabled men.19 Article 11 of the Convention requires States parties to eliminate discrimination against women in employment. The standard of comparison is relevant in this context. It makes little sense to compare disabled women with non-disabled men (or women) since members of these groups usually do not need vocational rehabilitation. The relevant comparator is thus disabled men.
7.2.1 Applying CEDAW in the context of disability: the relevance of General Recommendations Nos. 18 and 24
As the wording of the provisions of the Convention is of a general nature, the role of the general recommendations is to elaborate and apply CEDAW rights in specific contexts. General recommendations are an important means of making explicit the inclusion of women with disabilities in the protection against discrimination enjoyed by all women under the Convention.
General Recommendation No. 18 mentions the need to take measures (including special measures) in the areas of employment (article 11), education (article 10), health services (article 12) and social security (article 13). It urges States parties to provide information on the situation of women with disabilities in their reports. It recommends:
that States parties provide information on disabled women in their periodic reports, and on measures taken to deal with their particular situation, including special measures to ensure that they have equal access to education and employment, health services and social security, and to ensure that they can participate in all areas of social and cultural life.
The emphasis on participation in the above excerpt is noteworthy.
General Recommendation No. 24 on article 12 (women and health) analyses the right to health and specifically refers to women with disabilities.20 In paragraph 6, it urges that:
special attention should be given to the health needs and rights of women belonging to vulnerable and disadvantaged groups such as … women with physical or mental disabilities.
It acknowledges that certain cultural or traditional practices such as female genital mutilation carry a high risk of causing disabilities in women (para. 12(b)). Moreover, the Committee recommends (in General Recommendation No. 14) that States parties
“take appropriate and effective measures with a view to eradicating the practice of female circumcision”. General Recommendation No. 24 also expresses a concern for the health status of older women who live longer than men and who are susceptible to disabling conditions (para. 24).
General Recommendation No. 12 on “violence against women” requests States parties to include in their periodic reports information concerning the incidence of violence against women. Although it does not specifically mention women with disabilities, it can logically be interpreted to include them, perhaps especially in the context of
19 Ibid.
20 Paras. 5, 6, 12 (b), 24, 25 and 27.
institutional environments. General Recommendation No 23, an important recommendation on “political and public life”, fails to mention women with
disabilities and their difficulties in the political arena. Again, however, logic indicates that women with disabilities are implicitly included.
In addition to its general recommendations, the Committee has indicated that other sources can be used in the interpretation of CEDAW rights as they relate to women with disabilities. General Recommendation No. 18 refers to the World Programme of Action concerning Disabled Persons21 and the Nairobi Forward-Looking Strategies for the Advancement of Women.22 In addition, the guidelines for preparation of reports by States parties under CEDAW23 request States to provide information on measures taken to implement the Beijing Declaration and Platform for Action.24 The specific situation of women with disabilities is mentioned in all of these instruments.
The 1993 Standard Rules on the Equalization of Opportunities for Persons with Disabilities25 are not referred to in General Recommendation No. 18 (adopted in 1991). Nevertheless, there is nothing to impede the use of the Standard Rules as a guide for interpretation of CEDAW rights in the context of women with disabilities.
7.2.2 General State obligations in the context of women with disabilities (article 2)
Article 2 of CEDAW sets out the following general obligations of States parties:
States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women.
21 General Assembly resolution 37/52 of 3 December 1982.
22 See http://www.un.org/esa/gopher-data/conf/fwcw/nfls/nfls.en.
23 CEDAW/C/7/Rev. 3, paras. 8, 13 (f).
24 Beijing Declaration and Platform for Action, Fourth World Conference on Women (A/CONF.177/20).
25 General Assembly resolution 48/96 of 20 December 1993.
Two features are noticeable about State obligations under CEDAW. First, the declared goal of CEDAW is complete equality in practice between men and women. Second, States parties are responsible not only for their own acts of discrimination but also for discriminatory acts committed by private actors. Article 2 (a) to (g) sets out some of the measures that States parties are required to take in pursuit of their policy of eliminating discrimination against women, including women with disabilities.
Under article 2, States parties are required to incorporate the principle of equality between men and women with disabilities in their national constitution and other legislation and to ensure the practical realization of this principle. They should prohibit all discrimination against women, including those with disabilities, by adopting legislative and other measures, including sanctions. They should ensure that women, including those with disabilities, enjoy legal protection of their rights equal to that enjoyed by men and that protection against discrimination is ensured through competent national tribunals and other public institutions. States parties should refrain from any act that discriminates against women, including those with disabilities, and ensure that all public authorities do likewise. They are required to modify or abolish existing laws, regulations, customs and practices that discriminate against women with disabilities by taking all appropriate measures, including legislation. Lastly, they are required to repeal all national penal provisions that constitute discrimination against women, including those with disabilities.
General Recommendation No. 6 on "effective national machinery and publicity"
recommends that States parties:
1. Establish and/or strengthen effective national machinery, institutions and procedures, at a high level of Government, and with adequate resources, commitment and authority to:
(a) Advise on the impact on women of all government policies;
(b) Monitor the situation of women comprehensively;
(c) Help formulate new policies and effectively carry out strategies and measures to eliminate discrimination.26
States parties are thus required to establish effective national machinery to advise on the impact of all government policies on women, including those with disabilities.
7.2.3 The permissibility of temporary special measures in the context of women with disabilities (article 4)
Article 4 of CEDAW allows for (but does not require) temporary special measures in favour of women. It reads as follows:
1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.
26 HRI/GEN/1/Rev. 5.
2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.
According to article 4 (1), advantages in the form of "quotas" or different forms of priority access in areas such as education or employment that are used to accelerate the achievement of equality between women with disabilities and men do not constitute discrimination.27 Such measures should be discontinued, however, when equality of opportunity and treatment has been achieved.
Article 4 (1) is based on the belief that one day equality of opportunity and treatment between men and women will be achieved so that special measures will no longer be necessary. By contrast, article 4 (2), which deals with special standards protecting maternity, has no time limit because, however much society changes, women will still get pregnant and give birth. In fact, women with disabilities face greater difficulties than able-bodied women in respect of maternity.
Most of the lack of equality of opportunity and treatment with respect to disability is based on societal prejudice and can be challenged and changed by the use of temporary special measures. For example, if enough women with disabilities obtain the support they need to break down existing barriers created by prejudice and misunderstanding and to enter mainstream employment, their place there and the presence of "difference"
will soon be recognized and accepted as normal. Future generations of women with disabilities will no longer face the same social barriers and hence no longer need
"quotas" or different forms of priority access to employment. Still, as in the case of maternity, there may be aspects and forms of disability that will always necessitate special measures in order to achieve equal opportunity and treatment.
It will be recalled that the Committee recommends in General Recommendation No. 18 that States parties submit information on "special measures" in their reports. It thus views the application of special measures as central to the enjoyment of CEDAW rights by women with disabilities.
7.2.4 The State party reporting process: the required content of reports in respect of women with disabilities (article 18)
Article 18 reads as follows:
1. States Parties undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, a report on the legislative, judicial, administrative or other measures which they have adopted to give effect to he provisions of the present Convention and on the progress made in this respect:
(a) Within one year after the entry into force for the State concerned;
(b) Thereafter at least every four years and further whenever the Committee so requests.
2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Convention.
27 Ibid.: General Recommendation No. 5 on "temporary special measures" encourages States parties to
“make more use of temporary special measures such as positive action, preferential treatment or quota systems to advance women’s integration into education, the economy, politics and employment”.
According to article 18, State party reports should describe the "legislative, judicial, administrative and other measures" that they have taken to fulfil their obligations under CEDAW. Reports should also provide an account of progress made and indicate factors and difficulties experienced.
A more detailed account of States parties' reporting obligations is contained in the
"Guidelines for preparation of reports by States parties". The Committee adopted the first version of the guidelines in 1983 and the latest revision in 1996.28 According to the guidelines, initial State party reports should be divided into two parts.
Part I should be prepared in accordance with the consolidated guidelines for the initial part of State party reports submitted under all other human rights treaties. 29 Part II of initial reports should provide specific information regarding each article of the Convention, including relevant constitutional, legislative and administrative provisions in force. The Committee requests States parties to submit copies of the legal and administrative texts referred to in their reports. If the original text is not submitted, the report should be comprehensive enough to be understood without it.30 In addition to information on the legal status of women, Part II of initial reports should contain information on the de facto status of women and their level of enjoyment of each of the CEDAW rights. States should endeavour to provide data disaggregated by sex in all areas covered by the Convention and the general recommendations.31 States parties should also provide additional information on progress made in the realization of each right since the entry into force of the Convention, including information on the establishment of programmes and institutions.32 Initial reports should include information on obstacles33 to the equal participation of women in political, social, economic and cultural life.34 The report should also indicate any restrictions or limitations imposed by law, practice or tradition or in any other manner on the enjoyment of each right under the Convention.35 It should contain information about NGOs and other women’s associations, including their participation in the elaboration and implementation of plans and programmes by public authorities.36 All initial reports and supporting documentation should be submitted in as concise a form as possible and in one of the working languages of the Committee.37
States parties should further report on any reservations made to the Convention. In the case of substantive reservations, they should indicate why they are considered
necessary, whether the State party has made comparable reservations to rights and obligations in other treaties that are consistent with the reservations to CEDAW, what
28 CEDAW/C/7/Rev. 3.
29 Consolidated guidelines for the initial part of reports of States parties, (HRI/CORE/1, annex).
30 CEDAW/C/7/Rev. 3, paras. 4 (a), 6.
31 Ibid., paras. 4 (d), 5. See also General Recommendation No. 9 on statistical data concerning the situation of women (HRI/GEN/1/Rev. 5).
32 CEDAW/C/7/Rev.3, para. 4 (b) and (c).
33 General Recommendation No. 1 on reporting by States parties (HRI/GEN/1/Rev. 5).
34 CEDAW/C/7/Rev. 3, para. 7.
35 Ibid., para. 4 (e).
36 Ibid., para. 4 (f).
37 Ibid., para. 10.
the precise effects of the reservations are in terms of national law and policy, and whether there are any plans to limit the effects of reservations or to withdraw them (including a timetable).38 If a State party has made general reservations that do not refer to specific articles of the Convention, or if it has made reservations to articles 2 and 3, it should make a particular effort to provide information on the effect and interpretation of such reservations.39
The guidelines for second and subsequent reports are similar to those for initial reports. They should cover matters that were not included in the initial report and concentrate on the period of time since the consideration of the last report by the Committee.40 They should furthermore have regard to the deliberations of the
Committee concerning the preceding report, include legal and other measures adopted to implement the Convention since the last report and describe progress made in eliminating discrimination against women.41
In the context of disability, General Recommendation No. 18 observes that State party reports contain scanty information on disabled women. Referring to article 3 (basic human rights and fundamental freedoms), it expresses concern about women with disabilities, "who suffer from a double discrimination linked to their special living conditions".42
Although General Recommendation No. 18 identifies priority areas for reporting in respect of women with disabilities (human rights and fundamental freedoms and special measures in education, employment, health services and social security), it clearly does not imply that States parties are thereby relieved from reporting on women with disabilities under the other provisions of the Convention.